Freedom of Association Vindicated: Scruton on Gierke’s Corporate Personality and Its Contemporary Relevance
摘要
This article deals with the notion of the community, as it concerns legal, constitutional, and political thought. The present attempt aims to do two things. First, it would like to show the relevance of associations for political philosophy. In this, it will introduce the historical reconstructions of medieval associations and corporate personalities in the work of the nineteenth-century German legal historian, Otto von Gierke. Although Gierke is not unknown in the English-speaking work, there is a need to go back to its own historical context of the reception of medieval and Roman Law, in order to make a proper sense of this rather complex system of thought, as intended by its author, in a given intellectual, spiritual and political climate. Secondly, this chapter would like to focus on the reception of this thought in the Anglo-Saxon world. It will focus on two specific contexts. First, on the context of legal-constitutional thought, in the work of William Maitland. His Political Theories of the Middle Ages, a translation of a part of Gierke’s seminal work was crucial in the constitutional thought of modern Britain, and his interpretation of Gierke played a major role in this intellectual appropriation. It was crucial in the sense that it showed the connections between the Continental Roman and Canon Law traditions and the medieval roots of English common law. In our overview and interpretation of Maitland, Ernest Barker will also play a certain role. Finally, we shall have a look at the discussion of medieval corporate personalities in a contemporary philosophical dialogue and exchange of views. The analytical philosopher of British conservatism, Roger Scruton discussed this issue with John Finnis, a thoroughgoing and inventive neo-Thomist thinker, who tried to revitalise notions of Natural Law and the common good. Their dialogue shows that the late nineteenth-century reconstruction of medieval principles and institutions is relevant even today, in an Anglo-Saxon context as well.