Abstract
Political pluralism, as set forth by the group of thinkers we are considering in this essay, is essentially bound up with the idea of group personality. It is convenient to discuss this idea first in its sociological, and then in its legal aspects. The order is important for, as we shall see, those theorists who spoke of the real personality of groups in law insisted that their legal ideas were rooted in social facts. Figgis, Laski and Cole, following Gierke and Maitland argued that social groups are real entities which have a life and being which is something more than the sum of their individual members. As living entities they are able to ‘grow’ and to develop their original purpose, in relation to the changing world in which they live. Furthermore these theorists maintained that the legal system should recognise groups as entities, having these characteristics and deal with them as legal persons as ‘real’ as individual persons. On the complex question of legal personality, F. W. Maitland wrote,
If once you become interested in the sort of history that tries to unravel these and similar problems, you will think some other sorts of history rather superficial. Perhaps you will go the length of saying that much the most interesting person you ever knew was persona ficta.1
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Notes and References
Maitland, Collected Papers, III, pp. 308–9.
Spencer, Principles of Sociology, para. 219 (I, p. 474) and para. 511 (II, p. 548).
See also ‘The Social Organism’, in Essays Scientific, Political and Speculative, I, p. 358.
Maine, Lectures on the Early History of Institutions, p. 396.
I have discussed the political ideas of these men briefly in David Nicholls, ‘Positive Liberty, 1880–1914’, American Political Science Review, 56, 1962, pp. 117f.
Durkheim, The Division of Labour, p. 28;
see also H. E. Barnes, ‘Durkheim’s Contribution to the Reconstruction of Political Theory’, Political Science Quarterly, 35, 1920, pp. 236f.;
also Steven Lukes, Emile Durkheim: his Life and Work, pp. 542f.
See H. E. Barnes, in C. E. Merriam and Barnes, eds, Political Theories: Recent Times, pp. 384f.
Bradley, Ethical Studies, p. 157.
Green, Principles of Political Obligation, para. 141.
Hobhouse, The Metaphysical Theory of the State, p. 29.
See also Hobhouse, Development and Purpose, p. 187 and Social Development, pp. 277f.
Introduction to Gierke, Political Theories, p. xli.
Figgis, Churches, pp. 87–8.
Figgis, Churches, p. 48.
George Homans writes, ‘Each of the sociologists — Durkheim, LeBon, Figgis, Brooks Adams, who began, just before World War I, to point out the signs of decay in our society, used the same metaphor. They said that society was becoming a dust heap of individuals without links to one another.’ The Human Group, p. 457.
See also W. J. H. Sprott, Human Groups, p. 184;
R. M. MacIver and C. H. Page, Society, p. 213;
K. Lewin, Resolving Social Conflicts, p. 146
Figgis, The Will, p. 129; also Figgis, Gerson, p. 80.
Creighton, The Mind of St Peter, p. 19.
Figgis, ‘The Church and the Secular Theory of the State’, Church Congress Report, 1905, pp. 190–1. See Appendix B, below.
Figgis, Lectures on Marsilius, Mirfield MSS, Notebook 3. See also Figgis, Gerson, p. 180, and Figgis, Churches, pp. 76–7.
Forsyth, Theology in Church and State, pp. 160 and 206.
Laski, Grammar, p. 256.
Laski, Problem, pp. 208–9.
Laski, Problem, p. 4;
see also Laski, ‘The Apotheosis of the State’, The New Republic, July 1916, p. 303.
The University of Chicago Law Review, 15, 1948, p. 580.
Laski, Authority, p. 68;
see the discussion of this issue in B. Zylstra, From Pluralism to Collectivism, pp. 53f.
Cole, Labour, p. 38.
Barker, Political Thought in England, p. 153.
Barker, ‘The Discredited State’, The Political Quarterly, February 1915, p. 113.
Wisdom, Philosophy and Psychoanalysis, p. 9. There are, however, some British empiricists who are critical of this individualism;
see J. O. Urmson, Philosophical Analysis, p. 152 and P. F. Strawson, Individuals, pp. 110f.
Stebbing, Ideals and Illusions, pp. 162f.
Selznick, TVA and the Grass Roots, pp. 162f.
Dicey, ‘The Combination Laws’, Harvard Law Review, 17, 1904, p. 532.
Savigny, Systems of Modern Roman Law, section 60 (the English translation of the second volume is called Jural Relations, II, 1–2). Corporate persons are thus ‘artificial subjects admitted by means of a pure fiction’, section 85 (II, p. 176).
Gierke, Das deutsche Genossenschaftsrecht, III, p. 279. Figgis accepted this view (Churches, p. 249).
This position is attacked by H. A. Smith (The Law of Associations, p. 156), who argues that Innocent was not concerned with ‘the working out of purely speculative theories’. Neither Gierke nor Figgis asserted that Innocent had explicitly enunciated the theory but rather that his statements on practical questions of the day assumed something very like the fiction theory (Figgis, English Historical Review, 1916, 31, p. 177.)
Detailed references to cases discussed can be found in the table on p. 136.
Pollock, Essays in the Law, p. 153
For a more detailed discussion of Gierke’s ideas see J. D. Lewis, The Genossenschaft Theory of Otto von Gierke.
Gierke, ‘Grundbegriffe’, p. 302.
Gierke, Wesen, p. 10;
see also ‘Den Kern der Genossenschaftstheorie bildet die von ihr dem Phantom der persons ficta entgegengestellte Auffassung der Körperschaft als realer Gesammtperson’, Gierke, Genossenschaftstheorie, p. 5.
On Gierke’s conceptions of group life and community see Anthony Black, ed., Community in Historical Perspective, and J. D. Lewis, The Genossenschaft Theory of Otto von Gierke.
Suttons Hospital Case.
Osborne Case. J. D. Mabbott has summarised the changing status of trade unions in English law in The State and the Citizen, p. 117
Vinogradoff, ‘Jural Persons’, Columbia Law Review, 24, 1924, p. 604.
Kent and Sussex Contractors.
Hallis, Corporate Personality, p. lviii n.
Great Northern Railway case.
Report of the Committee on Company Law Amendment (1945) Cmd 6659.
L. C. B. Gower, Modern Company Law, p. 93.
Maitland, Collected Papers, III, p. 319.
Figgis, Fellowship, p. 74.
M. de Wolfe Howe, ‘Political Theory and the Nature of Liberty’, Harvard Law Review, 67, 1953, p. 93.
Kingsley Martin, Harold Laski, p. 29.
Figgis, ‘National Churches’, in A. J. Mason, et al., Our Place in Christendom, p. 131.
Webb, Legal Personality and Political Pluralism, p. 55.
Figgis, Churches, p. 179 (my italics). It is also clear, from p. 250, that Figgis was fully aware that the effects of the decision were mitigated by legislation.
Pollock, Essays in the Law, p. 167.
Laski, Grammar, p. 256 (my itals).
Williams, in Salmond on Jurisprudence (11th edn), pp. 362–3.
Farrer, The Freedom of the Will, p. 79.
Hart, ‘Definition and Theory in Jurisprudence’, Law Quarterly Review, 70, 1954, p. 56.
Latham, The Group Basis of Politics, p. 8.
Webb, Legal Personality, p. vi.
At times, however, Gierke did seem to suggest that his belief in the social reality of groups was derived from the fact that they were treated as persons in law (Wesen, p. 15), but this does not reflect his settled opinion.
Webb, Legal Personality, p. 52.
Lloyd, The Law Relating to Unincorporated Associations, pp. 4–5.
Maitland, Introduction to Gierke, Political Theories, p. xxxviii.
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© 1994 David Nicholls
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Nicholls, D. (1994). Group Personality. In: The Pluralist State. St Antony's. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-349-23598-8_4
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