Magnus Ryan reverses the standard story of the development of Roman Law: that a law declared universal and eternal by the Emperor Justinian, and accepted as such by the medieval lawyers, was finally ‘historicized’ in the sixteenth century by the French historical school of Humanist jurists. On the contrary, Ryan argues, the understanding of Roman Law held by medieval jurists down to Bartolus was strictly historical, premised on the assumption that the kingdoms and cities of medieval Europe were continuous with the Roman Empire, their authority derived from the same ‘lex regia’ by which the emperors had been granted their authority by the Roman people. The first breach in this assumption of historical continuity appears to be made in the fifteenth century, when similar transfers of authority were identified as taking place independently; and in the sixteenth century Protestant resistance theorists began to claim that original popular authority was a universal principle, exemplified severally in the original, ‘ancient’ constitutions of individual kingdoms (such as France). It was by abandoning the premise of historical continuity with Rome, in other words, that Roman Law was made ‘universal’.

INTRODUCTION

Succession was one of the most heavily represented themes in later medieval and early-modern juristic discussion of fiefs. In this, ius commune feudorum merely reflected the wider trends of practical and academic jurisprudence. However, the frequency with which the phrase ius commune feudorum occurs in their surviving works indicates that many of the glossators thought that the law of fiefs constituted a significant category of its own within the broader ius commune, and this was indeed the case. The fief was thought to be sui generis. This is of some significance because the hermeneutic bias of the glossators from the outset and, at Bologna at least, with few deviations, had been to assume that most if not all phenomena could be described and analysed by means of the tools Justinian gave them. It took until the last decade or so of the twelfth century before a lawyer explicitly stated that it was forbidden to quote as authorities texts outside the Corpus Iuris (that lawyer being Azo: non licet juristis allegare nisi Justiniani leges). However, at Bologna at least, the principle was obviously enshrined in the practice of teaching and commentary long before that and was probably the aspect of glossatorial method which did more than anything else to create an autonomous discipline of law during the twelfth century.

Life and work

F. W. Maitland (1850–1906) was a legal historian who began and ended his intellectual career writing about some of the enduring problems of modern political thought – What is freedom? What is equality? What is the state? His first publication, printed privately in 1875, was an extended essay entitled ‘A historical sketch of liberty and equality as ideals of English political philosophy from the time of Hobbes to the time of Coleridge’. This sketch takes as its starting point the basic question, ‘What is it that governments ought to do?’, only to conclude that such questions are ‘not one[s] which can be decided by a bare appeal to first principles, but require much economic and historical discussion’. Among his final publications, written nearly thirty years later, are the series of shorter essays collected in this book, each of which addresses itself less directly but with equal force to the question of what it is that states, and by extension the governments of states, actually are. In between these excursions into political theory, Maitland produced the work on which his fame has come to rest, the historical investigations into the foundations and workings of English law and of English life which have gained him the reputation as perhaps the greatest of all modern historians of England.

Persons are either natural or artificial. The only natural persons are men. The only artificial persons are corporations. Corporations are either aggregate or sole.

This, I take it, would be an orthodox beginning for a chapter on the English Law of Persons, and such it would have been at any time since the days of Sir Edward Coke. It makes use, however, of one very odd term which seems to approach self-contradiction, namely, the term ‘corporation sole’, and the question may be raised, and indeed has been raised, whether our corporation sole is a person, and whether we do well in endeavouring to co-ordinate it with the corporation aggregate and the individual man. A courageous paragraph in Sir William Markby's Elements of Law begins with the words, ‘There is a curious thing which we meet with in English law called a corporation sole’, and Sir William then maintains that we have no better reason for giving this name to a rector or to the king than we have for giving it to an executor. Some little debating of this question will do no harm, and may perhaps do some good, for it is in some sort prejudicial to other and more important questions.

A better statement of what we may regard as the theory of corporations that is prevalent in England could hardly be found than that which occurs in Sir Frederick Pollock's book on Contract.

The memory of Henry Sidgwick is not yet in need of revival. It lives a natural life among us, and will live so long as those who saw and heard him draw breath. Still the generations, as generations must be reckoned in this place, succeed each other rapidly, and already I may be informing, rather than reminding, some of you when I say that among his many generous acts was the endowment of a readership in English Law, of which one of his pupils was fortunate enough to be the first holder. If that pupil ventures to speak here this afternoon, it will not be unnatural that he should choose his theme from the borderland where ethical speculation marches with jurisprudence.

Ethics and Jurisprudence That such a borderland exists all would allow, and, as usually happens in such cases, each of the neighbouring powers is wont to assert, in practice, if not in theory, its right to define the scientific frontier. We, being English, are, so I fancy, best acquainted with the claims of ethical speculation, and in some sort prejudiced in their favour. We are proud of a long line of moralists, which has not ended in Sidgwick and Martineau and Green, in Herbert Spencer and Leslie Stephen, and we conceive that the ‘jurist’, if indeed such an animal exists, plays, and of right ought to play, a subordinate, if not subservient, part in the delimitation of whatever moral sciences there may happen to be.

Of the Taff Vale Case we are likely to hear a good deal for some time to come. The trade unions are not content; there will be agitation; perhaps there will be legislation.

To one reader of English history and of English law it seems that certain broad principles of justice and jurisprudence are involved in and may be evolved from the debate: certain broad principles which extend far beyond the special interests of masters and workmen. Will he be able to persuade others that this is so? Can he assign to this Taff Vale Case its place in a long story?

Of late years under American teaching we have learned to couple together the two terms ‘corporations’ and ‘trusts’. In the light of history we may see this as a most instructive conjunction. And yet an apprentice of English law might well ask what the law of trusts has to do with the law of corporations. Could two topics stand farther apart from each other in an hypothetical code? Could two law-books have less in common than Grant on Corporations and Lewin on Trusts?

To such questions English history replies that, none the less, a branch of the law of trusts became a supplement for the law of corporations, and some day when English history is adequately written one of the most interesting and curious tales that it will have to tell will be that which brings trust and corporation into intimate connexion with each other.

Not very long ago, in the pages of this Review, Dr Redlich, whose book on English Local Government we in England are admiring, did me the honour of referring to some words that I had written concerning our English Corporations and our English Trusts. I have obtained permission to say with his assistance a few more words upon the same matter, in the hope that I may thereby invite attention to a part of our English legal history which, so far as my knowledge goes, has not attracted all the notice that it deserves.

Perhaps I need hardly say that we on this side of the sea are profoundly grateful to those foreign explorers who have been at pains to investigate our insular arrangements. Looking at us from the outside, it has been possible for them to teach us much about ourselves. Still we cannot but know that it is not merely for the sake of England that English law, both ancient and modern, has been examined. 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? Over and over again it has happened that our island has been able to supply just that piece of evidence, just that link in the chain of proof, which the Germanist wanted but could not find at home.

Extract from Maitland's Introduction to Political Theories of the Middle Age by Otto von Gierke

Staats- und Korporationslehre – the Doctrine of State and Corporation. Such a title may be to some a stumbling-block set before the threshold. A theory of the State, so it might be said, may be very interesting to the philosophic few and fairly interesting to the intelligent many, but a doctrine of Corporations, which probably speaks of fictitious personality and similar artifices, can only concern some juristic speculators, of whom there are none or next to none in this country. On second thoughts, however, we may be persuaded to see here no rock of offence but rather a stepping-stone which our thoughts should sometimes traverse. For, when all is said, there seems to be a genus of which State and Corporation are species. They seem to be permanently organised groups of men; they seem to be group-units; we seem to attribute acts and intents, rights and wrongs to these groups, to these units. Let it be allowed that the State is a highly peculiar group unit; still it may be asked whether we ourselves are not the slaves of a jurist's theory and a little behind the age of Darwin if between the State and all other groups we fix an immeasurable gulf and ask ourselves no questions about the origin of species.