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"The Loss of the Person: The British Debates on the Legal Status of Groups and Individuals, 1880-1930"
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29
no means alone, however. This movement had significant support within the academic legal community, offering an intellectual challenge to orthodox Fiction theory. Among those writing sympathetically toward Realism included A.V. Dicey
72
, Geldart
73
, W. Jethro Brown
74
and Paul
Vinogradoff.
75
The Realists made up a disparate group of thinkers, and there were
varying degrees of support for the realist presumptions, mixed with suspicion for Gierke’s neo-Hegelian theory of groups and of “group will.” Despite differing levels of enthusiasm for the Idealist propositions behind realism, there appears two distinct lines of arguments, analytically separablebut politically intertwined, defining the Realist position. First, realists argued that Fiction Theory is underpinned by a notion of State sovereignty that is dangerously absolutist and misunderstands the true nature of social life and of sovereign powers. Second, Realists argued that the group was not only deserving of legal recognition, but that it deserved this status precisely because it was not a persona ficta. Rather it was in possession of real personality, properly analogous to a natural person.
This later position is the strongest and most contentious of the Realists
arguments, and belief in it distinguishes the Realists from English Pluralism more generally. What elements did the realists identify that suggested that groups were properly analogous to natural persons? First, groups, like natural persons, play a social role and possess a social standing that was recognized (if only by the members of the group itself). Groups engage in social, and thus juridical, relations. Second, the group possesses a will, the capacity to exercise volition to generate and implement a purpose – a key criteria of a person in the German idealist tradition. Thus, the group possesses the intrinsic attributes of a Person, as well as social standing. Third, and on a pragmatic point, the group, like the individual, is threatened by the totalizing powers of the modern state and need to protections that are derived from legal recognition as a right and duty bearing unit.
However, one of the problems with the Realists argument was the
vagueness by which this all important analogy between persons and groups
72
A.V. Dicey. “The Combination Laws as Illustrating the Relation Between Law and Opinion in England
During the Nineteenth Century” 17 Harvard Law Review (June 1904) pp. 511-532.
73
W. M. Geldart, “Legal Personality” 27 The Law Quarterly Review (1911) pp. 90-108.
74
W. Jethro Brown. “The Personality of the Corporation and the State” 21 The Law Quarterly no. 84
(October 1905), pp. 365-379.
75
Paul Vinogradoff. “Juridical Persons” 24 Columbia Law Review (1924) pp. 594-604.
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29
no means alone, however. This movement had significant support within the
academic legal community, offering an intellectual challenge to orthodox
Fiction theory. Among those writing sympathetically toward Realism
included A.V. Dicey
72
, Geldart
73
, W. Jethro Brown
74
and Paul
Vinogradoff.
75
The Realists made up a disparate group of thinkers, and there were
varying degrees of support for the realist presumptions, mixed with
suspicion for Gierke’s neo-Hegelian theory of groups and of “group will.”
Despite differing levels of enthusiasm for the Idealist propositions behind
realism, there appears two distinct lines of arguments, analytically separable
but politically intertwined, defining the Realist position. First, realists
argued that Fiction Theory is underpinned by a notion of State sovereignty
that is dangerously absolutist and misunderstands the true nature of social
life and of sovereign powers. Second, Realists argued that the group was not
only deserving of legal recognition, but that it deserved this status precisely
because it was not a persona ficta. Rather it was in possession of real
personality, properly analogous to a natural person.
This later position is the strongest and most contentious of the Realists
arguments, and belief in it distinguishes the Realists from English Pluralism
more generally. What elements did the realists identify that suggested that
groups were properly analogous to natural persons? First, groups, like
natural persons, play a social role and possess a social standing that was
recognized (if only by the members of the group itself). Groups engage in
social, and thus juridical, relations. Second, the group possesses a will, the
capacity to exercise volition to generate and implement a purpose – a key
criteria of a person in the German idealist tradition. Thus, the group
possesses the intrinsic attributes of a Person, as well as social standing.
Third, and on a pragmatic point, the group, like the individual, is threatened
by the totalizing powers of the modern state and need to protections that are
derived from legal recognition as a right and duty bearing unit.
However, one of the problems with the Realists argument was the
vagueness by which this all important analogy between persons and groups
72
A.V. Dicey. “The Combination Laws as Illustrating the Relation Between Law and Opinion in England
During the Nineteenth Century” 17 Harvard Law Review (June 1904) pp. 511-532.
73
W. M. Geldart, “Legal Personality” 27 The Law Quarterly Review (1911) pp. 90-108.
74
W. Jethro Brown. “The Personality of the Corporation and the State” 21 The Law Quarterly no. 84
(October 1905), pp. 365-379.
75
Paul Vinogradoff. “Juridical Persons” 24 Columbia Law Review (1924) pp. 594-604.
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