I

The historian and jurist F. W. Maitland (1850–1906) is known today among scholars for two quite different things. First, he is regarded—or even revered—by many as one of the founding fathers of academic historical scholarship.Footnote ¹ Second, he holds a place in the history of political thought as the inaugurator of “political pluralism”: the school of thought that affirmed the importance of the intermediate groups, such as churches and trade unions, that stood between the individual and the state.Footnote ² These two contrasting reputations—the neutral scholar and the committed theorist—are based on different parts of Maitland's oeuvre: his medieval and legal scholarship, culminating in The History of English Law (1895),Footnote ³ and a number of short pieces on the role of intermediate groups in law, history and politics, which I shall refer to, for convenience, as his “late essays.”Footnote ⁴ Often, medievalists read only the former, and historians of political thought only the latter.Footnote ⁵

The aim of this article is to reintegrate the two halves of Maitland's work and so to understand the place of intermediate groups in his thought as a whole. In so doing, it locates Maitland in the context of the “new” liberalism in European thought that was emerging c.1900: a liberalism that cleaved to the great liberal ideals of freedom, progress and constitutional politics, but which also ascribed a new importance to ideas of community and solidarity. Both in his late essays and in his great works of historical scholarship, Maitland expounded the idea that associational life, rather than the individual, was the basis of freedom, progress and constitutional politics. This view drew upon nineteenth-century liberal traditions such as Germanist legal thought, English constitutionalism (so-called “Whig history”) and John Stuart Mill's linking of liberty with diversity. Yet Maitland also repudiated a number of earlier liberal doctrines, including the individualism of Henry Maine and Herbert Spencer and the constitutional orthodoxies of John Austin and A. V. Dicey. These themes cut across Maitland's historical, legal and political writings, and cannot be understood unless his works are studied in their entirety.

Historians of political thought have generally viewed Maitland as a “pluralist” thinker. The term “pluralism” was coined by the political philosopher Harold Laski in 1915 to describe thinkers who emphasized the importance of intermediate groups between the individual and the state.Footnote ⁶ Maitland is generally considered the founder of pluralism in England; indeed his idea of the importance of groups to political liberty inspired all the leading English pluralist thinkers, from J. N. Figgis and Ernest Barker to G. D. H. Cole and Laski himself. This view of Maitland is perfectly correct, but in an article devoted to understanding Maitland's thought on its own terms, it would be wrong to think that a term coined nine years after his death could have any great explanatory power. I shall therefore put it to one side for the rest of this essay, only returning to it at the end to see what impact a new understanding of Maitland has on our understanding of political pluralism in general.

II

Before proceeding to the main body of this article, it is necessary to explain at the outset a rather complex idea that came to play a central role in Maitland's work: that of the “real personality of the group.” It has long been known that Maitland introduced this idea to Britain from the work of the German historical jurist Otto von Gierke (1841–1921)—and it is this which has led him to be seen as the founder of English pluralism. Gierke, a professor in law at the University of Berlin, had argued that “personality” (Persönlichkeit) was an attribute not just of individuals, but of organized groups.Footnote ⁷ When people organize together, he said, the group that they form has a will and a personality distinct from the individual wills and personalities of its members.Footnote ⁸ This moral subjectivity demanded a corresponding legal subjectivity: the organized group should be able to be the subject of legal rights and duties in the same way as an individual.Footnote ⁹ In other words, the organized group must have legal personality like an individual: the ability to sue and be sued, to own property, to enter contracts and so on. This was the theory of the “real” personality of the group, so called to contrast it with the older view which held that groups could only obtain personality by a legal fiction (fiction theory) and with the permission of the state (concession theory).Footnote ¹⁰

Gierke believed that humans fulfilled themselves through associating together, and he celebrated the rich and diverse group life that he saw in German history.Footnote ¹¹ By the same token, he deprecated any political or legal theory that seemed to recognize only the individual on the one hand, the state on the other. Fiction and concession theory seemed to do just this, since they rendered group personality dependent upon the permission of the state. They had their origin in Roman law and had received systematic modern expression in the work of the great Romanist historical jurist Friedrich Karl von Savigny (1779–1861).Footnote ¹² Gierke, by contrast, claimed to base his group realist theory on the German law of the Genossenschaft (an untranslatable term usually rendered as “fellowship”), the history of which he surveyed in his great work Das deutsche Genossenschaftsrecht (The German Law of Fellowship).Footnote ¹³

If the group personality debate at first seems quite abstract, it should be remembered that it was also a matter of considerable practical, legal and political importance. In nineteenth-century Germany, many groups were denied legal personality: this was a formidable bar to freedom of association, since it could prevent groups such as political parties and trade unions from owning property or entering contracts.Footnote ¹⁴ Thus Gierke's ideas, though liberal in conception, were thought to have favorable implications for proscribed trade unions and socialist parties.Footnote ¹⁵ In the USA, corporate personality was central to the “antitrust” questions regarding overmighty corporations.Footnote ¹⁶ In Britain, the feasibility of strike action was seriously (albeit temporarily) undermined by the Taff Vale case (1900), a legal dispute which turned on whether trade unions had legal personality.Footnote ¹⁷ In France, one of the most bitterly contested political questions of the day was the Associations Law (1901). This provided that religious communities operating without state authorization would be dissolved and have their property confiscated: it was passed by anticlerical politicians who sought to drive the Catholic Church out of the provision of education.Footnote ¹⁸ The debate about group personality was therefore a prominent one in many countries around 1900, not just because of its theoretical importance in the debate about the individual and the state, but also because of its practical importance in determining social and political questions.

Gierke's idea of the real personality of the group is often said only to have arrived in England when Maitland translated Das deutsche Genossenschaftsrecht for an English readership in 1900.Footnote ¹⁹ But if Maitland's earlier works are also consulted, then it becomes clear that Maitland had been working with Gierke's ideas since at least 1890; that, despite this, he favored the fiction theory of group personality until 1897; that he then accepted group realism quite suddenly during that year; and that this acceptance profoundly shaped his major historical works as well as his late essays.

This article therefore considers the development of Maitland's thought in successive stages: the years down to 1897, the adoption of real-personality theory in that year, and its impact on his later works. With this framework established, Maitland's thought is then placed in the wider context of European social and political theory in the concluding section.

III

To begin to understand Maitland, we must understand the elements of his biography.Footnote ²⁰ He was an undergraduate at Cambridge from 1869 to 1873, where he took the Moral Sciences Tripos (philosophy and political economy) under the utilitarian philosopher Henry Sidgwick. After an abortive attempt to make a career in philosophy, he was called to the Bar and practiced as a barrister. He then returned to Cambridge in 1883 to teach English law (as a reader and later professor) until his death in 1906. He became a prolific and wide-ranging scholar, specializing in the history of English law in the Middle Ages.

At the time, the history of law was not a dusty subdiscipline but rather, in the guise of “historical jurisprudence,” a leading branch of humanistic scholarship. Along with fields such as political history, comparative philology, sociology and anthropology, it was seen as a key to understanding the development of human society in its totality.Footnote ²¹ Maitland became one of its foremost practitioners: an Austrian colleague described him in 1903 as “the consummate master of our Science.”Footnote ²² He attained this position both by his minute erudition, displayed in his editions of legal manuscripts, and by his commanding works of synthesis, such as The History of English Law (1895), Domesday Book and Beyond (1897) and Township and Borough (1898).

Maitland's Cambridge education had given him what might be termed a “historical utilitarian” worldview. By the 1870s, utilitarian thought had moved on from the rather ahistorical deductivism with which it had been associated in the time of Bentham and the philosophic radicals. Under the influence of J. S. Mill and Auguste Comte, utilitarians had come to believe in the need for a science of society as the basis for social reform.Footnote ²³ Maitland's teacher Sidgwick, the leading utilitarian of his generation, described the climate of the 1860s, shortly before Maitland's arrival in Cambridge: “History . . . was conceived as supplying the material on which we had to work, but not the ideal which we aimed at realizing; except so far as history properly understood showed that the time had come for the scientific treatment of political and moral problems.”Footnote ²⁴ This was very much the view that Maitland took of the purpose of history, its antiquarian fascination aside: “The only direct utility of legal history (I say nothing of its thrilling interest) lies in the lesson that each generation has an enormous power of shaping its own law.”Footnote ²⁵ He did not believe, in other words, that history had a prescriptive authority over present politics: the antiquity of a law or institution was not a reason for its preservation or restoration, as it was for many of his contemporaries.Footnote ²⁶

This same historical utilitarian milieu helps to explain another important facet of Maitland's work: his interest in the history of ideas. A number of Victorian writers, notably Leslie Stephen and Mark Pattison, had become interested in this subject thanks to their encounters with the argument put forward by Comte, Mill and others that the central story in human history was the progress of societies through ascending stages of intellectual development.Footnote ²⁷ Maitland was a generation younger than these figures, but he too had read his Mill and Comte (though he rejected any universal account of historical progressFootnote ²⁸), and he became a friend and protégé of Leslie Stephen's (whom he followed into agnosticism).Footnote ²⁹ As a Moral Sciences student, he came to study the history of philosophy before he became interested in the history of law,Footnote ³⁰ and when he turned to legal history, the hallmark of his work was a close attention to the ideas of past ages. “The history of law,” he declared, “must be a history of ideas. It must represent, not merely what men have done and said, but what men have thought in bygone ages.”Footnote ³¹ It was this which made him forever sensitive to “anachronism”—the imputation of modern ideas to medieval minds.Footnote ³²

Even more important to Maitland's intellectual formation than the historical utilitarianism of Victorian Cambridge was the world of German historical jurisprudence. Maitland had been brought up in a Germanophile household,Footnote ³³ and had a knowledge of German historical scholarship that was probably surpassed in Britain only by that of Lord Acton. It seems that his first close encounter with this world was reading the work of Savigny, the father of the historical school of law in Germany. Savigny's thought had two main elements. First, he argued that each nation's law was a great artifact of its history. Second, he was an ardent believer in the supreme rationality of classical Roman law and, by extension, in the benefits that had been conferred on Germany by its reception of Roman law.Footnote ³⁴ Maitland read Savigny during his time at the Bar and apparently began a translation of one of his works.Footnote ³⁵ This seems to have laid the groundwork for his interest in the history of law, and it left him with a lifelong admiration for the rationality of Roman law.

These early studies also convinced Maitland of Savigny's fiction theory of corporate personality.Footnote ³⁶ Maitland's early adherence to this doctrine may be seen in the first edition of The History of English Law, where in a section entitled “Fictitious Persons,” he declared that it was the Roman canon lawyers of the Middle Ages who had discovered corporate (or fictitious) personality.Footnote ³⁷ In another work he spoke of the invention of corporate personality by fiction theory as “a grand intellectual achievement comparable to the discovery of the differential calculus.”Footnote ³⁸ As in his later works, therefore, Maitland already saw group life as characteristic of modernity, but at this stage he thought that it had its origins in fiction theory, not in the real personality of the group. This position is consistent with his equivocal view of Gierke at the time: when researching the chapter on “Fictitious Persons” for The History of English Law he had read Das deutsche Genossenschaftsrecht avidly, but he considered it “too metaphysical.”Footnote ³⁹ Hence he remained a convinced exponent of Savigny's fiction theory.

Yet Maitland never followed Savigny to the Romanist conclusion that Roman law was superior to all other law. Instead, he tended to side with the Germanist branch of the historical school which had grown up in the mid-nineteenth century, of which Gierke was a leading member. The Germanists argued that the national law of Germany was not the Roman law that had been received in the early modern era, but rather the Germanic law that had preceded it.Footnote ⁴⁰ They sought to recover the fragments of this Germanic law from the historical records of Germany and other Germanic societies, including England, and thereby to reconstruct a coherent system of law that could be embodied in the law codes that were one of the main projects of nineteenth-century liberals. The leader of the Germanists was Georg Beseler (1809–88), who drew a distinction between Volksrecht (people's or national law) and Juristenrecht (jurists’ law): whereas Germanic law had grown organically from the life of the nation, Roman law was the abstract creation of lawyers. The leading example of Germanic Volksrecht that Beseler highlighted was the idea of the Genossenschaft. The Germanists claimed that the Genossenschaft of Germanic law was a community with legal personality, and they contrasted it with Roman law's limited and fragile conception of group personality in fiction and concession theory.Footnote ⁴¹ Beseler's student Gierke took up this theme and made it the basis of Das deutsche Genossenschaftsrecht, a kaleidoscopic historical account of associational life in German history. The Germanist argument also had a sociopolitical edge: it claimed that Germanic law was the law of free community life, whereas Roman law was the law of the absolutist state and individualist capitalism.Footnote ⁴²

Even before Maitland's adoption of group realism, his historical works were profoundly influenced by the work of the Germanists. This may be seen in his first major scholarly achievement, an edition of Bracton's Note Book (1887). It was in this work that Maitland established the conception of English law that would underpin the rest of his historical work. The putative author of the notebook, Bracton, was a thirteenth-century lawyer whose writings had profoundly influenced the development of English law in the Middle Ages. It had been supposed by some, notably the historical jurist Henry Maine (a Romanist admirer of Savigny), that Bracton had imported a great deal of Roman law into English law.Footnote ⁴³ Maitland set out to refute this idea and to vindicate the distinctive Germanism of English law. He argued that the influence of Roman law on Bracton's work had led not to the substantive Romanization of English law, but merely to its formal rationalization.Footnote ⁴⁴ This rationalization meant that Volksrecht and Juristenrecht had never gone their separate ways in England: English law belonged to both the nation and the jurists. It was this that had given it the scholarly toughness to survive into the modern era, unlike the customary Germanic laws of France and Germany which had long since been supplanted by Roman law.Footnote ⁴⁵ English law after Bracton, therefore, was conceived by Maitland as a rational system of Germanic law—the great desideratum of Germanist jurisprudence.

Maitland also took what might be called a qualified Germanist position in the great scholarly debate about “village communities.” This concerned the early social organization of Germanic (or even Indo-European) societies.Footnote ⁴⁶ Many scholars had suggested that primitive society had consisted of democratic, communal agrarian units—“free village communities.” This idea was used by liberals to argue for democracy and by socialists to argue for land nationalization. Others, notably Maine, used it to argue that progressive societies had moved from communalism to individualism, and that a return to communalism would therefore be a retrogressive step.Footnote ⁴⁷ Still others, such as the Romanists Fustel de Coulanges and Frederic Seebohm, denied the existence of the free village community altogether, arguing instead that early medieval society had been characterized by lordship, private property and the survival of Roman institutions.Footnote ⁴⁸ Among German historical jurists, the debate focused on the exact legal nature of the German agrarian Genossenschaft. Did it own land as a legal person in its own right like a modern corporation? Or did its members own the land as individual co-owners? Or was it a hybrid type of community which corresponded to neither of these modern ideas?Footnote ⁴⁹ The Germanists tended towards the last of these options.Footnote ⁵⁰

Maitland threw himself into this debate in Domesday Book and Beyond. Not being a believer in the prescriptive authority of the past, politics were not at the front of his mind. But his response was still shaped by conceptual as well as empirical considerations. Notable among these was his concern to reject the Romanist theories of Fustel and Seebohm and so to salvage the case for the free Germanic village as the primitive unit of early medieval society, at least in England.Footnote ⁵¹ But his idea of land ownership in the village corresponded to none of the solutions put forward by German scholars. He argued instead, with his characteristic attention to the history of ideas, that before the formulation of the modern idea of corporate personality in the late Middle Ages, there had been no clear idea of corporate or individual ownership, nor any clear hybrid of the two: instead, ideas had been “vague” and “undifferentiated.”Footnote ⁵² In other words, the villagers had had no clear conception of who owned the land in the village. Indeed, the idea of ownership itself was only slowly distinguished from the idea of political rule: both had emerged from a single idea of dominium (lordship).Footnote ⁵³ The progress had therefore not been from the communal to the individual (as Maine and others had supposed), but rather “from the vague to the definite.”Footnote ⁵⁴ This was, in other words, an evolutionary progress, where evolution (as classically defined by Herbert Spencer) was a change “from an indefinite, incoherent homogeneity, to a definite, coherent heterogeneity.”Footnote ⁵⁵ The indefinite, incoherent homogeneity of property rights in the village community had evolved into the definite, coherent heterogeneity of corporate rights and individual rights, and dominium had likewise evolved into ownership and rule, or property and politics.

On top of this evolutionary perspective, Maitland went on to argue that, insofar as the vague ideas of the early Middle Ages could be reliably analyzed, they tended more towards individualism than communalism. The earliest evidence suggested not “a communistic division of the fruits” in Germanic villages, but rather the division of land into strips for each individual householder: “so far back as we can see, the German village had a solid core of individualism.”Footnote ⁵⁶ He found this unsurprising since he still believed that corporate personality, which would have allowed the village to own property, was a sophisticated fiction unknown to primitive villagers. It was indeed a risible anachronism to say that “the ownership of land was attributed to fictitious persons before it was attributed to men”: “If . . . we introduce the persona ficta too soon,” he added, “we shall be doing worse than if we armed Hengest and Horsa with machine guns.”Footnote ⁵⁷ His continuing adherence to fiction theory, therefore, inclined him towards an individualist view of early medieval society.Footnote ⁵⁸ Yet whereas many of his contemporaries would have used this primitive individualism to ratify individualism in the present day, Maitland was doing the exact reverse. As we have seen, he thought that the invention of corporate personality by the canon lawyers was a progressive achievement comparable to the invention of calculus, and he had no desire to turn the clock back to the vague, preponderantly individualist ideas of ancient Germanic villages.

It is therefore clear that although Maitland had engaged thoroughly with Germanist scholarship before 1897, including on questions concerning groups and communities, he remained wedded to the Romanist theory of corporate personality which he had acquired from his early reading of Savigny. He already saw corporate personality as the fruit of progress in legal ideas—a perception that was important to his later thought—but he had not yet made the intellectual leap to group realism (and hence to “pluralism”).

IV

This leap in Maitland's thought can be dated quite precisely to 1897. On 20 January 1897, he signed the preface to Domesday Book and Beyond—a work replete with the language of fiction theory.Footnote ⁵⁹ By October, he was expounding the realist theory of group personality to an audience in Oxford, in lectures that were published the following year as Township and Borough.Footnote ⁶⁰ At the same time,Footnote ⁶¹ he was revising The History of English Law for its second edition by stripping out all references to corporations as artificial or fictitious persons and by rewriting the sections on “The Borough” and “Fictitious Persons” (retitling the latter “Corporations and Churches”).Footnote ⁶²

Why did Maitland change his mind in this way? The answer is that he reread Gierke and this time was persuaded by him. Maitland made this clear in the History of English Law itself, explaining that his revisions had been prompted by a “repeated perusal of Dr Gierke's great book,” Das deutsche Genossenschaftsrecht.Footnote ⁶³ This in turn seems to have been prompted by a review of the first edition of The History of English Law by the Germanist historian Heinrich Brunner, which, while broadly complimentary, reproved Maitland for failing to understand Gierke's ideas about groups.Footnote ⁶⁴ Maitland, stung by this criticism, returned to Das deutsche Genossenschaftsrecht and this time was persuaded of its central tenet: group realism. If anything, though, it is not the fact that Maitland changed his mind that should surprise us, but rather, so steeped as he was in Germanist scholarship, that it took him so long. The reason for the delay, evidently, was that his English legal training and his utilitarianism had hardened him against such metaphysical doctrines as group realism, so that it was only by 1897 that he was at last ready to absorb it.

This little epiphany in 1897 unlocked the door to Maitland's late essays on the trust, the corporation and the Crown. But Maitland first signified his change of views not in an essay, nor even in The History of English Law, but in a work of urban history, namely Township and Borough. The significance of this book (and its companion piece, the chapter on “The Borough” in The History of English Law) can only be understood as a species of the contemporary fascination in European scholarship with the city—especially the medieval city—and the bourgeoisie.Footnote ⁶⁵ (Terminology is a stumbling block here: the city and its citizens and the borough and its burgesses—or bourgeoisie—were interchangeable terms, except that in England “city” specifically denoted a cathedral town.Footnote ⁶⁶) Maitland's aim in Township and Borough was to explain how and why the borough had attained corporate personality in the later Middle Ages while the mere township (the legal unit corresponding to the village) had not. Township and Borough was thus a work “deeply in debt to Dr Otto Gierke”: so important, indeed, was the idea of group personality that Maitland had first conceived of the work as a study of “English boroughs and German theories.”Footnote ⁶⁷ The book's argument, in essence, was that the idea of the corporate personality of the borough had arisen spontaneously from urban life. As towns became larger and more complex in the thirteenth and fourteenth centuries, the borough began to act as a legal person, for instance by collecting revenues, entering contracts and leasing land.Footnote ⁶⁸ Such functions were uncommon in village life, so the township had never attained corporate personality: rather, “Corporateness came out of urban life.”Footnote ⁶⁹ This was a vindication of the realist theory of group personality, since it showed that the borough had attained “latent” group personality before fiction theory was adopted by English law in the fourteenth century.Footnote ⁷⁰

The conclusion that group personality was “a late and high and distinctively urban stage of development”Footnote ⁷¹ allowed Maitland to go further in his critique of Maine. Maine's Ancient Law had famously argued that “the movement of the progressive societies has hitherto been a movement from Status to Contract,” i.e. from the involuntary legal relations of the patriarchal household (father–son, husband–wife, master–slave) to the voluntary contractual ties between individuals in modern society.Footnote ⁷² This was the same progress as that from communalism to individualism discussed above, since it corresponded to the rule that whereas “the unit of an ancient society was the Family” (the patriarchal household), that of “a modern society [is] the individual.”Footnote ⁷³ In Township and Borough, Maitland repeated the argument he had made in Domesday Book and Beyond that the community or corporation was not the unit of ancient law.Footnote ⁷⁴ But instead of attributing the idea's development to the deus ex machina of fiction theory, he now argued that it had arisen spontaneously as society became more complex. It had been invented in the towns and had proliferated in modern society, with its joint-stock companies, clubs, charities and other groups. Hence he was “inclined to reverse a famous judgment and to say that while the individual is the unit of ancient, the corporation is the unit of modern law.”Footnote ⁷⁵ Progress, in other words, led to group formation, not individualism. Indeed, society was no longer moving “from status to contract, but through contract to something that contract cannot explain”: “the personality of the organised group.”Footnote ⁷⁶

With this new understanding of social progress, Maitland could proclaim that the forging of the idea of corporate personality in the medieval borough was “one of the greatest moral and legal achievements of the middle ages, an achievement which made possible the countless and variegated corporations of modern days.”Footnote ⁷⁷ This echoes his earlier opinion that the invention of the corporation was as significant as the invention of calculus, but of course it ascribes the feat not to the craft of Roman lawyers but to the common sense of English burghers.

V

After the History of English Law and Township and Borough, Maitland's intellectual trajectory began to alter. He had never enjoyed good health—he suffered from intermittent glycosuria, a condition related to diabetes—and from 1898 onwards he was compelled to spend the winter months of every year in Grand Canary or Madeira because of his susceptibility to illness.Footnote ⁷⁸ This changed the pattern of his work, since it meant spending much of the year away from libraries: he used most of the time abroad to edit Year Books (English medieval law reports), though his second winter away he spent translating Gierke.Footnote ⁷⁹ New projects were also thrust upon him: he felt obliged to write a chapter for Lord Acton's Cambridge Modern History on Reformation history, and the dying request of Leslie Stephen compelled him to write the Life and Letters of that eminent Victorian.Footnote ⁸⁰ These disruptions to his work, and his awareness that he might not have long to live, seem to have prompted him to channel his energies into concise, allusive and wide-ranging essays, rather than big books. He often said that if time and health were on his side he would have devoted the rest of his life to a history of the English borough—a mark of the importance that he accorded that subject—but instead he edited Year Books and wrote the brilliant series of essays on corporations, trusts and personality.Footnote ⁸¹ He also gave a number of other lectures and talks on corporate personality, some of which survive in manuscript.Footnote ⁸²

This shift in Maitland's work, however, was more a matter of form than of substance. The essential continuity in his works was his preoccupation with the relationship between English law and Roman law, especially as exhibited in the English law of groups. But there was now, because of his conversion to group realism, a still more definite Germanist slant to his writings. Whereas once he had followed Savigny in emphasizing the rationality of Roman law, he now stressed that Roman civil and canon law were the tools of authority, hierarchy and centralized sovereignty.Footnote ⁸³ Roman law, he said, was the law of “an unassociative people.” Fiction theory and concession theory meant that “[a]ll that stands between the State and the individual has but a derivative and a precarious existence”—and their ultimate consequence (visible in modern France) was to grind to atoms every group that stood between the two.Footnote ⁸⁴ And whereas Germanic law was characteristic of the Middle Ages, Roman law was “antique–modern”: it was the law of the ancient world and its post-Renaissance imitators.Footnote ⁸⁵ Group realism, in other words, was one aspect of a wider Germanist argument that Maitland was making at this time.

This may be seen clearly in Maitland's later works on the corporation and corporate personality. In the revised edition of the History of English Law, he argued that the importation of fiction theory from the Roman canon law into English law in the late Middle Ages had not only been unnecessary—since the personality of the group had already been recognized in the borough—but also harmful. It was essentially a statist and individualist theory, designed for hierarchical ecclesiastical corporations such as the chapterhouse, not for the free city, village or guild: “the canonist's corporation is rather a personified institution than an [sic] unified group of men.”Footnote ⁸⁶

Underlying this distinction was Gierke's dualism of Anstalt (institution) and Genossenschaft (fellowship): the Anstalt was a group organized by authority (e.g. the church), whereas the Genossenschaft was a group organized by free association (e.g. the city or guild).Footnote ⁸⁷ The same polarity provided the basis for Maitland's celebrated essays for the Law Quarterly Review on “The Corporation Sole” and “The Crown as Corporation” (1900–1). These were a critique of the doctrine that had arisen in sixteenth-century England that held that there could be a corporation with only one member at any given time (a corporation sole).Footnote ⁸⁸ The idea had begun, he noted, as a device to explain how the land of a parish church passed from one parson to the next: the land, in this view, was held by the parson not as an individual but as a corporation sole.Footnote ⁸⁹ In time, the Crown too had come to be described as a corporation sole: public powers were vested in the Crown as a corporation sole, not in the king himself.Footnote ⁹⁰ Maitland thought this to be the ultimate absurdity of fiction theory: a corporation sole, having only one member, was not a group with a will of its own distinct from its members, but merely a spuriously personified institution—and so, in juristic terms, the corporation sole had never really succeeded.Footnote ⁹¹ In short, the essays on the corporation sole were a case study of the malign influence on English law of the Roman and ecclesiastical fiction theory of corporate personality.

Alongside the corporation, the other major focus of Maitland's later essays was the trust, and here too he put forward a Germanist and group realist point of view. The trust was one of the major institutions of English law: it imposed an obligation on the legal owner of property (the trustee) to hold the property for the benefit of another person (the beneficiary or “cestui que trust”).Footnote ⁹² The trust was a creature not of the common law, but of equity—a branch of English law administered historically by the Court of Chancery.Footnote ⁹³ Maitland had himself practiced at the Chancery Bar, and at Cambridge he gave a regular lecture series on equity.Footnote ⁹⁴ As early as Township and Borough he perceived that the trust had an important place in the English law of groups,Footnote ⁹⁵ but he only came to set out his ideas in full in an introduction he wrote for his translation of Gierke and in an article on “Trust and Corporation” that he wrote for an Austrian law journal.Footnote ⁹⁶ (He may have been prompted to elaborate his ideas by Gierke's remark to him in a letter that “I do not understand your trust.”)Footnote ⁹⁷

Maitland saw the trust as a product of Germanic law which had survived into the modern era in England alone: it was thus “the greatest and most distinctive achievement performed by Englishmen in the field of jurisprudence.”Footnote ⁹⁸ He compared it (drawing on the work of the American lawyer Oliver Wendell Holmes Jr and, ultimately, of the Germanist Beseler) with similar institutions in early Germanic law such as the Lombard Treuhand, and he rejected the notion that it derived from the Roman fideicommissum.Footnote ⁹⁹

The trust's importance, he said, for the law of groups was that it had provided two means of supporting organized groups after the rise of the fiction and concession theories in the early modern era. These means were (i) the charitable trust (in which property was held on trust for a charitable purpose, which often corresponded to a group such as a religious congregation),Footnote ¹⁰⁰ and (ii) the unincorporate body (in which property was held on trust for members of a contractual association, such as a club or trade union, that lacked legal personality).Footnote ¹⁰¹ Since no state permission was needed to set up a charitable trust or unincorporated association, the statist consequences of concession theory had been avoided. The trust had thereby fostered religious liberty, since it had enabled the preservation of Nonconformist churches that the state might have denied permission to incorporate,Footnote ¹⁰² and it had facilitated the free formation of groups as diverse as the trade unions, the London Stock Exchange, the Inns of Court and the insurance market Lloyd's of London.Footnote ¹⁰³ In other words, it had created a vast “field of social experimentation” in which clubs, charities and other groups could be set up freely and easily.Footnote ¹⁰⁴ It is in this idea of the trust as a vehicle for social experimentation that we see one of the main links between Maitland's group realism and Victorian liberal thought. Like J. S. Mill, Maitland believed that liberty led to diversity—we may compare his “social experimentation” with Mill's “experiments in living”—which led in turn to social progress as good experiments prospered and bad ones failed.Footnote ¹⁰⁵

Maitland's celebration of the liberal consequences of the law of trusts was closely connected to his broader conception of the historical basis of English liberty. Liberty in Victorian and Edwardian England was primarily discussed not through abstract definitions but through the discourse of English constitutionalism—the prevalent belief that England had always been an exceptionally free country thanks to its constitution.Footnote ¹⁰⁶ Victorian constitutional historians had said that all countries in Western Europe had begun as free, Germanic societies, but that freedom had survived in England alone in part because it had escaped the re-Romanization of Europe by the empire and papacy and the revival of Roman law (that “most pliant tool of oppression,” in one historian's words).Footnote ¹⁰⁷ Maitland shared these views: he too was a Germanist and an English constitutionalist.Footnote ¹⁰⁸ But he differed from earlier constitutionalists on one important point: for historians such as Macaulay, Stubbs and Freeman, it was the survival of Parliament that had made English history exceptional and free; for Maitland, by contrast, it was the survival of England's medieval Germanic law—including the trust—that had achieved this result.

Maitland argued that the exceptional survival of English law was (as we have seen) a consequence of its early rationalization by Bracton in the thirteenth century. This had meant that English law had become a coherent, learned law, taught in the Inns of Court and studied in the Year Books, unlike the customary laws of France and Germany.Footnote ¹⁰⁹ It was this that had ensured the continuance of English law and liberty: “What is distinctive of medieval England is not parliament, for we may everywhere [in Europe] see assemblies of Estates . . . But the Inns of Court and the Year Books that were read therein, we shall hardly find their like elsewhere.”Footnote ¹¹⁰ This belief that English liberty inhered not in Parliament but in the law is in turn consistent with Maitland's commitment to the history of law, rather than to the political and constitutional history, with its focus on Parliament, that had prevailed in universities hitherto.Footnote ¹¹¹

This commitment also helps to explain why it was Maitland who first cast doubt on the cherished constitutionalist idea that Parliament had already taken something like its modern form as early as the “Model Parliament” of 1295.Footnote ¹¹² Indeed one can go further and say that Maitland's interest in local and corporate life—his pluralism—complemented and reflected his study of legal history, since the historian of law studied the whole range of social and economic life, whereas the political or constitutional historian concentrated on “the flashy episodes of national life, scenes in Parliament . . . wars and rumours of wars.”Footnote ¹¹³

Maitland's low view of the importance of Parliament is also relevant for understanding his political theory, and in particular his ideas about sovereignty. From an early stage, Maitland had been a critic of the positivist conception of law and sovereignty that was so influential in nineteenth-century England.Footnote ¹¹⁴ The leading exponent of this view was John Austin, who defined law as sovereign command and who therefore declared that every legal system required a single authoritative sovereign.Footnote ¹¹⁵ This view had never been accepted by historical jurists: Maine, notably, had argued that since most legal systems in world history had had no sovereign legislator, Austin's definition of law was fundamentally flawed.Footnote ¹¹⁶ Maitland echoed this critique in his early works, arguing that there had been no Austinian sovereign in medieval England, when church and state had been coordinate powers.Footnote ¹¹⁷ In later works he came to view the idea of central sovereign authority as a product of Roman law: kings and popes justified their absolutism by claiming the authority ascribed by Justinian to the princeps.Footnote ¹¹⁸ Hence the drift towards the idea of sovereignty was an intellectual movement “away . . . from Germanic lands and towards the Eternal City.”Footnote ¹¹⁹ The culmination of this process was the rise of natural law and the social contract of Hobbes and Rousseau: a theory of the state that was both individualist in its reliance on contract and statist in its end result. No wonder Hobbes had described corporations as worms in the body politic, and the French Revolution had led to the dissolution of all corporations.Footnote ¹²⁰

This point in turn leads us to Maitland's critique of certain defects in English law and history—a critique that counterbalanced his patriotic idea of English liberty. He believed that England's littleness and insularity, and the strong central authority created by the Norman Conquest, had made England a more “unicellular” country than its Continental neighbors.Footnote ¹²¹ Even in medieval times it had been “a much governed and a little England”: its politics and geography had created centralist and individualist tendencies—individualist because the strong centre weakened group life—that pulled in the opposite direction to its Germanic law.Footnote ¹²² It was these factors that had allowed Parliament eventually to establish itself as the supreme sovereign authority: “the way for Hobbes had been prepared of old.”Footnote ¹²³ For other constitutionalists, such as Stubbs and A. V. Dicey, the early development of a central authority was something to celebrate: it had enabled the establishment of what Dicey christened “the rule of law”—the supremacy of one law throughout the realm.Footnote ¹²⁴ Maitland, however, emphasized the downsides, arguing that the strength of the central state had stifled the development of group life, except that provided for by the trust. He suggested (in terms far removed from other constitutionalists) that an overmighty Parliament had “suck[ed] the life blood of all other institutions,” particularly those of local government, with the result that the borough had descended into corruption and local government had become an “appalling mess” of different boards and authorities.Footnote ¹²⁵

The overcentralization of England was also a theme in Maitland's critique of the poverty of English political theory and public law.Footnote ¹²⁶ Austin's “speciously logical but brittle theories” of sovereignty were one result of this poverty.Footnote ¹²⁷ Another was the vesting of the state's legal personality in the Crown as corporation sole. Maitland believed that this had stood in the way of a proper conception of the state as a body comprising the entire nation—a group person that he thought might best be termed “the Commonwealth.” If the reality of this group's personality was recognized, then England might begin to have a theory of the state.Footnote ¹²⁸ Political theory and public law might then recognize the state (or Commonwealth) as a group person comprising many other group persons, from colonies and local government to companies and charities.

This would, moreover, have represented a return to Maitland's ideal: “The federalistic structure of medieval society” with “the body politic as communitas communitatum [the community of communities], a system of groups, each of which in its turn is a system of groups.”Footnote ¹²⁹ If the Austinian idea of an absolute sovereign and the fictitious idea of the Crown as corporation sole were replaced by the “Commonwealth” as a community of communities, then political theory and public law might have a solution to questions such as Ireland's place within the United Kingdom or the colonies’ place within the empire: they would be group persons in a federation, rather than territories over which parliamentary sovereignty was impotently asserted.Footnote ¹³⁰ The idea of sovereignty as “a supralegal, suprajural plenitude of power concentrated in a single point at Westminster” should give way, he insinuated, to Gierke's idea of sovereignty as “an attribute, not of some part of the State, but of the Gesammtperson [sic], the whole organized community.”Footnote ¹³¹ This, then, was Maitland's answer—nebulous though it was—to the twin questions of Home Rule and imperial governance which bedevilled the politics of the United Kingdom in the years around 1900.

The other side of Maitland's argument in this field was his suggestion that, just as the trust had mitigated fiction theory's consequences in private law, so it had mitigated the consequences of central sovereignty in public law. He noted that political theorists, jurists and politicians had often come to speak of public power as being held “on trust” for certain groups: for instance, a statute had said that the East India Company held its territories on trust for the Crown; a newspaper spoke of America holding Cuba on trust for the Cubans; and John Locke had used the language of trusts to cover some of the weak points in his contractual theory of the state.Footnote ¹³² Similarly, local authorities were said by the courts to hold their powers and property on trust for the community.Footnote ¹³³ The trust in public law and political theory was an imprecise and generally unenforceable concept, but this did not mean that it was unimportant, any more than the contract became unimportant when it migrated from private law into political theory in the guise of the social contract.Footnote ¹³⁴ Instead, the idea that political power was held in trust for a certain group had provided a useful supplement to England's jejune body of political theory, with its centralist and individualist focus on sovereignty and contract.

Overall, therefore, Maitland upheld some but by no means all of the orthodox tenets of English constitutional historians and lawyers. In particular, he attributed England's exceptional freedom not to parliamentary sovereignty and the rule of law, but to the survival of free, associative Germanic law, and especially the trust. He did not make specific and concrete proposals for the replacement of the centralist constitutionalism of parliamentary sovereignty, but he believed that future developments ought to work towards a realist theory of group personality in private law and a corresponding federalism in public law. Such developments would make England a Rechtsstaat: a state ruled by law according to the German liberal ideal.Footnote ¹³⁵ Maitland's idea of group life was, in other words, a fusion of English constitutionalism with German (and Germanist) liberalism.Footnote ¹³⁶

VI

It will be clear by now that Maitland's ideas were not by any means a political program devised for easy public consumption. He was, as Stefan Collini rightly notes, far less of a contributor to public debate than earlier jurists such as Austin, Maine and Dicey.Footnote ¹³⁷ He was a scholar first and last, and his writings on group realism were addressed not to the general reader, but to fellow students of law and history. He was also detached from questions of party politics—a subject which never obtrudes in his published work and seldom in his correspondence.Footnote ¹³⁸

Instead of analyzing Maitland's ideas as a contribution to public or political debate, therefore, we should consider them from the perspective of European intellectual history. The most important context here is the reaction in the late nineteenth century against the individualist, contractualist ideas of progress and liberty espoused by Victorian liberals such as Henry Maine and Herbert Spencer.Footnote ¹³⁹ This reaction took many forms—socialist, conservative and liberal. The “new” liberals continued to put liberty and progress at the heart of their credo, but sought to do so without relying so heavily on individualism and contractualism. The connection that Maitland drew between liberty and group life was one instance of this. Yet the new liberal reaction against individualism took many forms: the question, therefore, is where Maitland should be located within it.

At this time, the leading anti-individualist school of thought in Britain was idealism. As a utilitarian disciple of Sidgwick, Maitland stood at some distance from the idealists, but there were some affinities, which he fully recognized, between his ideas and theirs. The idea of the personality of the state had been central to the political thought of Kant and Hegel—and those philosophers had, of course, had a substantial influence on both the British idealists and Gierke.Footnote ¹⁴⁰ Where Maitland differed from the idealists was in his view that personality was an attribute not just of the state, but of all groups. Yet Maitland himself succeeded in narrowing this difference. In his introduction to Gierke, he argued that if idealists recognized that the state embodied the general will of the community, then they should also recognize that other groups embodied the general wills of their members too.Footnote ¹⁴¹ The leading political theorist of British idealism, Bernard Bosanquet, went some way to accepting this in a new edition of his Philosophical Theory of the State (1910). Citing Maitland, Bosanquet admitted that all groups had a real will, that sovereignty was an attribute not of any one institution but “of the system of institutions as a whole,” and that the state could therefore be a federation or a unit in a wider federation. But still he maintained that the state was a unique group—“an absolute power should be single in reference to each individual”—and so he continued to resist the arguments made by Maitland's pluralist successors.Footnote ¹⁴²

In a wider European context, Maitland's ideas about group life may in some respects be compared with those of the sociologists Ferdinand Tönnies and Émile Durkheim, for both of whom the group or community was a major topic of interest. For Tönnies, this was represented by the idea of Gemeinschaft (organic community), which he saw as the antithesis to modern Gesellschaft (the mechanical society of contractual individualism)—a dualism closely related to Gierke's dualism between Germanic and Roman law.Footnote ¹⁴³ Durkheim, meanwhile, believed that “collective life” was the basis of morality, and that economic life in particular needed to be organized into professional groups, as it had been in the Middle Ages. This, for him, was the best means of counteracting the moral anarchy (anomie) of the modern state and its atomized individual members.Footnote ¹⁴⁴

But while there are clear similarities to both Tönnies and Durkheim in Maitland's affirmation of group life as an antidote to individualism and statism, there are also important differences. Maitland was an optimist who thought that contemporary society pullulated with group life as never before, not that it was tending towards atomism. Tönnies and Durkheim also emphasized what might be termed the “communitarian” side of group life; that is to say, its socially cohesive properties. Maitland, by contrast, emphasized its “libertarian” side: he saw the flourishing of group life as an essential quality of a free society and as a means of social experimentation and progress, rather than as a means of strengthening the social bonds between atomized individuals. To some extent, Tönnies's dictum that England was insulated from a belief in community by its preoccupation with liberty holds good even for the group realist Maitland.Footnote ¹⁴⁵

A closer parallel may perhaps be drawn with Max Weber, for whom the free and voluntary association (Verein) was a phenomenon of particular sociological interest. The most prominent example of the Verein in his work was the religious sect—a conceptual building block of The Protestant Ethic and Spirit of Capitalism (1904–5).Footnote ¹⁴⁶ Weber presented an antithesis between the associational sect (free, voluntary and charismatic) and the institutional church (hierarchical, authoritarian and bureaucratic): an antithesis that in many respects mirrors Gierke and Maitland's antithesis between the Germanic Genossenschaft and the Roman or ecclesiastical Anstalt.Footnote ¹⁴⁷ But Weber was no Germanist,Footnote ¹⁴⁸ so his interest was rather the Verein (club or association) than the mystical Genossenschaft, which he dismissed as a phenomenon mainly of agrarian history.Footnote ¹⁴⁹ Yet he was, like Maitland, interested in the associational life of the medieval city or borough as a trailblazer for modern socioeconomic life.Footnote ¹⁵⁰ And he took an admiring interest in the proliferation of associational life in the modern world, recommending this as a subject of research in an address to the German Sociological Society in 1910Footnote ¹⁵¹—an interest that echoes Maitland's enthusiasm for the superabundance of modern group life. We can therefore see that whereas for Tönnies and Durkheim the group was valuable as an expression of community, for Weber and Maitland it was valuable as an expression of freedom.

Understanding Maitland's thought as a whole and in its context also has consequences for our idea of political pluralism. First, if the term is to be used retrospectively at all, it is clear that the story of English political pluralism begins not with Maitland's translation of Gierke, but with Township and Borough. This is not just a trivial point of chronology. Rather, it encapsulates the greater point that pluralism's origins lie more in history and law than in political philosophy. More particularly, its origins—and the source of its strengths and weaknesses—lay in the Germanist constitutionalism that was so prevalent among historians and jurists on both sides of the North Sea. Indeed, in a wider perspective it may be viewed as one of the countless offspring of the great nineteenth-century fascination with medieval Europe—and particularly with the institutions of medieval Germanic societies. With this in mind, it is no surprise that the leading exponents of pluralism after Maitland—Barker, Cole, Laski, Figgis—were all historians in origin;Footnote ¹⁵² nor that its closest Continental affinities were with sociology—a subject then much preoccupied with the development of European society—not philosophy.

This leads to a final reflection on Maitland himself. His reputation as the first great professional historian—an empirical scholar of consummate technical skill and fathomless learning—has had the effect of abstracting him from his time and effacing his debts to earlier scholars. Hence one devotee has described his intellectual formation as a case of “intellectual parthenogenesis,”Footnote ¹⁵³ and even John Burrow considered The History of English Law to be “the paradigm of a new historical objectivity.”Footnote ¹⁵⁴ But when Maitland's great works of history are read in the light of his late essays, it becomes clear that he was no mere empiricist. Rather, his historical work was shaped at every turn by conceptual thinking: witness the rewriting of The History of English Law to take account of Germanist theories of the group. Indeed, Maitland was not so much the first professional historian—a curious description anyway for a graduate in the moral sciences, barrister and law professor—but rather a great and characteristic product of an age when history, law, sociology and political theory were all threads in a seamless web of historicist scholarship.