CHAPTER IX. ROMAN LAW AND LEGAL PERSONALITY

We have now to consider what morals, if any, can be drawn from the foregoing pages, what ammunition they can fairly supply to the embattled jurists of the present day.

Controversy has long raged, on the Continent, about the nature of Legal Personality.

 207 declared that Parliament had created a corporate body which was not a corporation,¹ and must have intended that it should be suable in its registered name and liable for the torts of its agents. This may not imply any definite theory, but is at any rate inconsistent with the doctrine that only individuals and corporations can own or be sued.

Lastly, the case of Daimler Company, Limited v. Conti­nental Tyre and Rubber Company {Great Britain), Limited^ produced several interesting opinions on the character of a corporation. Confronted by a company registered and incorporated in England but with 24,999 of its 25,000 shares held by Germans, Lord Halsbury said/surprisingly,5 a corporation ‘is, in fact, a partnership in all that con­stitutes a partnership except the names, and in some respects the position of those who (sic) I shall call the managing partners’. Lord Atkinson, on the other hand, said:⁶ ‘I do not think that the legal entity, the company, can be so completely identified with its shareholders, or the majority of them, as to make their nationality its

2o8 nationality or their status its status, or it an alien enemy because they are alien enemies, or to give it an enemy character because they have that character.’ Lords Shaw of Dunfermline and Parmoor held that the company, being registered in England and carrying on business in England, was not an enemy company or a company of an enemy character. But all agreed that the company’s secretary had no authority to sue, and dismissed the appeal on that ground, leaving all larger questions open.

The Fiction Theory is commonly regarded as orthodox in England and has received more lip-service than any other from English judges and writers. Those who dislike the theory may hope that the tradition of its orthodoxy has received a death-blow from Sir Frederick Pollock’s essay ‘ Has the Common Law received the Fiction Theory of Corporations?’¹ but it is certainly not dead yet. It is also commonly supposed that the Fiction Theory was held by the Romans. This was most strongly maintained by

¹ Written for the Festschrift offered to Professor Gierke for his seventieth birthday (Weimar, 1911)"· reprinted 27 LQ.R.. 1911, p. 219, and in Essays in the Law, 1922, p. 151. The reader is referred to this essay for the earlier English law and especially for the case of Sutton's Hospital, 10 Rep. 23a, and Coke’s statement that ‘a corporation aggregate of many is invisible, immortal, and rests only in intendment and consideration of the law*.

 209 Gierke. He was for pinning the Roman jurists to Savig- nianism¹—whether rightly or wrongly we shall discuss later—and so obtaining an artistic contrast between the fictitious Roman universitas and the real German Genossen­schaft or fellowship.

The best known English accounts of the Fiction Theory are those of Maitland, a Realist, and Salmond, a staunch adherent of Savigny.

Maitland says:² ‘Besides men or “natural persons”, the law knows as “subjects” of proprietary rights certain fictitious, artificial or juristic persons, and as one species of this class it knows the corporation. We must carefully sunder this ideal person from those natural persons who are called its members. It is capable of proprietary rights; but it is incapable of knowing, intending, willing, acting. The relation between it and the corporators may best be compared to that betweenand tutor, or that between a lunatic and the committee of his estate. By the action of its guardians it can acquire property, and, if it is to take the advantage of contracts, it must take the burden also. To allow it possession is difficult, for possession is matter of fact; still after hesitation the Roman lawyers made this concession. An action based upon unjust enrichment may lie against it; but it must not be charged with delict. To attempt to punish it is both absurd and unjust, though the State may dissolve a noxious group in an administrative way. Being but a fiction of the law, its personality must

¹               The phrase is Maitland’s, Political Theories, p. xxvi.

²               Political Theories, p.

210 have its commencement in some authoritative act, some declaration of the State’s will.’ This ‘Concession Theory’ follows logically from the Fiction Theory, though historic­ally it is much older. ‘ Finally, it may continue to exist though it no longer has even one member.’

Salmond says:¹ ‘A legal person is any subject-matter to which the law attributes a merely legal or fictitious personality.... The law, in creating legal persons, always does so by personifying some real thing. Such a person has to this extent a real existence, and it is his personality alone that is fictitious. ’ Again :² ‘ Every corporation involves in the first place some real person or persons whose interests are fictitiously attributed to it, and in the second place some real person or persons whose acts are fictitiously imputed to it. A corporation, having neither soul nor body, cannot act save through the agency of some representative in the world of real men. For the same reason it can have no interests, and therefore no rights, save those which are attributed to it as a trustee for or otherwise on behalf of actual human beings. Whatever a company is reputed to do in law is done in fact by the directors or the shareholders as its agents and representatives. Whatever interests, rights, or property it possesses in law are in fact those of its shareholders, and are held by it for their benefit. Every legal person, therefore, has corresponding to it in the world of natural persons certain agents or representatives by whom it acts, and certain beneficiaries on whose behalf it exists and fulfils its functions. Its representatives may or may not be different persons from its beneficiaries, for these two capacities may or may not be united in the same indi­viduals. The shareholders of a company are not merely the persons for whose benefit it exists; they are also those by whom it acts.

‘The representatives and beneficiaries of a corporation ¹ Jurisprudence, 8th ed. 1930, p. 336.                                                           ² Pp. 343 ff.

 211 must not be confounded with its members. These last are, as we have seen, the individuals who form the group or series personified by the law, and who so constitute the corpus or body of the fictitious person thus created.... A man’s privileges and responsibilities in respect of a cor­poration depend on whether he is one of its representatives or beneficiaries, not on whether he is formally accounted by the law as one of its members....

‘ When a natural person acts by an agent, the authority of the agent is conferred, and its limits are determined, by the will and consent of the principal. In general only those acts of the agent are imputed by the law to the principal, which are within the limits of the agent’s authority as thus created and circumscribed. But in the case of a corporation it is necessarily otherwise. A legal person is as incapable of conferring authority upon an agent to act on its behalf, as of doing the act in propria persona. The authority of the agents and representatives of a corporation is therefore conferred, limited, and deter­mined, not by the consent of the principal, but by the law itself.’

This doctrine is rational, coherent, and for the most part clear. It is perhaps unfortunate, though traditional, to use the word ‘agent’ of a person authorised by the law to act on behalf of a fictitious Person: since the corporation does not, cannot, appoint its agents, the ordinary principles of agency can only apply in a modified form.¹ And it is not easy to see exactly what the fiction is. The ‘subject­matter’ personified is admittedly real; ‘it is his personality alone that is fictitious’. But ‘so far as legal theory is concerned,² a person is any being whom the law regards

¹         E.g. ‘no one can appoint an agent who is not otherwise capable of entering into contracts’, Anson’s Law of Contract, 16th ed. 1923, p. 404 (changed in 17th ed.). ‘It seems to be generally admitted, that the creation of the relationship of principal and agent must now always, by English Law, be referred to an agreement between the parties’, Jenks, Digest of English ■ Civil Law, 2nd ed. 1921, vol. 1, p. 52 note.

’ Salmond, op. cit. p. 329.

212 as capable of rights or duties’, and it is an indisputable fact that the law so regards corporations. What is really meant by saying that the personality of a corporation is fictitious seems to be this: to a Fictionist, a corporation is, as Maitland puts it, incapable of knowing, intending, willing, acting; but the law feigns it to be capable, treats it as if it was capable, of doing all these things.

Perhaps the most evidently fictitious Persons to be met with in English law reports are the Hindu idols whose affairs sometimes come before the Privy Council. They are ‘juristic entities’, with the power of suing and being sued; that is to say they are juristic Persons. But when Lord Shaw of Dunfermline talks¹ of an idol’s will and interests—‘the will of the idol itself...must be given effect to’, ‘the idol is not otherwise represented in the proceedings, though the result might conceivably vitally affect its interests ’—and is of opinion that the idol should appear by a disinterested next friend appointed by the court, it is hard to doubt that there is fiction in the air. Lord Shaw did not believe that the idol could express its will, or had any will to express; therefore the law or the court must appoint someone whose declaration of the idol’s will should be deemed to be the idol’s own declara­tion.

How far corporations resemble idols, and how far they resemble natural men, is a large question into which we cannot go deeply. Certainly ordinary people habitually think and talk of corporations as taking decisions and appointing agents. Such language could be found in every volume of the Law Reports. It may be loose language, but it shows at least that our judges are not altogether permeated by the Fiction Theory. Our readiness to hold corporations liable for torts would shock Savigny,² but seems to follow logically from our law, itself anomalous,

¹ Pramatha Nath Mullick v. Pradyumna Kumar Mullick, (1925) L.R. 5 2 Ind. App. 245. See Duff, ‘The Personality of an Idol’, in the Cambridge Law Journal, p. 42.              ² System, vol. 11, pp. 317-23.

 213 of master and servant—provided that not only the secretary and subordinate officials but also the directors and even the shareholders assembled at a general meeting are re­garded as servants of the corporation. Criminal liability, now clearly recognised, is less easily defended. The doctrine of respondeat superior is alien to our criminal law, and its introduction by modern statutes must be regarded by orthodox Fictionists as a blot on our legal system, a blunder of our ignorant but omnipotent Parliament.

It is unlikely that English lawyers will ever be true Savignians—the doctrines of that faith are too remote from ordinary thought and speech for so practical a class. But it can hardly be denied that there is something fictitious about a modern limited liability company. The Realists’ Genossenschaft or Fellowship is a group or ‘body’, whose ‘members’ meet together and reach decisions which are then regarded as the decision of the ‘group-will’. But the original members of a company, the signatories of its memorandum and articles of association, may be seven clerks who in fact never have any voice in the company’s councils. Even when the company is fully fledged, it is hard to see a ‘real Person’ in a list of many thousand shareholders, only a handful of whom ever come to a meeting—to say nothing of such complications as shares without voting rights. Here it seems much more reason­able to say with Savigny that the acts of the company’s lawful representatives, done in the manner prescribed by law, are imputed to the company, just as the acts of an idol’s guardian are imputed to the idol, than to maintain that the shareholders scattered over the face of the earth compose a living organism and that the resolutions passed in their name express a group-will.¹

An interesting problem is presented by the ‘one-man company’, and was discussed by the Court of Appeal and the House of Lords in the case of Salomon v. Salomon

¹ I have to thank Professor A. L. Goodhart for pointing this out to me.

214 and Co? Mr Salomon sold his business to a limited company with a nominal capital of 40,000 shares of each, the company consisting only of the vendor, his wife, a daughter and four sons, who subscribed for one share each. Twenty thousand additional shares were issued to Mr Salomon, and also debentures forming a floating security. Bad times came, the company was wound up, and all its assets were claimed by Mr Salomon, as debenture­holder, leaving nothing for unsecured creditors.

Vaughan Williams, J., in the Chancery Division, said:² ‘This business was Mr Salomon’s business and no one else’s.’ Lindley, L. J., in the Court of Appeal, approving his decision, said:3 ‘It is manifest that the other members of the company have practically no interest in it, and their names have merely been used by Mr Aron Salomon to enable him to form a company, and to use its name in order to screen himself from liability.... In a strict legal sense the business may have to be regarded as the business of the company; but if any jury were asked, Whose business was it ? they would say Aron Salomon’s, and they would be right, if they meant that the beneficial interest in the business was his.... The liability does not arise simply from the fact that he holds nearly all the shares in the company. A man may do that and yet be under no such liability as Mr Aron Salomon has come under. His liability rests on the purpose for which he formed the company, on the way he formed it, and on the use which he made of it. There are many small companies which will be quite unaffected by this decision. But there may possibly be some⁴ which, like this, are mere devices to enable a man to carry on trade with limited liability, to incur debts in the name of a registered company, and to sweep off the company’s assets by means of debentures which he has caused to be issued to himself in order to defeat the claims

1       [1897] A.C. 22; reported in the Court of Appeal as Broderip v. Salomon, [1895] 2 Ch. 323.

2                                               P. 331.                                3 p. ₃₃8.              4 p. ₃₃₉.

 21$ of those who have been incautious enough to trade with the company without perceiving the trap which he has laid for them.’

This is Realist language, though not carried to its logical conclusion. An out-and-out Realist would have to say that the will of Salomon and Co. was identical with the will of Mr Aron Salomon and not a group-will at all, and that since there was no group-will there could be no corporate Person. English judges are not likely to press a theory so far, in the face of Parliament. Salomon and Co. had been incorporated with all due formalities and no court could deny that it was a corporation; but some of the judges would obviously have liked to. To ask a jury ‘whose business was it ? ’ seems to a Realist sound common sense, but to a Savignian profane folly.

The House of Lords realised the imprudence of looking into the reality or unreality of a body that complied with the Companies Act, and decided unanimously for Mr Salomon. They take their stand squarely on the Act, and show no leaning towards any theory: ‘the sole guide must be the statute itself’.¹ If Lord Halsbury pleases Fictionists by saying it is ‘essential to the artificial creation that the law should recognise only that artificial existence’,² he also criticises the Court of Appeal for not recognising that the company ‘was a real thing’,3 ‘has a real existence Like most English cases and most Roman texts, Salomon v. Salomon and Co. can be reconciled with any theory but is authority for none.

The Fiction Theory can be harmonised more or less with our law of corporations. Where it seems likely to break down or do mischief is in connection with those unincorporate bodies whose abundance in English life and history was pointed out by Maitland.5 For a Fictionist, an association is either a corporate body or a mere collection

¹ Lord Halsbury, p. 29.           ¹ P. 30.            ³ P. 33.           ⁴ P. 34.

5 Political Theories, p. xxvii. This paragraph is no more than a summary of his Trust and Corporation, § v, pp. 366-95 in Collected Papers, vol. in. 2l6 of individuals; a judge cannot see corporate rights or liabilities unless the Sovereign has ordered him to feign the existence of a Person; for quasi-corporations there can be no place. But we have seen the House of Lords talking about a corporate body which was not a corporation.¹ Parliament has said: ‘ In this Act and in every Act passed after the commencement of this Act the expression “person” shall, unless the contrary intention appears, include any body of persons corporate or unincorporate.’² If Lord Lindley’s jury was asked who owned Lincoln’s Inn Library or a club-house in Piccadilly, if a bookseller or wine-merchant was asked to whom he had given credit, they would say The Inn or The Club; and to say the owners (in equity—the legal estate will be vested in trustees) are the present individual members, and that the tradesman has no debtor at all, is introducing the kind of fiction that is dangerous because it divorces law from life.

The Realist Theory has been preached for many years now by some of the greatest English jurists,3 and judges have talked its language though without expressly naming it. The essence of the theory was most neatly and memorably summed up by Dicey.⁴ ‘When a body of twenty or two thousand or two hundred thousand men bind themselves together to act in a particular way for some common purpose, they create a body which, by no fiction of law but from the very nature of things, differs from the indi­viduals of whom it is constituted.’

Maitland says,5 epitomising Gierke: ‘Our German Fellowship is no fiction, no symbol, no piece of the State’s machinery, no collective name for individuals, but a living organism and a real person, with body and members and

¹ See p. 207, supra.

’ Interpretation Act, 1889, sec. 19; Maitland, Trust and Corporation, p. 401.

3       Besides Maitland, Pollock, and Dicey, see Geldart, Inaugural Lecture on ‘Legal Personality’, 27 L.Q.R., 1911, p. 90.

4 ‘The Combination Laws’, 17 Harvard Law Review, 1904, p. 513.

5 Political Theories, p. xrvi.

 217 a will of its own. Itself can will, itself can act; it wills and acts by the men who are its organs as a man wills and acts by brain, mouth and hand. It is not a fictitious person; it is a Gesammtperson, and its will is a Gesammtwille\ it is a group-person, and its will is a group-will.’ When Lord Shaw, in the Osborne case,¹ spoke of ‘cramping the development and energies and destroying the natural movements of the living organism ’, namely a trade union, he was not proclaiming a theory; but his mind was moving on Realist not Fictionist lines.

Maitland’s own creed, implicit in many of his essays, appears most clearly in the following paragraph from his Sidgwick Lecture on Moral Personality and Legal Per­sonality:²

‘During the nineteenth century (so I understand the case) a vast mass of experience, French, German, Belgian, Italian, and Spanish (and I might add, though the atmo­sphere is hazier, English and American), has been making for a result which might be stated in more than one way. (1) If the law allows men to form permanently organised groups, those groups will be for common opinion right- and-duty-bearing units; and if the law-giver will not openly treat them as such, he will misrepresent, or, as the French say, he will “denature” the facts: in other words, he will make a mess and call it law. (2) Group-personality is no purely legal phenomenon. The law-giver may say that it does not exist, where, as a matter of moral sentiment, it does exist. When that happens, he incurs the penalty ordained for those who ignorantly or wilfully say the thing that is not. If he wishes to smash a group, let him smash it, send the policeman, raid the rooms, impound the minute- book, fine, and imprison; but if he is going to tolerate the group, he must recognise its personality, for otherwise he will be dealing wild blows which may fall on those who

¹               Amalgamated Society of Railway Servants v. Osborne, [1910] A.C. 87, at p. 108.

¹ Delivered atNewnham College in 1903. Collected Papers, vol. m,p. 314. 2l8 stand outside the group as well as those who stand within it. (3) For the morality of common-sense the group is person, is right-and-duty-bearing unit. Let the moral philosopher explain this, let him explain it as illusion, let him explain it away; but he ought not to leave it unex­plained, nor, I think, will he be able to say that it is an illusion which is losing power, for, on the contrary, it seems to me to be persistently and progressively triumphing over certain philosophical and theological prejudices.’

This may not be the whole truth. It does not explain, for instance, the nature of a one-man company. But so far as it goes, it is unanswerable.

The Symbolist, or Collectivist, or Bracket Theory has been held unconsciously by those who knew no theories, like the early Roman and English lawyers,^[223] and consciously by those who knew too many and revolted against them, like Jhering.³ It maintains that we need not think of a corporation as a Person at all, either real or fictitious. Human beings alone can have interests and rights, and a corporation is only a labour-saving device to describe a particular kind of right. We habitually say that a corpora­tion has certain rights against A and B and that X and Y have rights against the corporation; but we could if we took the trouble analyse the corporation out of existence and describe the rights of X and Y as rights against A and B. It is over-simplifying to say that corporate owner­ship is the same as joint ownership^ a corporation the same

 219 as a partnership.¹ A plus sign is not the only symbol known to mathematics, and if a hundred men form a corporation and buy a field, they do not each own a hundredth part of it. But it is true that a right against a corporation can be described as a right that the secretary, or the treasurer, or the directors, or the shareholders, shall do something; and when a corporation is said to claim a right, it is always some representative who claims it, in the corporation’s name, i.e. on behalf of the corporation’s beneficiaries.

The strength of this theory is that it frees us from the claims of Fictionist and Realist to dictate not only the form but the substance of our law, and leaves us at liberty to expand our symbol as we may deem expedient. Its weak­ness is the inconvenience of describing the facts of cor­porate activity without using the corporation symbol? A recent courageous effort to supply a more exact termi- nology3 has proved too difficult for most readers to grasp, and judges will never have time to evaluate accurately a symbol whose legal complexity is great, and whose economic and psychological elements cannot safely be ignored. The construction of corporate rights and liabilities has been one of the great achievements of jurisprudence, and we are not likely to forgo so useful a device. It is certainly well entrenched in English law, and the Symbolist Theory is perhaps the only one that’ English judges have clearly and repeatedly rejected. One quotation may suffice: ‘ My Lords, this appeal may be disposed of by saying that the corporator even if he holds all the shares is not the corporation, and that neither he nor any creditor of the company has any property legal or equitable in the assets of the corporation.’*

1       Lord Halsbury in the Daimler case, quoted on p. 207, supra.

2       H. A. Smith in The Law of Associations, 1914, inclines to symbolism but

recognises that the symbol must be differently expanded in different cases: ‘To ask, What is the interest of a corporator in the corporate property? is really an idle question until we have asked, What kind of corporation are you talking about?’(pp. I47f.).              ³ Estatification, by H. C. Dowdall, K.C., 1930.

⁴ Lord Wrenbury in Mac aura v. Northern Assurance Co., [1925] A.C. 619, at p. 633.

The Purpose Theory, the doctrine of the Zweckver- mbgen, was elaborated by Brinz¹ and has been eloquently commended to English readers in a recent work by Professor Ernest Barker? We have already met it in connection with the Byzantine foundations? For Brinz, there are no Persons except individual men and women. The property supposed to be owned by juristic Persons does not belong to anybody: Gaius is strictly accurate in calling it res nullius. But it does ‘belong for’ a purpose, and that is the essential fact about it.⁴ For Barker, the purpose actually owns the property. Tt is a common and continuing purpose, continuously entertained by a con­tinuing body of persons, which owns the capacity and constitutes the legal person. The “person ” which owns the property of an Oxford or Cambridge college is neither the founder, now gone, nor the body of his living suc­cessors. It is the purpose which animated the founder and which continues (it may be, as we shall see, in a new and modified form) to animate his successors.?

There is much truth in this. Every juristic Person has a purpose or purposes, though the true purpose of some, such as a town or the State, may be open to argument. The doctrine of ultra vires rests largely, the principles of cy-pres wholly, on the idea of purpose. In an English charitable trust the trustees hold for a purpose rather than for beneficiaries, individual or corporate. When the National Trust was ‘established for the purposes of pro­moting the permanent preservation for the benefit of the nation of lands and tenements of beauty or historic in­terest’,⁶ the purpose was everything, the machinery un-

¹ Lehrbuch der Pandekten, vol. i, 3rd ed. 1884, pp. 222-38; vol. in, part II, 2nd ed. 1888, pp. 453—586.

¹ Gierke, Natural Law and the Theory of Society, 1500—1800, trans­lated by Ernest Barker, 1934, vol. 1, pp. Ixxiii-lxxxvii. Professor Barker does not mention Brinz, but their essential ideas are the same.

3                                                                                               Seepp. 196,K)%,supra. ⁴ O^.zzZ. vol. i,p. 230.                                                                        5 O/>. rz'Z. pp.lxxiiif.

⁶               National Trust Act, 1907, Clause 4, sec. (1), quoted in National Trust publications.

 221 important. In the Scottish Church case¹ all agreed that the property was devoted to certain purposes, the only question being whether the purposes could be changed.

And yet the theory will never be popular with lawyers, because you cannot sue a purpose. No doubt when you sue a juristic Person you are in fact trying to deflect money from its purpose to your pocket, and to a philosopher it may seem as reasonable for a representative to appear on behalf of a purpose as on behalf of a group. But to bring an action against the Preservation of Rural England, or the Prevention of Cruelty to Children, is what no man can face with equanimity: solventur risu tabulae. The only reason why a charitable purpose can without difficulty be thought of as the beneficiary of a trust is that bene­ficiaries never have to be sued. They may have occasion to sue; but in any charitable trust it is the Attorney- General who sues on their behalf, and he can take action to enforce a purpose as easily as to protect an injured orphan.

These are all the theories we need consider, and we can now compare them with the Roman texts. But since the Fiction Theory is supposed to derive from Justinian through medieval lawyers, we must pause for a moment in the dim twilight of the thirteenth century.

According to Gierke, the Fiction Theory was adum­brated by the Romans and fully developed by Innocent IV, who became Pope in 1243: Savigny merely followed in Innocent’s well-marked footsteps. Gierke says that Innocent ‘gab der Korporationslehre in ähnlicher Weise, wie in unserem Jahrhundert Savigny, mit dessen Lehre die seine auch materiell merkwürdig übereinstimmt, eine scharf umrissene neue Gestalt’.² ‘ Und da war es Innocenz, der mit genialem Griff den im römischen Recht thatsäch- lich waltenden, doch nur halb ausgesprochenen Gedanken des rein begrifflichen und fiktiven Daseins der juristischen

1       See p. 207, supra.

2       O. Gierke, Das deutsche Genossenschaftsrecht, vol. in, 1881, p. 246.

Person gewissermassen neu entdeckte, ihn in schärfster Formulirung vor Aller Augen stellte und so zum Vater des heute noch herrschenden Dogmas wurde.’¹

Gierke was a great man, and probably knew more about medieval lawyers than anyone before or after him; but even great men sometimes exaggerate, and it seems that Gierke exaggerates the precision of Innocent’s theories and the resemblance between Innocent and Savigny.

It may be granted that the Fiction Theory takes its name from words of Innocent: 'cum collegium in causa universitatis fingatur una -persona'.² This could no doubt mean ‘is a Fictitious Person’, in Savigny’s sense; but it can equally well mean ‘is treated as an individual, as one person not as a number of persons’; and in fact Gierke lays little stress on the phrase. He relies mainly on three sayings, which we will quote with Gierke’s own comments. 3 ‘In solchem Zusammenhänge’ (chiefly questions of ex­communication) ‘nun stellte zuerst Innocenz den Satz auf, dass die Korporation als solche ein unleibliches Begriffswesen sei. Als blosser Rechtsbegriff, der sich mit dem Begriff der verbundenen Personen nicht decke, könne sie nicht exkommunicirt werden (quia universitas, sicut est capitulum, populus, gens et hujusmodi, nomina sunt juris et non personarum, ideo non cadit in eam excommuni­catio); als unleibliches Wesen sei sie willensunfähig (uni­versitas... consensum alicujus facti praestare non potest, cum consensus corporis est nec corpus habet); als rein intellektuelles und unkörperliches Ding könne sie nicht selbst, sondern nur durch ihre Glieder handeln (quia capitulum, quod est nomen intellectuale et res incorporalis, nihil facere potest, nisi per membra sua).’

This suggests to one reader at least the combination of confused theory with practical common-sense rules cha­racteristic of English judges, rather than the clear-cut

¹               O. Gierke, Das deutsche Genossenschaftsrecht, vol. in, 1881, pp. 279f.

²Quoted ibid. p. 279, n. 102.

³Ibid. p. 281.

 223 logic of German professors. Coke’s famous phrase ‘rests only in intendment and consideration of the law’¹ might be a translation of 'nomina sunt turis’. Saying that a universitas is not a -persona might mean many things; the relevant meaning here is that it has no soul; and souls have never been attributed to corporations either by Realists as a fact or by Savignians as a fiction. 'Consensus corporis est' is a strange statement, since consensus is obviously animi. It is more English than logical to say a corporation has no body (corpus) and yet to talk of its limbs (membra). A Realist would agree that a group, like a man, can only act by means of members, limbs, organs: a logical Fictionist must replace membra by some word meaning representatives, actores.) syndici or the like. These passages do not show Innocent to be a Savignian; they suggest, on the con­trary, that he was a practical man not enslaved by any theory.

This is substantially the view taken by Mr (now Pro­fessor) H. A. Smith in an Appendix to his valuable work on the Law of Associations? He quotes several passages of Innocent, and first the decretal for whose justification Gierke3 says the Fiction Theory was developed, although he recognises that the rule laid down is ‘im Gesetzestext freilich anders motivirt’. On this law Professor Smith observes: ‘ The Pope does not declare the punishment of corporations to be impossible, nor does he forbid all kinds of punishment. What he does say is that universitates are no longer to be excommunicated... not because they are legal fictions, but because such a sentence would involve the innocent along with the guilty.’ In any case, only baptised persons could be excommunicated; therefore, since no corporation has ever been baptised, excommunica­tion universitatis could only mean excommunication singu­lorum. By other quotations he shows that, in Innocent’s

¹ See p. 208, n. 1, supra.

’ The Law of Associations,Corporate and Unincorporate, 1914, pp. 152-7. 3 Op. cit. p. 280.

eyes, though a universitas cannot commit dolusf or be put to death² or banished, yet it can be fined, or placed under an interdict, or dissolved, if the directors of the corporation, rectores universitatis, commit a crime by order of the cor­poration or with its subsequent approval. Some indeed say, et forte non male., that even if (or although—et st) a universitas can be sued civilly for rapina, damnum iniuria datum, iniuria, et alia huiusmodif> still no criminal action can be brought against it.

All modern schools would agree that a corporation cannot sin or be excommunicated, ut universitas, and that it cannot be directly guilty of physical injury. But a man who would punish a corporation for a wrong done de mandato universitatis totius⁶· is still a long way from Savigny’s indivisible -persona ficta, which can give no mandates and be guilty of no wrong.

If we have not found the Fiction Theory in the writings of Innocent, we shall hardly expect to find it in the Digest; but we must consider why it has so often been attributed, at least in an embryonic form, to Justinian and Ulpian.

The main reason is without doubt the 'existence of phrases like ‘hereditaspersonae vice fungitur'5 and especially of the often quoted D. 46. 1. 22: *hereditas personae vice fungitur, sicuti municipium et decuria et societas’. This is

¹ This merely generalises Ulpian’s ^l^id enim municipes dolo facere possunt?' D. 4. 3. 15. 1. See pp. 92 f., supra.

¹ Compare the question asked in the Qtpo Warranto case of 1682, what judgment should be given against the City of London for corporate treason. ‘It shall be, that “Suspendatur. per collum corpus politicum”. And then, what execution shall be done upon that sentence? What? must they hang up the common seal?’ See Pollock, Essays in the Law, p. 17'?; 8 State Trials 1138.

3       Maitland goes further than Gierke when he says Innocent ‘proclaimed that the corporation could commit neither sin nor delict’, though ‘he could not convince his fellow lawyers that corporations must never be charged with crime or tort’. Political Theories, p. xix.

4^lvel tantae partis, quod invitis aliis maleficiutn fecerintl I suppose

this means ‘or of so great a majority that they committed the crime despite the objections of the minority’, quod replacing the classical ut where French would have ‘que’.            ⁵ See pp. 19 f., supra.

 22J the only evidence given by Savigny himself in the passage where he calls Roman juristic Persons ‘fingirte Personen’. It is the conclusion of §85, ‘Juristische Personen— Begriff’,¹ and is worth quoting in full.

‘Die Römer selbst haben keinen gemeinschaftlichen Namen für alle Fälle dieser Art. Wo sie diesen Character solcher Subjecte allgemein ausdrücken wollen, sagen sie nur, dass dieselben die Stelle von Personen vertreten, welches soviel sagen will, als dass sie fingirte Personen seyen.’ To this is appended a note: ‘ L. 22 de fidejuss. (46. 1): “hereditas^erw«^vice fungitur,sicutimunicipium et decuria et societas”. Gerade so heisst es von dem bonorum possessor: vice heredis, oder loco heredis est. L. 2 de B.P. (37.1), L. 117 de R.J. (50.17), Ulpian. xxviii. 12: “heredis loco constituuntur...heredes esse fingun­tur”. Wie der bonorum possessor ein fingirter heres ist, so ist die juristische Person eine fingirte persona.’

This is all literally true, but suggests what is false. In the first place, D. 46. 1. 22 appears to be quoted as a typical passage, whereas it is unique. Nowhere else is any such language used of any juristic Person. A hereditas iacens is said, about half-a-dozen times, -personae vice fungi, personae vicem sustinere·, but we have seen that a hereditas iacens was not a Person.²

Again, it is suggested that Florentinus, the author of 46. 1. 22,3 meant the same by persona as Savigny and his readers by Person, that is to say a Rechtssubject,⁴ Träger oder Subject eines Rechtsverhältnisses.5 If Florentinus had said that a municipium was regarded by means of a fiction as capable of owning or suing, Savigny could colourably have claimed his support. What he does say is that a municipium is in some ways treated like a human being by the law. That was by his day an obvious fact, and Florentinus’, or Tribonian’s, way of putting it is

¹ System, vol. 11, p. 241.                       ³ See chapter vu, supra.

color=black face="Times New Roman">3       The argument is not affected if the text is interpolated; see p. 166, supra.

4                                                                         System, vol. 11, p. 2.  ⁵ Ibid. vol. 11, p. 1.

226 perfectly colourless, showing no leaning, even unconscious, to any theory. A town could own, like a man, and sue, like a man, and to own and sue is, to that extent, personae vice fungi.

Even if the Romans had anticipated Innocent by saying municipium persona esse fingitur, as they say bonorum posses­sors heredes esse finguntur, the implication would be quite different from Savigny’s. For Savigny, human beings, all human beings, and only human beings, are originally, naturally, Persons, Subjects of Rights, because all law exists for the sake of human beings and their freedom.¹ Positive law, ancient and modern, ascribes an unnatural, fictitious Personality to juristic Persons, just as ancient law deprived slaves of their intrinsically real, natural, Personality. Thus to justify Savigny’s theory, fingitur esse persona would have to mean ‘is a Person in positive law, though not by nature’. But Savigny well knew that heredes esse jinguntur meant ‘ are treated as heirs at prae­torian law, though not at civil law’; and this destroys his parallel.

It is possible, though not likely—there is no evidence one way or the other—that juristic Persons were first allowed to sue at Rome by means of praetorian actiones ficticiae, like bonorum possessores. Gierke rightly insists² on the individualistic character of Roman private law. As Maitland puts it: ‘Titius and the State, these the Roman lawyers understood, and out of them and a little fiction the legal universe could be constructed.’ The legis actiones were certainly designed for litigation between individual citizens, and so were the original formulae of the formulary system; and when a corporation was first allowed to sue in its own name, a fiction may have been employed. Not necessarily: the praetor may have given it a direct action in ius from the first: siparet Numerium municipia (or more

¹ System, vol. n, p. 2, quoting D. 1. 5. 2: ‘cum igitur hominum causa omne ius constitutum sit'.

³ Genossenschaftsrecht, vol. in, pp. 36-42.

 227 probably municipibus) dare oportere; or an action in factum·, si paret municipes deposuisse. But nobody can deny that the formula may have been something like: si municipes civis Romanus essent, tum si eis Numerium dare oporteret. If it was, then juristic Persons did in a sense enter the courts by means of a fiction. But that does not mean that they were considered in any way unreal. The bonorum possessor and the bonitary owner certainly owed their recognition to such fictions,^[CCXXIV] and there is nothing unreal about them.

The Fictionist Theory is less obviously but more genuinely supported by D. 4. 3. 15. 1:² * Sedan in municipes de dolo detur actio, dubitatur. Et puto ex suo quidem dolo non posse dari; quid enim municipes dolo facere possunt? sed si quid ad eos pervenit ex dolo eorum, qui res eorum admini­strant, puto dandam. De dolo autem decurionum in ipsos decuriones dabitur de dolo actio.' Here Ulpian clearly expresses the view that a corporation cannot itself be guilty of dolus. That is an essential doctrine of the Fiction Theory. The corporation itself cannot think or will, and it follows that it cannot do wrong, though if the wrong­doing of others brings profit to its funds, that profit can be reclaimed by the injured party. On the Realist Theory, nothing is simpler than for a corporation to be guilty of dolus. ‘Itself can will, itself can act.’ If indeed a body of directors issues a fraudulent prospectus, or an officer of a company publishes a malicious libel,3 it may be argued that they exceeded their powers, so that the act was theirs and not the corporation’s own. In practice, the commission of delicts by corporations ‘themselves’ may be extremely rare.⁴ But in principle, if a corporation has a group-will, and there is some body whose acts or decisions are the acts and decisions of the corporation itself, then they will none the less be its acts and decisions if they amount to torts or crimes: in municipes de dolo suo danda est actio. The 228 Symbolist Theory gives a result between the other two. If municipes means ‘all the citizens’, then a corporation is guilty of dolus if all its members are parties to the fraud, or perhaps a majority may suffice. Thus a small corporate group can easily commit a delict; for the majority of a town to unite in one is conceivable, though very unlikely; for all the citizens to do so is impossible, because some of them will always be infants, even if we ignore those members of the corporation who are dead or not yet born.

From this comparison of theories it follows that if Ulpian was fully aware of what was logically implied by saying that an action could not be brought against a cor­poration on account of its own dolus; if he must be regarded as pronouncing in favour of one theory or other; then he must be adjudged a Fictionist. Savigny was fully entitled, in an age when every word of the Digest, and every doctrine deducible therefrom, had the binding authority of a Statute, to claim Ulpian as authority for the Fiction Theory.

Now times have altered, thanks in great part to Savigny himself. We no longer approach the Digest analytically, seeking in it a complete and coherent system of law, every paragraph coeval and coeternal. Our approach now is historical; we try to find out what lawyers thought in the second and third centuries, undeterred by the know­ledge that texts which the long labour of glossators had reconciled will, studied historically, contradict each other more sharply than ever. And we need not hesitate to say that a statement in the Digest is unauthoritative, even if by undermining its authority we leave a gap in the law.

The authority of our text as a declaration of Savignianism is undermined by three facts. One is the scantiness of other evidence that any Roman ever conceived any theory of the kind. The second is the hesitation with which Ulpian speaks. 'Dubitatur...puto posse...quid enim pos­sum?' This is not the language of a man expounding

 229 an already settled principle; it might be the language of one settling an old dispute; but it sounds most as if the question was a new one and the answer, like all the answers ever given by English judges to similar questions, tentative and provisional. Thus it need not commit Ulpian, any more than the common law is committed, to any theory of juristic Personality. The third argument for this view is to be found in D. 4. 2. 9. 1: ‘ sive singularis sit persona, quae metum intulit, vel populus vel curia vel collegium vel corpus’.¹ Savigny himself points out³ that this is from the same book of Ulpian 3 as D. 4. 3. 15; and he does not attempt to explain how a fictitious collegium or corpus could intimidate anyone. This text is in fact as clearly opposed to the Fiction Theory as the dolus text is to the Realist Theory. If a collegium can commit metus, there is no reason why a municipium should not commit dolus, and these two texts are enough to prove that Ulpian was neither a Fictionist nor a Realist.

Another text which, as paraphrased by Savigny,⁴ sup­ports him strongly is Ulp. 22. 5: 'Nec municipia nec municipes heredes institui possunt, quoniam incertum corpus est, ufi neque cernere univer si, neque pro herede ger ere possint,5 ut heredes fiant.' ‘ Sollte eine Stadtgemeinde eine hereditas erwerben, so müsste das entweder durch Vertretung geschehen, oder durch eigene Handlung; Vertretung aber ist bey dem Erwerb einer hereditas überhaupt nicht zulässig, selbst nicht durch einen Tutor; eigenes Handeln aber ist für eine Stadt unmöglich, weil sie überhaupt nur eine fingirte oder ideale Existenz hat, also nicht die natür­liche Handlungsfähigkeit eines Menschen (quoniam in­certum corpus est), so dass die zum Erwerb der hereditas nöthigen Handlungen (cernere oder gerere) von ihr als einer solchen idealen Einheit (universi) nicht vollbracht werden können.’ Unfortunately, all that supports Savigny

¹ See pp. gif., supra.                   ² System, vol. 11, p. 320.

³ Ad ed. xi.                                 * System, vol. n, p. 301, note (b).

5       ut.. .possunt MS., et.. .possunt Huschke, Krüger, Schulz.

2ßO here is of his own devising. Incertus does not mean ‘fictitious or ideal’, and it has been maintained above¹ that neque cernere universi...fiant is no profession of Fic- tionism but a lapse into a crude form of Symbolism. All the municipes must accept, by word or act, and even if they were all collected together, which might not be as easy as Savigny thinks, some would be too young to say or do anything.

Very similar is D. 41. 2. 1. 22 (Paul): 'Municipes per se nihil possidere possunt, quia universi consentire non possunt.' ‘Die letzten Worte wollen nicht sagen, es sey gar zu schwierig, sie Alle zu diesem Zweck zusammen zu bringen, was doch gewiss nicht mit der Unmöglichkeit einerley ist; sondern selbst wenn alle Einzelne consentirten, so wäre es doch nicht die Corporation selbst, als ideale Einheit (universi), welche wollte, also fände sich nicht der ganz unentbehrliche animus possidendi in der Person des wahren Besitzers.’² The Latin words could mean that, and if they did they would be a strong expression of Fictionism. But to make universi consentire non possunt equivalent to universitas consentire non potest, and to say that a corporation cannot (ever) consent (to anything), is carrying Savignian dogma to its ultimate logical conclusion in the face of common speech and common sense. Such a course is as foreign to Roman habits as it is to English. Paul merely means that all the municipes cannot consent, just as they cannot all cernere or pro herede gerere.

Similar again, except that universi is omitted, is D. 38. 3. 1. 1 (Ulpian): ‘ Sed an (municipes') omninopetere bonorum possessionem possint, dubitatur: movet enim, quod consentire non possunt.' But this adds nothing to the texts already discussed, and Savigny3 lays no stress on it.

Gierke adduces no Roman text in support of his state­ment that ‘so wurde schliesslich die römische Jurisprudenz unabweislich zu der Annahme gedrängt, dass die Persön-

¹                   Pp. 86-8, supra.                         ² System, vol. 11, p. 291.

3 Ibid. vol. 11, p. 303.

 23I lichkeit der Universitas eine Fiktion sei’,¹ but quotes an interesting text on an earlier page,² namely D. 4. 6. 22. 2 (Paul): ‘ Quod edictum etiam adfuriosos et infantes et civitates pertinere Labeo ait' This is obviously attractive to anyone looking for Fictionism, since the resemblance of Savigny’s juristic Persons to lunatics and infants is a commonplace. But the edict in question is that promising restitutio in integrum to one who absent non defenderetur. The only relevant resemblance of lunatics, infants and towns is that they are always ‘absent’ in the sense that they cannot defend themselves but must appear by a representative; and that is clearly true, on any theory. The puzzling texts giving restitutio to a town minorum iuref> ut pupillamf probably refer to this edict. There can be no parallel to the ordinary restitutio minorum; one can hardly suppose an actor civitatis would be allowed to come into court and plead that his town had acted with inconsulta facilitas.

There are several passages where actores civitatium appear side by side with tutors,5 but there is generally a cognitor or procurator to keep them company, those being the chief types of legal representative. In general, the rules are the same for all; in one case, that of enrichment through the representative’s fraud, Ulpian, after saying a town can only become liable through the fraud of its representatives,⁶ imposes on it the liability of an ordinary principal benefiting ex dolo procuratorisf not, as a Fictionist would expect, that of ^.pupillus enriched ex dolo tutor is?

Such is the case for Roman Fictionism. What is there to be said against it? First, that corporations are said to do things, such as appoint an agent? and manumit a slave,¹⁰ which a mere Fiction could not do. This is a fair

¹ Genossenschaftsrecht, vol. m, p. 103.                  ² P. 99.

³ C. 2. 53. 4.                      ⁴ C. 11. 30. 3. Compare D. 49. 1. 9.

5       Such as D. 44. 2. 11. 7; D. 46. 8. 9; D. 12. 2. 34. 1, 2, 3; D. 42. I. 4. pr., 1, 2,

6D. 4. 3. 15. 1. See pp. 92, 227, supra.

7H. 1. 2.                            ⁸ H. 1. pr. See p. 93, supra.

9 D. 3. 4. 2.                       ¹⁰ D. 38. 16. 3. 6.

2ß2 argument against a Fictionist who insists on deducing from the texts all their logical implications, but not astrong one. Nothing is easier than to slip into popular language not strictly compatible with theory. Even Savigny himself says:¹ ‘Diesen muss sich die juristische Person unter­werfen, wenn sie überhaupt an den Vortheilen des Prozess­ganges Theil nehmen will’, as if a Fiction could submit and desire or intend.

Secondly, in a passage Savigny quotes³ without dis­cussing its implications, the Digest asserts that a town can take an oath by the mouth of its representatives, without any hint of a fiction^ 'Paulus libro secundo ad Neratium: Municipibus, si iurassent, legatum est. Haec condicio non est impossibilis. Paulus: Quemadmodum ergo pareri potest per eos? itaque iurabunt, per quos municipii res geruntur.' The rule in itself proves nothing, since oaths could be taken by procuratores as well as by adores, but the language is significant. Neratius says the municipes can swear: a Fictionist must have said they could not themselves swear, but an actor might be allowed to swear for them. The rule could easily have been stated in neutral terms, like those of D. 50. 1. 14 (Papinian): 'Municipes intelleguntur scire, quod sciant hi, quibus summa rei publicae commissa est.'¹* People may be ‘understood’ to do either what they actually do or what they are fictitiously deemed to do. But if it is not impossible for a corporation to swear, it can only be practical difficulties, not its intrinsic nature, that makes it unable consentire and pro herede gerere.

Lastly, and most important, it is unlikely that the Romans should have worked out a theory so elaborate, so sophisticated, so remote from ordinary ideas, and left us only a few ambiguous hints that they ever thought about the matter at all.

Of Roman Realism not much need be said. It is clear ¹ System, vol. 11, p. 319.                                                        ² System, vol. 11, p. 297.

3 D. 35. i. 97.                                    ⁴ Quoted by Savigny, ibid.

 2ß3 that the Romans had no developed theory of the Gesammt- person. They do not talk of a corporation’s organs, like the Bürgerliches Gesetzbuch, or of its limbs, like Innocent; and they normally regard the acts of its officials as the acts of its agents, not of itself. But it is claimed, and reasonably, that there is nothing in the texts fundamentally opposed to Realism; a modern Realist can for the most part accept both the rules and the language of the Corpus Iuris. He ought perhaps to insist that Ulpian’s tentative statement on corporate dolus be reconsidered. The Romans themselves changed the rules, whether quasi-fictionist or quasi-symbolist, that prevented corporations from pos­sessing and inheriting. But the Realist will emphasise how many things a Roman corporation can do; and he will welcome and make his own the statement that a cor­poration personae vice fungitur. Correctly translated, it expresses the central doctrine of Realism, that in various aspects a corporation acts and is treated by the law like a natural man.

Symbolism finds in Roman law, as in Common law, more apparent support and more definite repudiation than any other theory. As in English the corporate borough of Cambridge is officially styled ‘The Mayor, Bailiffs and Burgesses’, so in Latin a town in its corporate capacity is usually called municipes.¹ Modern systems of Civil law have found ready to hand in the Corpus Iuris the distinc­tion between corporate and common ownership. Roman law and English law had to work it out for themselves, and are liable on occasion to forget it. It has been main­tained above² that statements like "municipes universi con­sentire nonpossunt' are due to forgetfulness of the distinction. But there is no sign that the Romans ever developed a scientific Symbolist doctrine, and they had outgrown crude Symbolism, despite later lapses, by the time of Gaius. His ‘ Quae publicae sunt, nullius videntur in bonis esse; ipsius enim universitatis esse creduntur'^ is enough to prove it.

¹ See p. 41, supra.               ³ P. 230, supra.                   ³ G. 2. 11.

Ulpian¹ and Marcian^{[225] [226] [227] name="_ftnref228" title="">[228]} base very practical rules on the fact that servus corporis is not servus plurium; and Ulpian3 gives with admirable clarity the essential difference between corporate and collective rights and liabilities: ‘si quid universitati debetur, singulis non debetur: nec quod debet universitas singuli debent'.

The Purpose Theory does not claim to have been worked out by the Romans. They recognised, as everyone must if it is put to him, an element of purpose in every juristic Person, but without personifying that purpose. The only serious Roman evidence for such personification is the supposed use of pia causa to mean a Charitable Foundation, and we have shown above* that the expression is not so used before, or by, Justinian.

One question remains. What has Roman law to say on the Concession Theory: did the Romans consider that a juristic Person could exist only by permission of the State ? Or, to put it in more Roman terms, could a town, a college, or a charitable foundation own and sue without the State’s leave? For towns, the answer is not entirely governed by private law; whether a conquered city is to retain its corporate existence, whether a new city shall be founded, these are political questions. But if a town exists politically, it has corporate rights under private law: ‘ civitatibus omnibus, quae sub imperio populi Romani sunt, legari potest'.5 For the Charities of Byzantium, we have argued⁶ that Concession was not necessary/ But for the collegia of the Classical Age, it was indispensable. There need not be a special grant in every case; burial clubs were sanctioned by the Lanuvian senatusconsult? as generally as companies by our Companies Acts; but unless a college had in some way or other received the ius coeundi, it was a corpus illicitum, no Person, but a group of men ‘ assuming

 upon themselves to be a body politic and corporate, and by reason thereof to have power and authority to convocate and assemble’.¹ For this rule no theoretical basis is sug­gested. There is nothing comparable to Lucas de Penna’s ‘ Solus princeps fingit quod in ret veritate non est',² or Savigny’s doctrines that only the highest power in the State can create artificial subjects of rights. The grounds of the Roman rule were purely practical. Under the Republic, free founding of associations had been allowed, with deplorable results. The Emperors were determined, as we can see from Pliny’s correspondence with Trajan, to exercise a strict control over a possible source of disorder and sedition.

It is clear that no collegium could lawfully exist without permission. It is not so clear whether every lawful collegium was a Person, could own and sue. We have accepted Mitteis’ opinion to the contrary,⁴ and regard corporate capacity as a privilege more closely guarded than the right of association. But even those who disagree may admit that the praetor or the Emperor could have refused access to the courts, whether they in fact refused it or not, even to lawful associations. Corpus habere required a State concession.

A Fictionist must believe in the need of Concession, but to insist on Concession does not imply a belief in Fictionism. This is perhaps hard for a Common lawyer to see; Realists are apt to demand absolute freedom of association and legal Personality for every group; and we cling to the fiction which we do not understand for fear of losing the control we are unwilling to forgo. To a student of Roman law it must be obvious that legal Personality can be at once real and conceded; for he has a clear example plainly before his eyes. ‘The State could confer “legal” personality on a slave; in early Rome all manumission

¹ 8 State Trials, 1051.

²  Quoted by Gierke, Genossenschaftsrecht, vol. m, p. 371.

³  System, vol. 11, p. 278.                        ⁴ See pp. 144-50, sufra.

236 was controlled by the State, but there was nothing fictitious about a freedman’s personality.’¹ All Personality at Rome was created, and created by the State, except that of a civis Romanns ingenuus, but no one could deny that a freedman was a real Person.

This seems to be the only positive lesson we can learn from the Roman law of Personality. On the Fiction and Reality problem it resolutely refuses to answer a question that had not yet been asked. Realists who repudiate its assistance lose very little and Fictionists who rely on it gain even less. The chief moral of the whole story is that in a peaceful and law-abiding community a well-trained, intelligent, and practical race of lawyers can build a very strong and effective structure of legal rules and legal administration on a very slender foundation of abstract legal theory.

¹ Buckland, Text-Book, 2nd ed. p. 174, n. 4.