For and Against Marriage: A Revision

Authors

Anita Bernstein, Emory UniversityFollow

Abstract

When anthropologist Henry Sumner Maine issued his famous proclamation that modern legal development evolved "from Status to Contract," he used juridical categories to make a statement about progress. Voluntary relations now build the law, Maine declared. The alternative to voluntary relations - identity-based legal labels to decree what people may and may not do - must relocate to the dustbin of history. Only a backwater society would keep them. American legal change in the century-plus since Maine's death in 1888 gives credence to the claim that status inexorably yields to contract. At one level, newer developments refute the Maine thesis. "Stalkers," "telemarketers," "date rapists," "reciprocal beneficiaries," "surrogate mothers," and other noun-phrases have joined the roster of what the law recognizes as shorthand for duties, entitlements, and liability. Labels continue to emerge; rights and obligations attached to them flourish. Meanwhile older status roles like "tenant," "landlord," and "employer" have acquired more legal force, rather than less, in the last dozen decades.

Recommended Citation

Anita Bernstein, For and Against Marriage: A Revision, 102 Mich. L. Rev. 129 (2003).
Available at: https://repository.law.umich.edu/mlr/vol102/iss2/1