Maitland's 'State, Trust and Corporation'.
Maitland, F. W. State, Trust and Corporation. Edited by David Runciman and Magnus Ryan. Cambridge University Press, 2003.
The twentieth century rediscovery of civil society in Anglo political thought can be traced with precision to a set of legal and historical inquiries that clarified how collective life acquires a personality distinct from the sum of its members. The essays by F. W. Maitland on state, trust and corporation are a decisive moment in that story, since they show that the modern state is not the only bearer of legal and moral personality and that the texture of public life depends on many intermediate associations that live alongside it. Maitland did not write a manifesto for civil society. He wrote careful studies of the Crown as a corporate person, the corporation sole, the unincorporated body, the difference between moral and legal personality, and the peculiar institution of the trust. Those studies made available a rigorous vocabulary for understanding non governmental associations and set out a genealogy for their powers. From this analysis a robust account of civil society could be theorised and that account continues to anchor democratic political structure.
The starting point is a simple question that Maitland puts to English law. What makes associations real in the eyes of the law, and what kinds of work can they do? He shows that English jurists developed two distinctive devices to render groups durable and effective. One is the corporation, which treats the group as a legal person capable of owning property, suing and being sued, and surviving changes of membership. The other is the trust, which treats a fiduciary arrangement ( 'fiduciary' means someone who is entrusted to act for another’s benefit and is bound by strict duties of loyalty and care) as the bearer of obligations and benefits that outlast any individual trustee. Between them, corporation and trust allow bodies of people to act over time, to coordinate complex activities, and to stand before the state as entities with rights and duties. Maitland’s essays locate these devices not at the periphery of English public life, but at its centre, since the Crown itself is a corporation and the public sphere is knit together by many institutions that borrow the same juridical forms. The lesson for political theory is that the state emerges from a legal ecology populated by many corporate and fiduciary actors, rather than from atomised individuals alone. This ecology is what later thinkers would describe as civil society, the field of organised life that is neither the private household nor the commanding apparatus of government. Maitland’s editorial interpreters highlight this central theme at the outset, noting that his reflections track the way the character of the state has been shaped by the non political associations that exist alongside it.
Maitland’s engagement with Otto von Gierke helped him to crystallise this idea. Gierke had argued that associations possess a reality that the law could acknowledge as personality, and that the German tradition had treated groups as organisms with their own will. Maitland translated and introduced Gierke to an English audience and then pressed the insights into an English legal form. The question was not whether groups were truly organisms. It was whether English law had already built technologies of personality that gave groups a durable presence. The answer was affirmative. English law had produced the corporation sole to sustain offices like the bishopric or the Crown, the corporation aggregate to sustain cities, guilds and universities, and the trust to sustain endowed purposes across time. Maitland’s editors open their introduction by linking his legal history to enduring problems of political thought, including the question of what the state is and how it relates to other human associations.
The corporation sole is a revealing device. It turns an office into a person for legal purposes. The office is not dissolved by the death or removal of the current holder. The property and liabilities persist, since the office itself is the continuing subject. Maitland treats this device as a solution to the fragility of personal rule. It permits continuity and accountability within public institutions by detaching ownership and obligation from individual officeholders. The Crown as corporation exhibits the same feature on a grand scale. The monarch dies, the Crown does not. The laws and obligations of the realm endure, not because a human body survives, but because a juridical person does. Once that logic is grasped, it becomes possible to see how lesser bodies can also be granted enduring personhood. Boroughs, parishes, guilds and colleges acquire a similar capacity to hold property and to act, which means they can coordinate collective life beyond the lifespan or temperament of any one member. The Crown’s corporate form is thus not an anomaly. It is a paradigmatic instance of the way public power and public purpose are held in institutions. Maitland’s table of contents makes explicit that he pursues these themes across essays on the corporation sole, the Crown as corporation, and the unincorporate body, culminating in a sustained discussion of moral and legal personality and of trust and corporation.
This legal architecture has a political meaning. If a group can be recognised as a person, then the law can measure and discipline its actions in ways that protect both members and outsiders. Personality makes associations suable and responsible. It also equips them to enter contracts, to own assets, and to secure their purposes across generations. The result is a landscape of intermediate powers that can stand up to arbitrary interference by rulers and can collaborate with public authorities to provide goods and services. The modern vocabulary of civil society describes this landscape as the realm of associations, charities, unions, clubs, universities, churches and foundations. Maitland’s contribution is to show that their existence is neither accidental nor merely moral. It is a result of institutionalised devices, like corporate status and fiduciary obligation, that convert human plurality into stable projects with collective standing. The fact that English law proliferated such devices, and that it used them even to constitute the state, indicates that the state and civil society are made out of the same legal materials.The trust deserves special attention.
Maitland thought the trust to be one of the most characteristic contributions of English law to the world. A trust empowers one party to hold property for the benefit of another, under enforceable duties. The beneficiaries may be private persons, but the pattern can also be organised around public or charitable purposes. The trust thus enables a purpose to become the centre of gravity of an institution. The legal personality might be corporate or it might be a collection of trustees, but the normative spine is fiduciary obligation, policed by courts of equity. This is a powerful way to organise civil society. It creates organisations whose leaders do not own the assets they control, and whose mandate is bound to a chartered purpose. It overcomes the problem of personal appropriation and allows the accumulation of endowments that can fund education, relief, research, and cultural life. By showing how trust and corporation interact, Maitland gives an account of how English civil society acquired wealth, continuity and a disciplined sense of mission.
The unincorporated body might appear to resist this scheme. Many associations in fact operated without formal incorporation and yet exercised real influence. Maitland explored the legal awkwardness of such bodies. Without personality, the law must treat them as collections of individuals or as shifting contractual relations. The result can be uncertainty about liability and ownership. Maitland’s sensitivity here is important. Civil society often grows in forms that are not fully recognised by the law. The moral personality of a club or a congregation can be vivid to its members, while the legal personality is absent. Maitland’s essay on moral and legal personality stages this tension, not to deny the reality of collective life, but to distinguish how law must choose among competing metaphors. When lawmakers and judges decide to confer corporate status, they are not creating reality out of nothing, they are crystallising a pattern of relations into a durable legal subject. This act of crystallisation is intrinsic to the theorisation of civil society, since it explains how lived association can become a legal actor in the public realm.
The political theory that emerges from these inquiries is pluralist in structure. The state is one corporate person among others, though it is the most capacious and commanding. It is surrounded by a ring of corporations and trusts with different purposes and styles of authority. Churches retain office through the corporation sole. Universities and colleges live as corporate bodies with charters. Charities deploy trusts to carry programmes across time. Municipalities govern as corporate entities with statutory obligations. Trade unions negotiate as bodies that can sue and be sued. The democratic state then interacts with this associational field through legislation, subsidy, taxation and regulation. The vitality of democracy depends on that field, since it educates citizens in common rule, represents diverse interests, and offers sites of contestation and cooperation. Maitland’s essays do not present this as a normative manifesto, rather they show how English law has already entrenched it as a working constitution of collective life. The editors emphasise that his legal history reaches the heart of political thought when it asks what the state is and how it relates to other associations.
If the English tradition taught that personality is a legal technique rather than a metaphysical essence, then the theorisation of civil society that follows is pragmatic and institutional. To analyse civil society one asks which associations are granted personality, what obligations attach to them, how they are funded, and how they are disciplined. The answers vary across time and across domains, yet the methodology remains consistent. The jurist who thinks in Maitland’s terms treats the life of a church, a borough, or a club as a set of offices and fiduciary relationships that connect persons to purposes under rules that can be enforced. This entails a subtle conception of freedom. It is not only the freedom of isolated individuals to do as they wish. It is the freedom to form durable bodies oriented to common ends, to hold property devoted to shared projects, and to pursue those projects without arbitrary interference. It is also the freedom of others to hold those bodies to account through suits and public scrutiny. Civil society in this register is a discipline of freedom, since fiduciary and corporate forms constrain leaders and protect beneficiaries while enabling collective action.
This account continues to structure democratic political life in practical ways. Consider how modern electoral democracies rely on parties that are corporate or trust based entities, with treasurers, constitutions and compliance duties. Consider how social movements institutionalise their gains, by creating charities, foundations or community interest companies that can contract with public authorities. Consider how universities balance autonomy with accountability through charters and governing councils that carry fiduciary duties. Consider how trade unions, faith organisations and professional associations translate member voice into durable influence by holding assets and enforcing rules in corporate form. All of these practices are legible through Maitland’s lens. The vitality of democracy often turns on the health of these bodies, and on the balance between state oversight and associational freedom that allows them to flourish while meeting standards of probity and inclusion.
Maitland’s attention to the Crown as corporation has special resonance for democratic constitutionalism. If the office is the subject that endures, then the constitution can insulate public power from personal whims. The lesson carries beyond monarchy. Modern democratic executives and legislatures depend on offices that continue through electoral change, with powers, duties and liabilities that do not vanish when individuals depart. This corporate approach to public authority supports impartial administration and the rule of law. It also conditions the relation between government and civil society. When officials interact with a charity or a union they meet another office based organisation. They bargain office to office, not person to person. That formal symmetry improves transparency and reduces corruption, since contracts and policies bind institutions rather than personal networks. The corporation sole thus turns out to be a foundation for democratic impersonalism, which is essential if civil society is to meet the state on fair terms.
The concept of moral personality is also fertile for democratic theory. Maitland distinguishes moral personality, the sense that a body exists as a social fact with identity and purpose, from legal personality, the status conferred by law. Democratic politics constantly negotiates between these two. Movements that begin as moral persons seek legal recognition, and the law chooses when to grant personality and when to withhold it or channel it into trusts or contractual devices. This negotiation bears on freedom of association, on the status of indigenous and minority bodies, on the regulation of religious and political groups, and on the governance of new organisational forms in the digital economy. A Maitlandian analysis asks what organisational devices will best recognise the reality of association while protecting members and third parties. The theorisation of civil society that flows from his work is not satisfied with an abstract binary of state and market or public and private. It focuses on the institutional details that carry self government into the fabric of everyday organised life.
The trust is especially relevant for contemporary democracies because it steers leadership away from personal ownership and toward stewardship. Fiduciary duties require loyalty to the purpose and care for the beneficiaries. Courts of equity develop standards of prudence, conflict management and transparency. In democratic settings this helps to reduce the risk that wealthy founders or charismatic leaders will convert public spirited organisations into personal fiefdoms. It also supports a culture of confidence, since donors and members know that the purpose is backed by enforceable obligations. Many modern reforms of charity law, foundation law and pension governance are extensions of this fiduciary sensibility. They embody the same insight that Maitland drew out, that freedom of association acquires real content when organisations are structured as fiduciary projects accountable to law.
The corporate tradition also underwrites collective bargaining and stakeholder representation. A union that is merely a loose collection of individuals struggles to negotiate with corporate employers or with the state. A union with legal personality can sign binding agreements, hold strike funds, abide by democratic internal rules, and be held to account for breaches of peace or contract. This symmetry between corporate labour and corporate capital helps to channel conflict into legal forms. It does not guarantee harmony, but it offers institutions that can take responsibility for outcomes. Civil society gains strength when those institutions are recognised as interlocutors in public decision making. Maitland’s analysis shows why that recognition must be juridical as well as sociological, since without the legal tools of personality and fiduciary duty the interlocutors cannot hold their ground.
One might worry that corporate and fiduciary devices risk insulating organisations from democratic pressure. Maitland’s framework, properly developed, answers this worry by making accountability internal to the forms themselves. Corporate governance imposes procedures, elections, audits and reporting that allow members to supervise leaders. Fiduciary law imposes duties that can be enforced by courts at the suit of beneficiaries or regulators. These legal pathways supplement the social pressures of reputation and participation. They do not replace political oversight where public funds or public functions are involved, but they give civil society a rule bound life that interacts with the state on knowable terms. Democratic regimes often struggle with the balance between autonomy and oversight. Maitland’s approach suggests that the balance can be managed by specifying legal personalities precisely, by attaching clear duties, and by allowing a plural ecosystem of forms that fit different purposes.
The Maitlandian picture also helps to interpret the rise of large scale non governmental organisations and philanthropic foundations. These bodies hold significant resources and influence public agendas. Their legitimacy rests on more than goodwill. It rests on the architecture of trusts, charters and corporate governance that binds them to stated purposes and to legal accountability. Where that architecture is weak, democratic suspicion rises. Where it is strong, cooperation between public authorities and civil society is more compatible with fairness and scrutiny. The same applies to universities and cultural institutions that enjoy charitable status, tax privileges and public subsidies. Their corporate and fiduciary constitution is not a technicality. It is the means by which society authorises them to pursue long term goods in ways insulated from partisan flux while answerable to public norms.
Maitland’s insistence that legal history lies at the heart of political thought has a methodological message for contemporary debates. Abstract theories of civil society can drift into idealisation if not tethered to the devices by which collective life is actually organised. Conversely, doctrinal legal analysis can miss the political significance of corporate and fiduciary forms if it does not ask what vision of public life they instantiate. Maitland moves between these poles. He searches the archives to reconstruct how English law made offices, corporations and trusts, then he steps back to ask what picture of the state and its neighbours those constructions yield. The editors of his volume draw this out in their introduction, presenting the essays as answers to the question of what the state is, and by extension to what governments are supposed to do. The suggestion is that governments do not create collective life ex nihilo. They inherit and shape an associational order that already bears personality and purpose.
The endurance of this view is evident in contemporary constitutional practice. Freedom of association is treated as a fundamental liberty in many democracies. Courts recognise corporations and trusts as vehicles for that freedom, while insisting on safeguards to protect members, beneficiaries and the public interest. Legislatures define categories of charity and public benefit. Regulators supervise fiduciary management of pensions and endowments. Municipal and regional authorities contract with corporate bodies in education, health and social care, treating them as partners in the delivery of common goods. Political parties and campaign organisations are subject to registration, reporting and audit, as befits corporate actors in a public contest. None of these arrangements can be understood without the concept of legal personality for groups and the fiduciary disciplines that keep them worthy of trust. Maitland’s essays provide the schema that makes sense of this. The theorisation of civil society that follows from them is not confined to normative hopes about citizen virtue or spontaneous association. It is built into law, held together by forms that English jurists honed over centuries.
The intellectual tone of Maitland’s work matters as well. He is cautious about metaphysical claims concerning the reality of group minds, and patient with the craft of legal fiction. Personality is a fiction, but it is also a technique of governance that makes institutions real in the only way that matters for rights and responsibilities. This combination of restraint and institutional imagination is well suited to democratic cultures that are wary of grand proclamations and confident in the capacity of law to adjust complex relations. It leaves room for development. New organisational forms can be fitted to existing categories, or new categories can be created, so long as the basic insight is preserved that groups require personality to act and fiduciary duties to deserve trust. Civil society in this vision is a living constitution of offices and obligations through which collective freedom is exercised.
A contemporary illustration can be taken from the digital sphere. Platforms, associations of creators, open source foundations, and data trusts all seek forms that stabilise collective efforts and distribute responsibility. The search for adequate governance often returns to corporate charters, to steering committees with fiduciary duties, and to legal devices that protect beneficiaries and third parties. Democratic states that wish to collaborate with or regulate these entities must first ensure that they are persons in the legal sense, which is to say, that they can be bound by law and can bear duties as well as rights. The headlines may focus on innovation or disruption. Maitland’s lesson is that the real constitutional work is being done when law turns these bodies into accountable persons, or when it refuses to do so and leaves them in ambiguous unincorporated forms. The health of civil society in a digital age will depend on our success in getting these forms right.
The emphasis on offices also illuminates how civil society reproduces leadership without personal domination. Office confers authority and responsibility, but it also limits both by subjecting the officer to rules and successors. Clubs elect officers, charities appoint trustees, universities name deans and registrars, unions choose stewards. The persons who occupy these roles are empowered and constrained by the offices that predate and outlast them. Democratic culture is strengthened when citizens encounter authority in this impersonal form, since it habituates them to the idea that power belongs to positions and purposes rather than to private will. Maitland’s analysis of the corporation sole translates into a general lesson about impersonal rule that reaches from the Crown to the smallest association.
It is sometimes said that civil society is a sphere of spontaneity, while the state is a sphere of coercion. Maitland’s work helps to correct this picture. Civil society in the English tradition is deeply juristic. Its vitality comes from the way law gives shape to association and subjects it to norms. That formality does not extinguish spontaneity. It gives it a frame within which cooperative projects can endure and scale. From this, a modern theorisation follows. A democracy that wants a resilient civil society should attend to the legal devices that make association possible and responsible. It should guard freedom of incorporation and fiduciary governance. It should refine the channels by which unincorporated moral persons can seek recognition. It should treat the public authority as one corporate person among others, tasked with maintaining the conditions under which many persons can pursue many purposes without domination.
The front matter of Maitland’s State, Trust and Corporation signals the stakes of this inquiry. It presents the essays as classics of political theory as well as of legal history, and it records the editors’ intention to make them accessible to readers concerned with the idea of the state. The table of contents maps the legal terrain that supports the theoretical claims. The introduction situates Maitland’s lifelong interest in the workings of English law and connects it to the question of the state’s nature and its neighbours. These signposts confirm the claim that from this legal analysis a notion of civil society can be theorised that still holds as a key part of democratic political structure. The continuing relevance of Maitland’s approach lies in techniques. Corporate personality, fiduciary duty, the office as a continuing subject, the careful recognition of unincorporated bodies, the distinction between moral and legal personality, all of these techniques compose the constitutional grammar of civil society. They let free persons build durable institutions for common purposes. They give the state a set of interlocutors worthy of respect. They give democracy the social architecture within which disagreement can be organised and freedom exercised with responsibility.
The endurance of this grammar is visible in every domain where democratic life unfolds. It is in the charity with audited accounts and a board under fiduciary duties. It is in the union that negotiates as a legal subject and can be held to promises. It is in the university governed by statutes and councils that bind leaders to public purposes. It is in the city as a corporation that can manage property and provide services across generations. It is in the political party that registers, reports and submits to rules about finance and internal elections. It is in the new data trust that holds information for the benefit of a community under enforceable duties. None of these actors is the state, yet each is public in a meaningful sense, since each stands before law as a person with obligations to others. The combined effect is to thicken the space between individual and government with institutions that can represent, contest, collaborate and learn.
When one reads Maitland with this in mind, civil society appears not as a loose metaphor but as a precise institutional field. It is composed of corporate bodies and trusts, of offices and fiduciary relations, of moral persons seeking legal recognition and of legal persons disciplining themselves to moral purposes. The democratic state thrives when this field is strong and law like. It falters when associations are either crushed by overbearing rule or left in legally amorphous forms that cannot be held to account or trusted with resources. Maitland provides the tools to keep the balance. He does so by showing that the history of English law is a record of how people have learned to give their common projects a personhood that carries rights and responsibilities. From this record, a modern theorisation of civil society follows and continues to guide the practice of democratic politics.
Maitland’s essays were written in the first years of the twentieth century. David Runciman and Magnus Ryan emphasises both their historical depth and their contemporary salience. They remain among the most important modern writings in English on the idea of the state, precisely because they reveal how non political associations shape the state’s character and how the law sustains those associations as real persons in public life. The civil society that endures in democratic structures across the world bears the marks of these insights. It is built from devices that make organisations durable, responsible and oriented to purposes that citizens can share and contest. In this way, the legal history that Maitland recovered and clarified continues to do political work. It teaches how freedom becomes institutional and how democracy lives in the associations that stand alongside the state.
I write about Ernest Gellner's account of civil society, which is more abstract and less historical, here.