Marc Goetzmann

This paper argues that social trust is the emergent product of a complex system of property relations, backed up by a sub-system of mutual monitoring. This happens in a context similar to Ostrom’s commons, where cooperation is necessary for the management of resources, in the absence of external authorities to enforce sanctions. I show that social trust emerges in this context because of an institutional structure that enables individuals to develop a generalized disposition to internalize the external effects of their actions. This is made possible by the “patrimonial” nature of this structure.

The article offers a reinterpretation of Henry Sumner Maine’s famous statement that “the movement of progressive societies has hitherto been a movement from Status to Contract.” It argues that this phrase, often understood simplistically as a linear shift toward a society based on contractual individualism, actually conceals a much more nuanced, historically and politically contextualized line of thought. Rather than describing a universal or teleological process, it refers instead to an evolution specific to certain “Indo-European” societies, in which obligations based on family ties gradually give way to obligations freely consented to between individuals. This change occurs not through a rejection of older forms, but through the gradual transformation of institutions (such as family, property, inheritance, etc.). More specifically, the article aims to show that Ancient Law (1861) can be read as an implicit stance in favor of the rights of married women, who, in Maine’s England, were in the midst of a struggle to be recognized as legal persons independent of their husbands. Through his historical study of Roman and English law, Maine discreetly supports the movement advocating for women’s rights to own property, inherit, and enter into contracts independently—rights that would only become a reality with the Married Women’s Property Acts of 1870 and 1882.

This paper argues that community land trusts (CLTs) can be part of a liberal housing policy from both an economic and a legal point of view. In this, I depart from the defense of community land trusts based on the so-called ‘decommodification’ of housing. First, from an economic point of view, CLTs are a comparatively better option than other traditional policies, such as rent control, once the political complexity of housing policies is considered. Second, fostering autonomy and the capacity for self-authorship requires that individuals be able to choose from a diverse set of valuable institutional designs; CLTs correspond to that ideal and bring a unique nuance to the existing options within common-interest communities. Additionally, I look at the somewhat recent legal innovations that brought CLTs to Canada and continental Europe to show that the institutional flexibility of CLTs allows them to support different visions of self-realization through ownership.

This paper argues that social trust is the emergent product of a complex system of property relations, backed up by a sub-system of mutual monitoring. This happens in a context similar to Ostrom’s commons, where cooperation is necessary for the management of resources, in the absence of external authorities to enforce sanctions. I show that social trust emerges in this context because of an institutional structure that enables individuals to develop a generalized disposition to internalize the external effects of their actions. This is made possible by the “patrimonial” nature of this structure.

This paper uses the evolutionary frame provided by the Victorian jurist Henry Sumner Maine to describe the process by which trust can be seen as the product of a gradual development that starts with small-scale communities and later allows market exchanges to develop themselves. I also argue, using the work of Elinor Ostrom (1990), that trust emerges first within small-scale communities, where first- and second-degree collective action problems need to be resolved. The development of a social disposition to trust is closely linked with an institutional context that encourages individuals to take the externalities of their actions into account. This is made possible by customary mechanisms, as the development of social trust at this stage cannot rely on a mighty “Leviathan”. Therefore, this paper questions the claim that social trust is the product of market exchanges. Market exchanges might favor the further growth of social trust, hands in hands with the right institutional frame. However, this growth is not just the transposition of a previously acquired disposition to trust. The work of Henry Sumner Maine interestingly underlines the importance of the co-development of institutions and trust, from its origin in small communities to its expansion to market exchanges. Both Ostrom’s and Maine’s perspectives underline the fact that trust and trustworthiness are complementary and question a-rational perspectives on trust. This paper also elaborates on the claim, coming from the literature on contract law, that focusing on sanctioning mechanisms can be highly counterproductive.