Beyond Opposition:On the Concept of Status under the Common Law Theory of Contract
Abstract: The internal tension between “status” and “contract” continously attracts scholarly attention to the “Maine thesis”.Past authors have both argued human society evolves “from status to contract” or,a modern trend of “from contract to status” has emerged.However,existing legal practices and academic narratives entrench the underlying oppositional paradigm of “status” and “contract”.This paper attempts to abolish this paradigm by examining the evolution of contractual theory under the Anglo-American common law.An exploration of the varying concept of “status” shows how it plays a role under the frameworks of contract theories.Based on the abstract individuality and empahsising on the formal fairness,classical contract theory shaped a system of distribution that incentivise the bourgeoisie.Neoclassical contract theory corrected the shortcomings of classical contract law and recognised the plurality of contracts and their subjects.The relational contract theory attempts to overturn the existing traditional legal system of contract law and emphasises contractual solidarity and social cooperation from the external perspective of social structure.Different meanings were embodied to the concept of status in the evolution of contract law theories: the classical contract law theory reduced status to an individuality of homogenity and abstractness; under the neoclassical contract theory,the reconcpetualisation of status enabled the laws to regain substantive fairness that has been neglected under the classical contract law; under the relational contract theory,status acts as the component of enhancing social cooperation.
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