#24 Maitland on the science of Jurisprudence
Concepts of real, natural, artificial and corporate persons
Deeply convinced though our lawyers may be that individual men are the only ‘real’ and ‘natural’ persons, they are compelled to find some phrase which places State and Man upon one level. “The greatest of all artificial persons, politically speaking, is the State’”: so we may read in an excellent First Book of Jurisprudence [Sir Frederick Pollock]. Ascending from the legal plain, we are in the middle region where a sociology emulous of the physical sciences discourses of organs and organisms and social tissue [Maitland is alluding to the work of Herbert Spencer’s Principles of Sociology], and cannot sever by sharp lines the natural history of the state-group from the natural history of other groups. Finally, we are among the summits of philosophy and observe how a doctrine, which makes some way in England, ascribes to the State, or, more vaguely, the Community, not only a real will, but ‘the’ real will, and it must occur to us to ask whether what is thus affirmed in the case of the State can be denied in the case of other organized groups: for example, that considerable group the Roman Catholic Church. It seems possible to one who can only guess, that even now-a-days a Jesuit may think that the real will of the Company to which he belongs is no less real than the will of any State, and, if the reality of this will be granted by the philosopher, can he pause until even the so-called one-man-company has a real will really distinct from the several wills or the one man and his six humble associates? If we pursue that thought, not only will our philosophic Staatslehre be merging itself in a wider doctrine, but we shall already be deep in Genossenschaftstheorie. In any case, however, the law’s old habit of coordinating men and ‘bodies politic’ as two kinds of Persons seems to deserve the close attention of the modern philosopher, for, though it be an old habit, it has become vastly more important in these last years than it ever was before. In the second half of the nineteenth century corporate groups of the most various sorts have been multiplying all the world over at a rate that far outstrips the increase of ‘natural persons’, and a large share of all our newest law is law concerning corporations. Something not unworthy of philosophic discussion would seem to lie in this quarter: either some deep-set truth which is always bearing fresh fruit, or else a surprisingly stable product of mankind’s propensity to feign.
Is it not true that England has played a conspicuous, if a passive, part in that development of historical jurisprudence which was one of the most remarkable scientific achievements of the nineteenth century?
It will have been observed that I have been choosing examples from the eighteenth century: a time when, if I am not mistaken, corporation theory sat heavy upon mankind in other countries. And we had a theory in England too, and it was of a very orthodox pattern; but it did not crush the spirit of association. So much could be done behind a trust, and the beginnings might be so very humble. All this tended to make our English jurisprudence disorderly, but also gave to it something of the character of an experimental science, and that I hope it will never lose.
F. W. Maitland, ‘Preface Extract from Maitland’s Introduction to Political Theories of the Middle Age by Otto von Gierke’ in F. W. Maitland: State, Trust and Corporation, edited by David Runciman and Magnus Ryan, Faculty of Social and Political Sciences, Cambridge 2003 [3-4, 75, 110]