Frederick William Maitland, Downing Professor of the Laws of England: A Biographical SketchFisher, H. A. L. (Herbert Albert Laurens)
History
Frederick William Maitland, Downing Professor of the Laws of England: A Biographical Sketch
Fisher, H. A. L. (Herbert Albert Laurens)
Maitland, Frederic William, 1850-1906
Nor was the interest of the subject merely speculative. Maitland
was a practical lawyer with a genius for detecting the source of
bad law and bad administration in confused modes of thinking about
ultimate questions. Looking for the moment at the English law
concerning Corporations through the spectacles of a German realist,
he detected as the principal offence against jurisprudence "a certain
half-heartedness in our treatment of unincorporate groups." We were
unwilling to recognise trades-unions for example as persons, while
we made fairly adequate provision for their continuous life. The
consequence of this half-heartedness was felt in the domain of public
administration as well as in the domain of private law. Englishmen had
accepted "a bad and foreign theory, which coupling corporateness with
princely privilege refused to recognise and call forth into vigour the
bodiliness that was immanent in every township." The Americans had
been less pedantic and had permitted the New England town to develop
its inherent corporateness. We, on the contrary, influenced by the
Concession theory of the Corporation, had shrunk from declaring the
village to be a legal person, the subject of rights and the object
of gifts. The consequences of this fatal blunder were not measurable
merely in terms of administrative symmetry; but so measured they were
very great. No one knew better than Maitland the "appalling mess"
of English local government. He had described its broader features
in _Justice and Police_; he analysed certain underlying sources of
confusion in _Township and Borough_. In his Introduction to Gierke's
_Political Theories of the Middle Ages_ he was disposed to ascribe no
small part of this confusion to the timidity "tardily redressed by
the invention of Parish Councils" which had stood between the English
village and legal personality.
Public-domain text, read in full here on John Shaqi.
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