Hailed as “a landmark in the analysis of social structures”, Henry Maine’s intuitions on “the movement of progressive societies (…) from status to contract” have exerted a strong influence in the social sciences. At first glance, his work appears to be especially relevant where one attempts to grasp the essential differences between the legal position of the individual in societies in which he is bound to group-membership and in societies of which individuals appear to have become the basic “units”. Maine thus seems to anticipate on investigations, soon to become central in the social sciences, into the transition from societies based on estates to societies based on class—or the advent of a society “of individuals”—understood in each case as the transition towards modernity. However, the reader turning the pages of Ancient Law for the first time may very well be left in a state of perplexity.

The historical examples relied upon to illustrate the shift from status to contract are drawn from ancient societies that remained structured largely by group-membership. Where Maine did focus on modern law specifically, the dissolution of the traditional membership-group is presented less as a shift from status to contract than as a transition from kinship to territory as the basis of the political authority of the State. This does not exclude the study of an individual’s legal status. Nevertheless, the focus is henceforth primarily on the individual’s status of subjection to the State, and only secondarily on the role of the contractual relation between individuals as a resulting consequence. Throughout, Maine brings to the foreground the evolutions of an individual’s legal status that accompany long-term socio-historical trends.

This article is interested in the concept of legal status, more specifically the legal status of individuals. The core of my claim is that status is a framework-concept of legal reasoning—a necessary element of the framework of legal reasoning. This article will defend the view, drawn from a critical commentary of Maine’s work, that historical and social evolutions of the legal positions of individuals are never emancipations from status; they are evolutions within status. There is no emancipation from status.

We are interested here in status as the legal surface superposed, in any society, on an individual’s social role. Thus understood, legal status is:

a body of rules applicable to a category or class of individuals, attributing a set of rights, duties, capacities and incapacities to its members,

the coherence of which follows from the specific social roles and position in the social hierarchy these rules seek to fix.

Of course, the distribution and content of legal statuses evolves along with a given society’s self-conception of its own fabric and composition and the recognition of the social roles thereby entailed.

This concept of status is not to be mistaken with the narrower concept of “legal personality” understood as the capacity to be the holder of rights and duties, nor can it be evacuated as irrelevant in a society of equals in which the legal personality of each member is recognised. Personality has received much attention from theorists such as Léon Duguit or Hans Kelsen, who have attempted to retain the concept of the legal person while analysing away the concept of the legal subject as radically contaminated by political ideology. In doing so, however, they have taken for granted that the individual simply has become “the” unit of modern law. Unfortunately, this brings exclusive focus on an individual’s general capacity for rights while obscuring transitions that may occur within modern society between modes of definition of the legal position of the individuals. The concept of status must come into play here. For instance, we might think here of the blind spots in the paradigm shift surrounding the blossoming of international Human rights protection since the 1970s. The transformation in the nature of rights involved—“fundamental rights”—must ultimately be understood from a legal perspective as an evolution of the status to which these rights attach. Rights attaching previously to the status of citizenship understood as membership of a political community have gradually come to attach to the status of the individual qua Human being regardless of membership to a community. Discussions in the recent literature have tended to focus on the claim to universality of human rights, or have attempted to deconstruct the notion of a “fundamental” right. Scholarship is thus scarce that has sought to examine and understand the historically evolving legal status of the individual to which any rights whatever—whether universal or exclusive—must attach. Hence, the present reading of an author such as Henry Maine, who did reason in terms of status and articulated his intuitions with an analysis of the salient features of modern law.

The first Mainian step is to understand the role of status in the individuation of legal positions which must occur in any society, even where the legal personality of the persons in question is not always recognised. Thus, the law of classical antiquity is crucial as a starting point, for it illustrates the movement from status to contract in a world in which an individual might have an individuated legal position while nevertheless remaining bound by group-membership (I). It is only then that we may grasp, by contrast, the specificity of the legal status of the individual in modern law as it has evolved to reflect a new understanding of an individual’s moral standing as a carrier of rights. Here again, much is to be gained from Maine’s insights into the advent of the individual as a “basic unit” of modern law (II). However, his work remained ineloquent when it came to the multi-layered legal position of the individual under the authority of the modern State. He dedicated but little attention, for instance, to the concept of citizenship. It was T. H. Marshall who expanded Maine’s ideas in his study of the emergence of “social citizenship” as a process of reconstruction, within the status of citizenship, of the protective bonds of solidarity and assistance which an individual lost through his emancipation from group-membership (III). It is no doubt because Maine insisted on Modernity’s moving past group-membership that he dedicated little attention to citizenship and insisted rather on the status of subjection of the individual under the territorial sovereignty of the State (IV).

I. Status and the legal persona. Individuating the legal position

At the heart of the passages laying out Maine’s considerations on the movement “from status to contract”, we find a focus on the transition between the Republican and Imperial periods of Roman Antiquity. The core of Maine’s claim here is that the reciprocal obligations weighing on individuals in the most archaic societies find their source in their legal positions within the family. In a nutshell, under the patriarchal structure of earliest Roman society, if one was not the chief of a household (the paterfamilias) then one was a member of the household coming under a legally enforced “domestic despotism”. Legal relations at this stage were essentially relations between households. However, as the authority of the chief of the household and the relation of family dependency came gradually to recede, legal relations could develop directly between individuals outside their membership-groups.

Maine’s crucial, somewhat counterintuitive, insight here is that even under the more radical patriarchal domestic domination of archaic Roman law, the physical person had an individuated legal position. It was possible to determine without ambiguity the legal position of each person—the father, the son, the daughter, whether natural or adopted, the wife, the slave—relative to the household and, therefore, to the authority of the chief of the household. Simply put, the law of persons was a law of status, understood as a law of group (i.e., family) membership.

This insight can be clarified by introducing the notion of the legal persona. Maine dealt with texts of Roman law firsthand and could not have been unaware of this notion, which was discussed in the jurisprudence of his day. Originally designating the predetermined roles codified through the mask of the actor in Roman theatre, the persona came to refer, by extension, to the set of officially (i.e., legally) determined social roles one could be given to play within the city. This is the concept that played so important a part in Marcel Mauss’ excavation of the emergence of our modern notion of the individual—a point it will be necessary to return to later. The legal persona is not to be confused with the modern concept of legal personality understood as the capacity to be the holder of rights and duties. Thus, to say one had a legal persona did not exclude the dominated condition of the bulk of these personæ for the legal roles were constituted by membership in social groups. This idea had been formulated clearly by John Austin, who had noted the difference in the uses of the concept “person” as understood by “the modern civilians” and as entertained by “the Roman lawyers”. The “individual person (as meaning a man)”, or “denoting a human being”, must be distinguished from the person in the legal sense “meaning [the] conditions or status” that are “borne by a man”. Thus, the slave did possess a persona in Roman law for he had a status “ascribed” to him, although he was not an individual “invested with rights”, and therefore did not have legal personality in the modern sense.

Nevertheless, it is not the transition towards the modern world that Maine described in terms of “a movement from status to contract”, but the transition from the Republican to Imperial periods as a time of gradual lessening of the authority of the father which brought about a period of relative freedom for certain members of the household. But here is the twist: his focus is thus on the transition out of the law of status in its most archaic form into the law of status in the classical form of Roman law. The movement from status to contract is a movement from status to status.

Maine proposes a sober description of an increase in the capacities attaching to the various personæ, rather than an anachronistic advent of a society of equals linked by a web of contractual relations. Firstly, the subordinated legal positions within the family—the son, the wife, the slave—evolved gradually, precisely because they already existed constituted as legal positions (they had certain procedural legal functions, etc.). They could thus expand into new functions and include new, if limited, legal capacities. These consisted mainly in the newfound freedom to make use of a quantity of goods at their disposal which necessarily went hand-in-hand with the development of limited contractual capacities. They no longer came under obligations determined exclusively by their position within the household but were able to contract new obligations with persons outside the household which would initially have been non-legal relations falling without the jurisdiction of the courts. Similarly, the legal sphere came to recognise the possibility of relations between Roman citizens and foreigners or non-citizen subjects of the Empire previously falling outside the jurisdiction of the Roman courts. The remedy was the development of a jus gentium—a law common to all peoples—that could be applied to these categories of legal relations that fell without the jus civile—the law applied to the relations between citizens.

Maine is somewhat obscure here for he does not propose a historical analysis of the evolution of status per se but rather a deflatory review of natural law theories of the origin of society. His objective is to bring to light structural continuities of modern law with “some of the earliest ideas of mankind as they are reflected in ancient law” to keep us from the “mudbanks and fog” of “a priori theories” with which “progressive” societies cloud their past. To Maine’s mind, this meant essentially empty speculation on a state of nature preceding the historical origin of society.

Why insist on the previous points? Because for all the historical significance of this period of Roman law, Maine is not describing a world in which the social fabric is made up of freely contracted agreements between individuals. It is not a law of the transition towards a society of individuals. Instead, he has described a process through which increased legal (contractual) capacities were able to be gradually incorporated into a limited set of predetermined personæ that an individual possessed and which defined his individuated legal position. Thus, Maine’s law of progress “from status to contract” actually describes status “invaded by contract” (to borrow from T. H. Marshall), not a substitution of contract for status.

Caution is required here, for though this is no doubt entailed by a close reading of Ancient Law, it is not altogether clear what Maine’s intention is here. At the very least, he is unhelpful in his suggestion that the period he focuses on marks a transition from status to contract. It is of course possible that Maine was attempting to retain an overall conservative (rather than liberal) tone in his exposition of what he nevertheless hoped to prove as a general law of social evolution. However, it might also simply have been the case that the historical sources themselves do not support the idea that a culture of individualism developed during Antiquity, and that this was simply not his concern. Whatever may be the case, the candid reader may at the very least be struck by the notion that status is an element of the framework of legal reasoning which is bound to evolve with a society’s understanding of its own composition.

II. Legal personality and moral personhood. The legal position of the individual in a world of rights

The conclusion we have just drawn can be developed in a first direction. Although Maine’s law of progress patently does not deal with the modern world, it is nevertheless significant that he should have focused on the Imperial period. Many authors have indeed insisted on the profound ramifications of the new moral consideration for persons which came about around this time. Mauss thus writes that the long-term potentialities of the personæ lie in their encounter with, and reinterpretation through, a concern for the moral value of the human person that was brought about by stoic philosophy that came to have official influence during the Imperial period. Michel Foucault also devotes attention to this period in his own archaeological excavation of the early roots of a “care of the self”. We may draw from this that the legal individuation of persons came to be coupled with—indeed, augmented with—an awareness of the person as the locus of moral responsibility. That being said, it is necessary to heed the fact, highlighted by Michel Villey, that these stoic moral doctrines were not yet legal doctrines. It would be a grave misunderstanding to interpret the softening of the legal condition of persons during this period (within a legal system that remained essentially structured by status) as a changing conception of the foundations of the legal system under the influence of stoic doctrines.

Maine himself insists that the Roman world operated without that most fundamental of modern legal tools: the legal right. The law of status (i.e. of persons) remained a law of social distribution between, and within, membership groups—and of the legal capacities attached to the positions thereby defined, not a law of the social distribution of the rights of individuals. Thus, it is important not to draw inadequate inferences from Maine’s description, during the Imperial period, of “the gradual dissolution of family dependency” and a substitution of the individuated person for the family as “the unit of which civil laws take into account”.

No doubt what is missing here at this point in history is the emergence of legal personality in the modern sense as the capacity to be the subject of rights and duties. Indeed, we do not yet witness in the Roman world what only came to make sense as stoic doctrines of human nature were rediscovered during the Renaissance: the understanding of legal personality as an extension of moral personhood. It is only as the dignity of the Human individual would constitute her as a legal subject that the legal system itself could then gradually come to be conceived of as made up of rights—i.e. “moral qualit[ies] attached to the person, enabling the individual to have, or to do, something justly”. Thus, it is important to mark the distinction between the legal person going back to Antiquity and the legal subject as a distinctly modern phenomenon insofar as it marks an important evolution in the structure of the legal system.

This argument is thus not an investigation into the moral force of personhood, or for an attempt to look “behind the persona”—i.e. behind the mask—to what, if anything, may be “truly there”. Whether legal reasoning is structured by status conceived of in terms of the legal persona of ancient law or the legal subject of modern law, both are “legal artefacts” constituting the institutional existence (i.e. the official surface) of individuals. The point, firstly, is that this legal artefact is bound to evolve with a society’s self-understanding of what it is made up of. But this is a mere truism. Secondly, this article seeks to bring to the foreground the self-referential nature of legal reasoning. Indeed, it is within a historically situated scheme of legal concepts, working in relative institutional autonomy, that a society’s self-understanding is expressed, albeit indirectly. In other words, the framework of legal positions is not identical in a legal world structured by legal personæ or in an era of Human rights centred around the legal subject. However, in both cases status will act as a framework-concept of legal reasoning.

This can be illustrated in the following way. As remarked upon above, Maine writes that the Roman world lacked the abstract concept of a legal right. The vinculum juris—the legal bond—was regarded in its entirety as bringing into relation, not autonomous persons exercising rights, but predetermined legal positions—personæ—through the various legal capacities attached to them. To know one end of the relation was directly to know the other. The focus, radically, is on objective law, not subjective law. It may therefore seem somewhat surprising that Wesley Hohfeld should have come strikingly close to this idea in his radical decomposition of legal questions into matters of legal rights at the beginning of the twentieth century. How could this be intelligible in a legal world structured by law of status understood as the law of the capacity for (and social distribution of) rights and duties? Hohfeld argues that every legal problem can be reduced to relations of rights, which must be resolved in turn into four elementary couples of correlations between legal positions (claim-right & duty; privilege & no-right; power & liability; immunity & disability). To know one legal position is to know the other, for it is really a single relation seen from both ends. Thus, although we have moved towards a conception of the legal system structured by rights—that most fundamental of concepts unknown to the Antiquity—the structure of legal reasoning is strikingly similar. This is because Hohfeld is not interested in the individual as the locus of moral responsibility. His couples of correlates make up the various ways in which persons can be legally positioned with regard to the infinity of other persons they may potentially come into relation with through the law. Although Hohfeldian positions may be used as a conceptual scheme to reach a fine-grained description of the subjective rights, they operate first and foremost as a reframing of the way in which objective law situates legal persons with regard to one another according to their respective legal statuses. The set of legal positions and their correlates is thus basic (or fundamental) in the structure of modern law, and awaits incarnation through empirical social interactions. In other words, it is because we are looking at the modern legal subject exclusively as a legal artefact—i.e. as a legal person—that empirical social interactions between human beings are given legal significance by being resolved into relations between legal positions. At no point do we leave the legal realm operating in relative autonomy.

It appears that focusing on status shifts the legal analysis towards the legal relation—whether the vinculum juris between personæ or the relation between Hohfeldian rights-positions. The unit of legal reasoning is the relation as it is constituted within law, not the loci between which relations are established through law. This relational approach allows to account at once for status as a framework-concept of legal reasoning, and the evolving content of status—the loci may be individuals or membership groups. No doubt Maine would have been ill at ease with a Hohfeldian-like interpretation of modern law as composed of an infinity of interrelated rights-positions. Nonetheless, his focus on the transformations of status makes his work at the very least congenial to such a reinterpretation.

III. From status to status. Unifying the status of individuals in a society of equals

Although the “status to contract” thesis is initially exemplified in societies that are not modern, Maine does intend his law of progress to say something about our own societies.

Starting, as from one terminus of history, from a condition of society in which all the relations of Persons are summed up in the relations of Family, we seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of individuals.

However, as said previously, the proper conclusion to draw is not that a society can emancipate itself from status as an element of the framework of legal reasoning, but rather that the content of status evolves with a society’s self-understanding of its fabric.

Maine lacks clarity at this crucial point in his system-building. On the one hand, it does seem that he takes quite seriously the idea that at the modern “terminus” of history, status has lost its relevance as a legal tool for the analysis of human societies. He thus writes that the “social position” of the individual is no longer “fixed (…) irreversibly at birth” by the law of group-membership but is, to a great extent, created by each “for himself by convention”. Surely this does not mean that the status has lost all relevance as a legal concept, but that social structures (determining “social positions”) have evolved allowing the liberation of the individual from group dependency. What this would actually mean is that the legal position, i.e. the status, of the individual has evolved. This would be a surprising blunder to attribute to a mind of Maine’s calibre.

On closer inspection, it turns out that the law of progress from status to contract runs into a second law of progress from kinship to territory. This second law is to be understood as a general shift between two modes of delimitation of the boundaries of political authority. The general movement away from archaic societies is described throughout Maine’s work as a movement away from a belief in common kinship (the belief in consanguinity or common ancestry at the foundation of the social bond) as the basis of political power (“tribal sovereignty”), towards the conception of political power as resting on the exclusive control of a territory (“territorial sovereignty”) within the modern State. But the two laws of progress are not equivalent, and their articulation thus seems misleadingly to suggest that the movement past kinship as the basis of political authority is an emancipation from status.

Elsewhere, on the other hand, Maine is quite aware that rights now attach to the legal status of the individual rather than to a legal persona of group-membership. He states, for instance, that the law of status in modern law has ceased to be a law of group-membership and has become a law of distribution of individual rights. Indeed, as the “separate rights of individuals” have become “disentangled” from the “blended rights of community”, the individual has become the “unit” of “the systems of rights and duties now prevalent throughout Europe”. Further, through the rise of contract, modern law centres around crucial distinctions drawn between the contractual capacities and incapacities of individuals. But Maine is quite clear that these are a dimension of the law of status which has shifted towards a law of the definition of classes of individuals according to their possessing the “faculty of forming a judgment on their own interests”, i.e. “the first essential of an engagement by contract”.

The development of contract in modern law presupposes a uniformization of the legal status of individuals entering contractual relations on—formally—equal terms. This is a crucial evolution in the law of status. It came to T. H. Marshall to develop this line of inquiry through a reinterpretation of Maine’s work to describe the historical transition between two modes of social stratification—from medieval society in which an individual’s position in the social hierarchy is determined throughout his lifetime by a multiplicity of interwoven legal statuses and industrial society in which an individual’s social position is determined mainly through his economic position. Marshall perceived clearly that the position of the individual in a “free contractual society”, cut loose from the traditional interdependencies and solidarities of “a society based on estates”, could not cease to be structured by status. Three turning points are highlighted within status.

Marshall insists first of all on the advent, during the 17th century, of a common civil status of individual contractual freedom through the extension, to all subjects of the State, of the rights and capacities of the free man previously reserved to the members of certain groups only. This marks the turning point of equal membership in civil society. This cannot be reduced to the mere recognition of legal personality but corresponds to the possession in common of the same civil rights and duties of all members of civil society. Secondly, this common status, once formed, could gradually come to incorporate political rights throughout the 19th century, thus becoming the general status of citizenship understood as “full membership” of the political community. Thirdly, the initial unification of civil status could only be achieved at the cost of dissolving the bonds of solidarity of traditional group membership. It was not until the 20th century that a category of “social rights of citizenship” emerged, reconstructing bonds of solidarity through the status of citizenship. At each step, status is the essential legal backdrop of the transformation of modern (British) society.

Marshall explicitly draws inspiration from Maine, whose own lack of clarity can no doubt be attributed to the articulation of the two laws of progress. The movement “from status to contract” brings into play the common civil status of individuals—the contractual capacities and incapacities of individuals as free and equal members of civil society—, whereas the movement “from kinship to territory” is more directly related to the political status of individuals as members of a polity (infra, § IV). It is Marshall who makes explicit the importance of this distinction in terms of status.

Maine seems to make some reference in a roundabout way to the distinction between civil and political status. For instance, (i) in his discussion of the transition from kinship to territory, he points out that not only is group-membership no longer perceived as natural (i.e. as a non-elective blood-tie), but differences in group-membership are therefore not differences in the nature of the individuals composing the groups. This leads to the realisation in the modern world of an equality in a shared nature—a shared “humanity”. However, after noting that the idea is of Roman origin, it turns out that the idea operates as a shorthand for a natural equality of contractual capacities of individuals who now share a common civil status of free men. For instance, (ii) Maine suggests that the relation of servitude has become morally odious where it is fixed by the status of group-membership—i.e. slavery—but is acceptable, however severe, where it is the result of a contractual engagement between “servant and master”—i.e. the wage labourer. Maine does not relate the various themes, but surely (i’) it is because we reject the foundations of servitude as natural that (ii’) this particular legal bond must now be formally agreed upon, which presupposes a common legal status of freedom. Regrettably, that conclusion remains implicit.

This section has attempted to show that the movement from kinship to territory no doubt goes hand-in-hand with a sea change within the law of status, but it cannot be described as an emancipation from status. Individual rights continue to attach to the status of the person as constituted legally. To say that we live in a society of legal equals entering a dense web of contractual relations is to say that a legal status is possessed in common by an ever-increasing group of individuals who thus enjoy—formally—an equality of the rights attached to that status.

IV. From kinship to territory. Nationality and territorial jurisdiction

It has just been shown that Maine does not formalise the distinction between civil and political status as was Marshall’s concern. He does propose an interesting discussion of nationality in the context of the movement from kinship to territory. However, no explicit conclusions are drawn in terms of status. This is no doubt because he does not draw any distinction between two distinct dimensions of political status: subjection and citizenship.

In certain passages, Maine concentrates on the shared allegiance to a political superior. The focus here is not on the bond of nationality, but on the relation of subjection between the State and the subject present on the territory over which exclusive sovereignty is exercised. This is of course reminiscent of Austin’s understanding of the sovereign as the “common superior” within an independent political society receiving a habit of obedience. Maine indeed focuses on the Austinian model of sovereignty as an accurate account of the existence of legal institutions and exercise of sovereignty in “the Western and Modern world”—i.e. after the transition from kinship to territory. He argues, however, that the Western world is not representative of the process of formation and organisation of large political communities and their legal institutions in most parts of the world nor throughout Western history itself.

In certain passages, his focus is on the bounds of the jurisdiction of the State. Here, territory occupies centre ground: nationals “happe[n] to live within the same topographical limits”. This “principle of local contiguity” is “now recognized everywhere as the condition of community in political functions”. Status does not appear in these passages, but the importance of territory brings into focus the status of subjection: the individual is first and foremost a subject. Meanwhile, in other passages Maine’s focus shifts to nationality as a “new form”, or “modern form”, of kinship under the sovereignty of the State. This suggests a stronger bond than mere local contiguity. Indeed, nationals are “a number of persons [who] exercise political rights in common”. This notion of rights exercised in common would surely point to the status of citizenship.

But what then is the nature of the “bond of national union” holding together individuals in the context where territory has become a central factor? Maine is committed to the idea that the relation to land is the substitute for kinship in the “territorial constitution of nations”—it is the “basis of national union”. It is elsewhere, in his treatment of legislation, that he provides further clues. Modern societies, he writes, are characterised by a “continuous activity of legislatures” that is “ever-increasing in energy”. Insofar as legislation is “the direct issue of the commands of the sovereign State”, it is closely articulated with the centralisation of the use of coercive force in the hands of the State. Although legislation tends to become “the exclusive source of law”, public opinion places very real restraints on the legislator. Here again, Maine makes a straightforward Austinian point: the sovereign may be legally illimited, but the range of political options available to him is not. Austin dedicates much attention to the existence of non-negotiable political principles of political morality a society holds dear—“principles and maxims” of “constitutional morality”—that, although not legal in the strict sense, do indeed limit the sovereign. In a strikingly similar fashion, Maine writes that the sovereign is limited in the exercise of coercive force by “forces of society” that “we may call for shortness moral”. We are dealing here with “the entire mass of historical antecedents which in each community determine how the sovereign shall exercise or forebear from exercising his irresistible coercive powers”. Maine thus insists on the historicity of the limits weighing on the sovereign within a political community. So, on this account, nationals are not simply subjects of the State but a group of individuals sharing, at the very least, a bond of common values resulting from a shared history.

This is no doubt the reason why it can make sense, to Maine’s mind, to consider nationality as a “new form” of kinship which would nevertheless have its “basis” in territory. The continued presence on a same territory is intimately interwoven with the sharing of a common historical heritage. This idea can be expanded so far that the State can be conceived as the legal incorporation of the national community. However, it is regrettable that Maine’s discussion of nationality only occurs in the context of the movement from kinship to territory. As a result, no explicit conclusion is drawn in terms of status. Indeed, nationals are not merely bonded empirically by a shared history and moral development. They share a common status of subjection to the State and exercise rights in common within the political community through a shared status of citizenship. Here again, we witness a historical progress within status, not an emancipation from status. Maine points us in the right direction.

⁂

I hope to have shown at the close of this delve into the work of Henry Maine the importance of status as a framework-concept of legal reasoning. Historical social evolutions always occur within status. There is no emancipation from status. The legal position of the individual within any society will always have to be defined in order for him to appear on the stage of legal relations. We have thus understood status in this article as a set of legal rules determining the rights, duties, capacities and incapacities of a category of individuals within the legal system.

In conclusion, we may take away from this study, firstly, that the concept of status is broader than the concept of legal personality, for it must apply whether an individual is recognised as having legal personality or is treated as a legal object. An individual may be deprived of legal personality and yet possess a legal status—an individuated legal position as a member of a class of category of persons within the legal system. This can mean different things. One domestic legal system may distinguish between categories of individuals recognised as legal subjects and those treated as legal objects, and yet individuals recognised as legal subjects in one domestic legal system may not be so in another. A State may recognise the legal personality of all individuals under its jurisdiction, and yet not recognise the legal personality of individuals in the international legal system. Moreover, whether or not the legal personality of individuals is recognised as a matter of principle, there is no single status to which rights must attach. Thus, legal personality is in many ways a red herring for it draws attention to the distinction between an individual’s lack, and possession of, personality within a given legal system. It does not allow the adequate analysis of the gradual shift in emphasis between two distinct legal positions of the individual as a carrier of rights—rights possessed qua citizen and rights possessed qua Human being—, both of which presuppose the individual to possess legal personality.

This brings us to a second point. Status mobilises considerations that are not strictly speaking legal. Indeed, the internal coherence of a given status, the holding together of a set of rules of status as distinguished from just any other collection of rules, is determined by—and evolves with—a society’s conception of an individual’s role within the polity. We have looked back to epochs during which the recognition of legal personality had little to do with the recognition of an individual’s subjectivity or moral personhood. It is only through the conceptual tool of status that we may grasp the shifting legal outline of the individual whether in a world in which he is bound to group-membership, or in a world such as ours where he has come to be the locus of moral activity.

Gregory Bligh

Maître de conférences en en droit public à Sciences Po Lyon (CERCRID). Spécialiste de philosophie du droit anglo-saxonne et de culture juridique comparée, ses travaux portent actuellement sur la philosophie des droits de l’Homme.