I think it was Lord Halsbury, in the Scotch Church case, who stopped one of the advocates in his use of the word Church, saying that they as a Court had nothing to do with that, and that they could only consider the question as one concerning a trust. In other words, with a religious society as such they could not deal, but only with a trust or a registered company. This is only one instance of a fact exhibited in the whole of that case: namely, the refusal of the legal mind of our day to consider even the possibility of societies possessing an inherent, self-developing life apart from such definite powers as the State, or the individuals founding the body under State authority, have conferred upon them explicitly. In this view, apart from the State, the real society—and from individuals the living members of the State—there are no active social unities; all other apparent communal unities are directly or indirectly delegations, either of State powers or of individuals. To such a view the notion is abhorrent of a vast hierarchy of interrelated societies, each alive, each personal, owing to the State loyalty, and by it checked or assisted in their action no less than are private individuals, but no more deriving their existence from Government concession than does the individual or the family. In other words, these phrases of Lord Halsbury are but the natural expression of the concession theory of corporate life which sees it as a fictitious personality, the creation by the State for its own purposes, and consequently without any natural or inherent powers of its own. This theory is not so universally accepted as was once the case, but Professor Geldart's inaugural lecture on ‘Legal Personality’ shows how great are the obstacles still to be encountered by that theory of realism which is for most of us associated with the name of Gierke, and was popularised by Maitland. The latter, moreover, has shewn how this very English institution of the trust has preserved us from the worse perils of the rigid doctrinaire conception of the civilian. For under the name of a trust many of the qualities of true personality have been able to develop unmolested. But this has not been all to the good. It has probably delayed the victory of the true conception, by enabling us to ‘muddle through’ with the false one. Moreover, the trust is and assimilates itself always rather to the Anstalt or the Stiftung than to the living communal society, the true corporation, with its basis in the Genossenschaft; and consequently, as was proved in this Scotch case, the necessary independence of a self-developing personality is denied to it, and its acts are treated as invalid on this very ground—that it is only a trust tied rigidly to its establishing terms, and not a true society with a living will and power of change.
The Hand of Law and the Body of Family. Family, Fear and the Court of Law in Qing China
