Post by Andrew Gold
The legal shift from status to contract has been recognized for a very long time. New work in private law theory has begun to reassess these concepts and how they relate to each other. Here are two recent instances. First, there is an important new paper by Hanoch Dagan and Elizabeth Scott, “Reinterpreting the Status-Contract Divide”, forthcoming in Contract, Status, and Fiduciary Law (Miller & Gold, eds.)(Oxford, 2016). Dagan & Scott contend that a common focus on either status or contract overlooks intermediate categories. In their view, two key categories are offices (which on their account implicate personal identity, and largely involve non-negotiable terms), and contract types (which are largely made up of default terms, and are shaped by a particular animating principle). If they are right that status and contract exist along a spectrum, then some very interesting questions are raised. How should we determine where a given legal relation fits along this spectrum? And perhaps more importantly, where would it be best for a given legal relation to fit?
The second paper is by Paul Miller, “The Idea of Status in Fiduciary Law” (forthcoming in the same volume). As Miller notes, status-based reasoning is prevalent throughout much of fiduciary law. However, types of status can vary: a status may be based in law, morality, or social structures. (So, for example, the innate moral equality of all persons can be seen as invoking the idea of a moral status.) On Miller’s view, claims of legal status are inherently provisional, and, accordingly, status cannot be viewed as conceptually or normatively basic to fiduciary law. Moreover, he contends that it is dangerous to rely simplistically on status concepts when thinking about fiduciary relationships: we must instead address the underlying normative concerns that each relationship implicates. Given recent suggestions that fiduciary relationships are inherently status-based, Miller’s account offers a particularly valuable contribution.
Both papers are very thought-provoking, and they add to a rich prior literature on these subjects. I expect that as fiduciary law develops as a field of study, we will see further inquiries into what status is, and why it may (or may not be) desirable.