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Is the State a Corporation?*

Published online by Cambridge University Press:  28 March 2014

David Runciman
David Runciman*
Affiliation:
University of Cambridge
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Extract

THE PURPOSE OF THIS ARTICLE IS TO ESTABLISH THE RELEVANCE OF the question that forms its title for contemporary political theory. It is not an obvious question, both because it is not obvious what the answer is, but also because it is not obvious what it means in contemporary terms. In order to establish its significance, it is necessary first of all to establish what the question does mean, and what the term ‘corporation’ means within it. It is, ultimately, a philosophical question, and the idea of the ‘corporation’ has therefore to be understood in a more abstract sense than is usual in contemporary political discourse. Because of this, the question has a tendency to sound archaic, if not obscure, when set out in philosophical terms. Nevertheless, I hope to demonstrate its continuing relevance by looking at one particular attempt to answer it, undertaken by a political thinker who was self-professedly not a philosopher, writing in a setting that was recognizably modern. The thinker was the legal historian F.W. Maitland, who produced in the early years of this century a series of essays in which he set out the contemporary significance of a problem which he believed went to the heart of the identity of the modern state. Of course, the question of the state's corporate identity is a perennial theme of European, and more particularly German, political philosophy, but Maitland wanted to demonstrate that it was also a question of practical significance, even for those who are traditionally unmoved by grand philosophical themes. That it is still of practical significance I hope to illustrate by applying some of Maitland's conclusions to one of the fundamental questions of contemporary politics: the question of the nature of the welfare state.

Type
Original Articles
Information
Government and Opposition , Volume 35 , Issue 1 , January 2000 , pp. 90 - 104
Copyright
Copyright © Government and Opposition Ltd 2000

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References

1 The ‘Introduction’ to Gierke, Otto von, Political Theories of the Middle Age, trans. Maitland, F. W., Cambridge, Cambridge University Press, 1900 Google Scholar; ‘The Corporation Sole’, ‘The Crown as Corporation’, ‘The Unincorporate Body’, ‘Moral Personality and Legal Personality’, ‘Trust and Corporation’, in F. W. Maitland, Collected Papers, ed. H. A. L. Fisher, Vol. III, Cambridge, Cambridge University Press, 1911.

2 The direct influence for Maitland’s treatment of these ideas was the work of the German jurist and historian of ideas, Otto von Gierke, an extract from which he edited and translated for an English audience (see Gierke, Political Theories of the Middle Age).

3 So, for example, Strange, Susan, The Retreat of the State, Cambridge, Cambridge University Press, 1997 Google Scholar.

4 This is, of course not a question that has been entirely neglected in contemporary political philosophy; it is in particular the central concern of Oakeshott’s, Michael treatment of the state in On Human Conduct, Oxford, Clarendon Press, 1975 Google Scholar. Oakeshott’s conception of the state as universitas — one of the two contrasting ‘ideas’ he describes as characteristic of modern conceptions of the state (the other being the state as societas) — has something in common with the conception of the state as a corporation described here. However, the state as corporation is a broader category than Oakeshott’s state as universitas. Many corporations, including many corporate states, are ‘enterprise associations’ in Oakeshott’s terms, organized to pursue in unitary fashion a single purpose or goal. But it is also true that some of the philosophers whom Oakeshott lists as quintessential theorists of the state as societas nevertheless conceived of the state in essentially corporate terms. These include Hobbes, whose commonwealth was unambiguously understood as being in possession of a single personality distinct from the separate persons of its sovereign and his subjects (see Hobbes, Thomas, Leviathan (1651), ed. Tuck, Richard, Cambridge, Cambridge University Press, 1991 Google Scholar) and also Spinoza, whose republic was conceived as being in possession not only of its own identity as a ‘body politic’, but also of its own power and right, comparable to, but distinct from, the power and right of the individuals who make it up, as demanded by Spinoza’s broader philosophical ontology. (See de Spinoza, Benedict, Political Treatise, trans. by Elwes, R. H. M., New York, Dover Publications, 1951, p. 301 Google Scholar.)

5 Maitland, Collected Papers, Vol. III, p. 314.

6 See Gierke, Political Theories of the Middle Age, p. xliii.

7 See Maitland, Collected Papers, Vol. III, pp. 318–19.

8 Ibid.

9 See ibid., pp. 210ff.

10 Hobbes, Leviathan, op. cit., p. 166.

11 See Maitland, Collected Papers, Vol. III, p. 259.

12 Ibid., p. 318.

13 Ibid.

14 Ibid., p. 243.

15 It was also a popular one at the turn of the century: ‘Open a newspaper and you will be unlucky if you do not see the word “trustee” applied to “the Crown” or some or other mighty body’ (ibid., p. 403). This usage seems to have died out, except in the case of works of art, which are still frequently described as being held or owned on trust for the nation. Indeed, trusteeship is now most often used to denote a certain freedom from government control (NHS ‘trusts’, and so on), rather than that the money or other assets in question may not be the government’s in the first place.

16 See, for example, Hobbes, Leviathan, p. 156, where he says that corporations can either be made by ‘Letters Patent’ (‘Charter’), or by ‘ordinary lawes’ (‘rules’).

17 It was this implication of Maitland’s work — that if the state was a corporation in its own right, then other corporate entities must have an existence separate from, and therefore in some sense regardless of, the state — that made Maitland the founding father of the movement that came to be known in England as political pluralism. The pluralists, who included Maitland’s pupil J. N. Figgis, as well as the ‘guild socialist’ G. D. H. Cole and the man who coined the term ‘political pluralism’, Harold Laski, believed that the state had to be understood as an association ‘alongside’ other associations (such as churches and trade unions). None of them, however, matched Maitland, who was nervous of these conclusions, for either intellectual rigour or historical sophistication.

18 Maitland also put it another way, arguing that if the ‘moral corporation’ is ‘a fiction we needs must feign’, then ‘the thought will occur to us that a fiction we needs must feign is somehow or another very like the simple truth’, Maitland, Collected Papers, Vol. III, p. 316.

19 See ibid.

20 I attempt to tell some of this story in Runciman, David, Pluralism and the Personality of the State, Cambridge, Cambridge University Press, 1997, pp. 211–19CrossRefGoogle Scholar.

21 One example of some of these arguments, if not quite of the political consensus, is Field, Frank, Reflections on Welfare Reform, London, The Social Market Foundation, 1998 Google Scholar.

22 The theory he had in mind was John Austin’s definition of sovereignty as the rule of ‘determinate human superiors’. (See Gierke, Political theories of the Middle Age, p. xliii.)