RIGHTS OF STATUS IN MODERN LAW.

BY SIR PAUL VINOGRADOFF.

Corpus Professor of Jurisprudence, University of Oxford.

According to a famous dictum of Maine, society in its legal evolution has been moving from status to contract. It would be impossible to maintain that this generalization holds good for our age; I should like to give certain reasons to justify this qualification.1

To begin with, let us notice the peculiarity of the conception of status. It is applied, not to a homogeneous set of rights and duties, but to a heterogeneous complex of rights and duties held together by some personal attribute. The status of a slave, of a freedman, of a priest, of a husband is thought of as a combination of various personal qualities and liabilities. For this reason rights of status emerge, as it were, outside the received classification of rights. One cannot say that the status of a priest is either a jus in rem or a jus in personam; various real and personal rights may be derived from it or be connected with it, but it is not thought of primarily as established against "all the world" or in regard to one or the other person. It is a social position dependent on the performance of certain social functions. The status of a husband or of a wife, though sounding in contract in certain respects is certainly not a contract in its essence, and its legal treatment is affected in every way by the recognition of the fact that marriage is the basis of the family, and insofar a most important element of social life. It seems almost as if one more variety should be added to the usual classification: by the side of rights against the world and rights against certain persons we ought to register rights against the social organization.

'Dean Roscoe Pound, in his recent book, Interpretations of Legal History, p. 51, criticises Maine's generalization from a different point of view and with different results.

This means that status has to be considered fundamentally as a conception of public law, whatever consequences may be attached to it in private law. History fully justifies this analytical conclusion. As Maine has pointed out, there was a long period of cultural development in which status exercised a potent influence on the structure of law, and we may add that this influence is clearly connected with the public character of the relations of status in the ancient and the mediæval world. The Roman paterfamilias was a ruler in fact and in law over his wife and children, his son was a person alieni juris, the legitimate wife was, as a rule, subjected to manus, the spinster to parental authority or agnatic tutelage. It is hardly necessary to insist on the public character of slavery or of manumission. Turning to medieval society we find it differentiated in the various "estates": each of these appears as a definite social group endowed with political privileges and functions. Kings have to reckon with this fact when they want to exert national action-they have to appeal for support to the estates-barons, knights, townsmen, clergy, merchants, judges-which are recognized as public forces.

The movement which characterizes modern history from the XVI. century to the XIX., and which found its greatest manifestation in the French Revolution of 1789, was directed towards individualism. Society was re-organized on the basis of free agreement between its members. Contract became the principal form of co-operation and all social relations were considered as mobile groupings between free individuals of equal standing. This is the social process which Maine had in view when he wrote down his dictum, and undoubtedly he had good reason for such a formulation. Not to speak of the disappearance of the status of subjection in the shape of slavery or serfdom in their various grades and of the almost universal abolition of privileges connected with "noble" birth, the tendency

The German Stand means primarily "condition," hence class."

of this cultural period was directed towards breaking up semi-public combines "in restraint of trade" in the shape of guilds and crafts, and towards loosening the discipline of family organization. This process is very conspicuous in French law. The Code Civil introduced contract into the legal relation of marriage, and made it the basis of property relations between husband and wife, but kept up a privileged position for the husband as regards the management of the household and the discipline of the family. Art. 213 of the Code Civil declares that the husband owes protection to his wife, while the wife owes obedience to her husband. The administration of their common fortune is submitted in various degrees to the control and direction of the husband: the wife cannot dispose of it or assume obligations without his consent. Some recent laws have modified this régime of incapacity by certain admissions of the independent right of married women. Her savings deposited in a savings bank are protected against arbitrary appropriation by the chief of the household (Law of April 5th, 1881). A salary earned by a married woman cannot be seized by the husband (Law of July 13th, 1907). But the gradual movement of emancipation is far from complete even now. In fact the whole of the so-called feminist movement may be traced to a reaction against inequalities in the political and juridical status of men and women. This development is governed by the idea of equity in the treatment of individual members of society.

These results are substantially modified by the necessity of compromises with ideas of public utility and moral obligation acting, as it were, at right angles to the tendency towards equality of rights as between the members of a community.

There are, in fact, strong currents in modern social evolution which bring about legal situations that cannot in any way be subordinated to notions of free agreement and call for a revision of the view that the

'See Charmont, Les transformations du droit civil, pp. 93 ff.

law of status has ceded its place to voluntary agreements. A leading German writer, the late Professor Jellinek, has constructed a theory of modern public law in which rights of status play a conspicuous part.* In analysing the theory of the legal state (Rechtsstaat)an expression which might be interpreted in English by "rule of law"-he came to the conclusion that, although the powers of the State cannot be derived from a concession by individual members of their natural rights for the sake of obtaining protection and guarantees for the rest of these rights, the State is limited in the exercise of its powers by the recognition of juridical relations with citizens on the basis of their status. In other words status, according to Jellinek is the public law standing of individuals in accordance with certain juridical grades. He distinguishes four grades of this kind-the status of subjection, the status of freedom, the status of citizenship and the status of active or enhanced citizenship. The lowest of these grades would be formed by slaves, serfs and the like a group which has disappeared from the law of modern civilized communities. The second group embraces all persons to whom personal freedom is guaranteed; it comprises the negative qualification of freedom-freedom from personal injury and imprisonment, from compulsion as to creed or opinion, from impediments as to settlement, travel, trade, etc. Citizenship is more difficult to formulate: it concerns, according to Jellinek, right of juridical action (Rechtsschutz), and consideration of interests. The last item. is not clearly characterized from a juridical point of view, but the author connects them with the administrative activity of the State in providing for public health, public order, public education, etc. Lastly comes the group that covers active citizenship as expressed in electoral franchise, the standing of deputies in national and local assemblies, the status of officials and heads of States. I am recalling these

*G. Jellinek, System der subjectiven offentlichen Rechte. Freiburg i. B. 1892.

positions of Jellinek because they present the most explicit treatment of Status in modern literature of public law. But, as sometimes happens in the case of theoretical works, the construction is too much governed by abstract concepts, although there is plenty of concrete material which could have been used in the course of the inquiry.

Some of the abstract definitions of Jellinek's scale can be easily criticized. There is no other reason for severing rights of free status from rights of citizenship than the fact that the first are wider than the second-they do not apply to different groups, but can be claimed by the same persons-and therefore if treated as rights of status they ought to be combined in one and the same class. Why should the right to bring an action as to property or reputation be separated from the right to defend one's freedom of intercourse? One set of rights may be defended by rules as to expropriation, another by rules as to habeas corpus and the like. The right to bring an action before the regularly constituted courts is quite as much a fundamental right of the free Englishman or American as his right to petition for the dress of grievances."

In such cases the reference to the status of free man or citizen may, of course, be used rightly, but it would be used in a different sense from that in which it applies to the special position of a group or order of society. In all these respects there is no room for the legal differentiation on a social basis which formed the characteristic feature of status in predemocratic society. Such differences as still exist are dwindling and exceptional. All the rules just mentioned appertain to general public law and may be described as regulating the relations between the State and normal individuals. Their "negative" character is only apparent when we look at them from the point of view of restrictions 'See Leslie Scott and Hildersley, The right of requisition, pp. 17 ff.

• Chester v. Bateson, L. R. (1920), K. B. D., January 29. 'See Dicey, Introduction to the Law of the Constitution (8th ed.), p. 480 ff.