ABSTRACT
Sir Henry Maine’s aphorism that ‘the movement of the progressive societies has hitherto been a movement from Status to Contract’ (Maine 1861: 170) was not only the most memorable phrase written by a jurist that Victorian readers could hope to encounter. It was also a motto for a minimalist state, summing up the mid-Victorian consensus that its role should be limited to dealing with crime and social disorder, and to regulating a limited number of ‘intolerable’ problems, such as female and child labour or urban sanitation (Harling 2001: 112). In these areas of ‘public law’, a growing administrative state saw the establishment of police forces throughout the country, and the building of those classic disciplinary institutions, the prison, the workhouse and the asylum. But beyond these areas – in the realm of economic and social relations, the realm of ‘private law’ – the state was expected to be neutral. Private relations were to be left to regulate themselves through the rules of property and contract that were found in the common law. The common law itself, which had in the turbulent seventeenth century been a central component of political discourse, and which had seemed to embody the customs and practices of the free-born English people, was increasingly considered in the Victorian era as a neutral framework, expressing and facilitating a natural system of distributive and corrective justice that could be analyzed and ordered without any reference to its social context.
