Legal systems classify individuals in ways that entail particular rights, duties, capacities, and incapacities. In religious law as well as in earlier legal systems, basic status distinctions include those between free and unfree (and intermediate statuses), various religious or ethnic statuses that often were associated with social hierarchy, citizen and foreigner, and statuses within kin-group or family (head of household, spouse, divorcé, legitimate heir, etc.), besides a range of ascriptive statuses relating to gender, age, and physical or mental capacity. Henry Sumner Maine, the nineteenth-century comparative legal historian, proposed that “the movement of the progressive societies has hitherto been a movement from Status to Contract.” In particular, he envisaged an increasing detachment of individual rights and capacities from status-based classifications such as family and tribe.
In spite of this trend towards liberal individualism in secular states, status differences remain consequential. Today, law continues to define status in relation to marital status, legal disability, citizenship and immigration, discrimination, and affirmative action, but it also arises in connection with religious and customary “personal law” codes in many countries, tribal jurisdiction, statelessness, asylum, and human rights. Even where the law of the state does not formally recognize a distinction, differences of social status may affect access to legal protections and remedies. Status factors set up expectations of justice capable of generating both conflict and cohesion.
In his 1997 essay “The Constitution of Status” (Yale Law Review 106: 2313–74), Jack Balkin observed:
Although the legal status of individuals and the sociological status of groups are distinct concepts, law often directly reflects social status or helps preserve status markers. Sometimes law helps constitute hierarchies of social status directly. … Legal categories can map status distinctions and even help constitute them…
This interdisciplinary conference aims to bring together historians of religious, ancient, and medieval law systems from around the world with scholars of modern legal systems, on the hypothesis that comparative discussion can throw new light on the role of status-considerations in shaping how individuals experience and use the law, in defining what counts as a fair or just outcome, and in changes to the legal landscape in times of social change. It may be that the role of statuses (both legal and societal) in premodern and religious legal orders may hold lessons for understanding the role of statuses in the law of republican polities, despite their aspiration to ensure equality of individuals before the law.
Status factors are involved in such contemporary issues as:
- Applicability of religious exemptions and protections
- Legal implications of tribal, racial, caste, or ethnic status, including tribal jurisdiction and compensatory discrimination (affirmative action)
- Considerations of gender, sexual orientation, age, and religion in marriage laws
- Criteria of citizenship (birthright, women’s capacity to pass it on) and other
- Undocumented immigrants and the stateless
- Disabilities imposed on convicts and ex-convicts
- Slavery and human trafficking
- Jurisdiction and efficacy of international law, including human rights mechanisms
- Rights and protections for children and parents or guardians, including issues such as jurisdiction for juvenile offenders, or legitimacy in relation to inheritance and citizenship
- Rights and protections for the physically or mentally disabled
Cosponsored by the Department of Religion and the School of Law, Washington and Lee University with generous funding provided by the Department of Religion (the Philip Fullerton Howerton Fund, the Stanford L. Schewel Fund, and the Emmett and Mamie MacCorkle Memorial Fund), the Morton Endowment for Philosophy and Religion, the University Provost (from the Johnson Lecture Fund), the Dean of the College, the School of Law, and the Transnational Law Institute. The conference venue is Lewis Hall, Washington and Lee University School of Law.