If we hold fast to the conception of the State as a legal association, acting under an ultimately sovereign constitution, through an immediately sovereign law-making body, we shall recognize that there is a large area of social life which the State will not touch, or, rather, will touch only at those points where the ‘social’ spills, as it were, over into the ‘legal’, and thus trends to legal consequences.
The State, for instance, will not touch religion, so far as religion is a matter of internal and spiritual activity, though it may be compelled to touch it at points where the existence and action of religious bodies raises legal issues such as the interpretation and the administration of trusts; and the reason why it will not touch religion is the fact that law, through which by its nature the State always acts, is essentially a matter of uniform rules, for the control of external actions, which are irrelevant and inapplicable to the inner nature of religious activity.
Similarly, the State will not touch economics, so far as economics is a matter of the internal and mental activities of original decision at the point where a problem arises and original experiment for its solution by the method of trial and error; though it may, and will, be compelled to touch economics where the existence and action of economic bodies and groups raises legal issues of the rights and duties of persons who are immediately concerned or indirectly affected.
It is impossible to convert the general operation of economic activity, with its multitudinous problems of particular decision and its manifold requirements of particular adaptation, into a system of uniform legal rules. But it is also impossible not to create a system of such rules, in a field of action which may be called one of ‘supervision’, rather than ‘operation’, for the mass of similar problems, involving general issues of the rights and duties of persons, which the activity of economics always presents and which become increasingly pressing as public opinion becomes increasingly aware of their presence.
There is a difference in this matter, between religion and economics; and the cause of religious liberty is a different cause, at any rate in degree, from that of economic liberty.
Economic activity raises legal issues, and is therefore drawn into the area of the State, to a vastly greater degree than the activity of religious life. But the two liberties, even if they differ, have been, and may be, defended together by the same general argument.
There are two possible lines on which they may thus be defended. One line of defence, which has just been suggested, is directed to the nature or quality of the subject-matter involved; the other is directed to the nature or quality of the agents which handle the subject- matter.
On the first line of defence, the argument advanced in favour of religious and economic liberty is that the subject- matter involved, or in other words the activity in question, is an internal activity, a motion of the mind, which as such and by its own nature must be free from legal compulsion.
On the second line, the argument is that the agents which handle the subject-matter, or conduct the activity, are living groups, of the nature of persons, which as such and by their own nature must possess and enjoy the liberty inherent in all personality.
The latter line of defence has often been employed by English thinkers since the beginning of the century. The foundations were laid by Professor Maitland, as long ago as 1900, in the introduction to his translation of a section of Gierke’s work on Das deutsche Genossenschaftsrecht, which was published under the title of Political Theories of the Middle Age.
The subsequent development of events—particularly the judgement of the House of Lords, in the year 1909, in the Free Church of Scotland case, and the Osborne judgement of the same House, in the year 1909, in a case concerning the rights of trade unions—led to further building on these foundations; and a general theory began to be advanced of the general rights of groups, both religious and economic, in the system of the modern State.
The gist of this theory was:
(1) That a group, such as a Church or a trade union, is a real person, a group person, with its own group mind, its own group will, and the general attributes of personality;
(2) That groups of this order come into existence, and continue to grow, as such real persons, not in virtue of a legal act outside themselves, such as parliamentary authorization, but in virtue of their own motion and by their own spontaneous action; and
(3) That being real persons, which have come spontaneously into existence and continue to grow spontaneously, these groups have rights of acting freely for their own purposes, which the State is bound to respect (as it is generally bound to respect all rights of personality), so long as they are not exercised for purposes inimical to its own purpose of maintaining a scheme of law and order.
We may begin by noting that this general theory is double- edged. If it is applied to groups other than the State, it fosters syndicalism, or a general philosophy of the autonomy of groups (and particularly of economic groups) at the expense of the authority of the State.
If, on the other hand, it is applied to the State, and if the State is regarded as a personnel morale with a volonte generale transcending and reconciling individual wills, the theory fosters etatisme, and issues in a philosophy of the total and engulfing State whose will is the peace—and the tomb— of its members.
If groups are to be the beneficiaries of this theory, the greatest group may well be the greatest, and even the only, beneficiary. We shall, therefore, be wise, before we turn groups into persons (and ‘real’ persons at that), to inquire what a person is, and in what sense, if any, a group may be called a person.
Here we must draw a distinction between the moral world and the legal. In the moral world the only persons are individual human beings. It is they, and they alone, who have minds: they, and they alone, who have wills. In the moral world there are no group persons, no group minds, and no group wills. There are, of course, groups in the moral world. But these groups are not persons.
They are bodies (‘wholes’, as Aristotle would have said) composed of individual persons who hold common ideas and will common purposes, but hold them as individuals and will them as individuals: individual persons who, of course, interact, and are what they are because they interact, but who are still individual persons. The unity of a group, in the moral world, is not the unity of a common mind: it is the unity of a common content of many individual minds.
Here we have to notice that the word ‘person’ has a peculiar sense. A study of etymology will help us to understand this sense. Originally the word persona signified an actor’s mask, and thence, by an easy transference, the character or dramatis persona who wore a particular mask.
A further transference carried the word from the stage to the field of law; and persona became the legal mask worn, and the legal character sustained, by a legal actor or agent on the scene of the legal State. A still further transference carried the word in time from the legal sphere to the moral; and persona became a personage or person who sustained a character and played a part on the general scene of man’s moral activity.
The dramatic, the legal, and the moral senses of the word have each their own significance; and, in particular, the legal sense has a peculiar significance of its own which must be distinguished from that of the moral.
In the legal sense individuals—that is to say men and women who are already persons in the moral sense and agents in the moral world—are further conceived as wearing legal masks; as each sustaining a legal character; as being legal actors or agents who play their part in the ‘drama’ or action of the legal State; in a word, as being ‘persons at law’. But this is not all.
In the legal sense, and in the view of the law, a group of individuals, which as a group is not a person in the moral sense or in the moral world, may also wear a legal mask, sustain a legal character, and be a person at law. This is what happens when a group becomes ‘corporate’ or embodied, and when, as such, it is ‘legally authorized to act as a single individual’.
It may then hold property, sue and be sued, make and break contracts, suffer and inflict torts, and generally behave and be treated as a quasi-individual. But it remains a quasi-individual, and does not become an individual: it remains in the legal sphere, but it does not enter the moral: it is a person only in the legal, and not in the moral, sense.
How are these quasi-individuals, these purely legal persons, admitted to their position? Obviously, if they exist as persons only within the legal area, they must be admitted into that area by an act of the legal association, or in other words of the State. This is not to say that the act of the legal association— which may take the form of executive warrant or charter, or of legislative authorization, or of judicial decision—is an act of creation. It is an act of recognition.
The group is already there as a fact before it achieves recognition as a person; and groups may continue to remain as facts without being recognized as persons. In the whole of the area of legal personality the State is an organ of selection and recognition.
This is true, in a measure, of individuals, as well as of groups. The State makes some sort of selection even among individuals; it determines which of them it will recognize—or, more exactly, which of them it will not recognize—as legal persons in its legal scheme.
In England, for instance, an ‘idiot’ is not a legal person, and in France a person punished with civil death (mort civile) forfeits all legal personality. Similarly the State selects among groups, determining which it will accept as legal persons in its scheme; but here—more concerned with positive selection than with negative—it picks and chooses not those which it will not recognize, but those which it will.
Individuals are legal persons unless they are excepted; groups are legal persons only if they are accepted. No groups, therefore, are legal persons in the absence of specific authority in their favour—authority proceeding from the executive or legislative or judicial organ of the State.
We may now draw the argument to a conclusion, and bring the conclusion to a point by taking a particular example. The conclusion is, on the one hand, that no groups are real persons, possessing real minds and wills of their own apart from the minds and wills of their members; it is also, on the other hand, that some groups are legal persons, vested with legal capacities of acting in the sphere of the State as though they were individuals, and vested accordingly with the consequent position or status of quasi-individuals.
Trade unions may serve us as an example. A trade union is not a real person, acting in the moral world. It is not even one of those groups which are legal persons, entitled to act in the legal world as quasi-individuals; for it is not in the eye of the law (though some judicial decisions in the past have tended in this direction) ‘corporate’ or embodied, and therefore it is not a person at law.
But if a trade union is neither a real person nor a legal person, then there is little to be gained from discussing its rights, or the measure of liberty which it should enjoy, or its general relation to the State, in terms of persons and. personality.
If we wish to defend the rights and the liberty of trade unions, we shall do better to adopt the line of defence which starts from the subject-matter of their action and the nature of their activity; which looks pragmatically to what they do, and not metaphysically to what they are.
The real question, in any discussion of the relation of trade unions to the State, is not the question whether they are persons, of whatever sort or character. It is the simple question whether the State, in determining its attitude to a group of individuals acting together on the basis of common ideas for the realization of a common purpose, should leave their activity to operate freely in the voluntary area of social initiative and social experiment, or should draw it into the involuntary area of legal control and legal uniformity.
The ‘being’ of the group (person or not-person? and, if a person, which sort of person, the moral or the legal?) is irrelevant to that question: the one thing relevant is what the group does, what its activity is, and whether that activity can, and should, be regulated by law.
On this basis it may be argued that, as the activity of a trade union is multiple (partly charitable or educational, partly political, and partly—indeed mainly—economic), different considerations will come into play in each different field of activity.
So far as the activity of a trade union is charitable or educational, it should, in principle, be left free to operate in the voluntary area, because it is an internal or spiritual activity, a free motion of the mind, which belongs by its nature to that area.
So far as the activity is, directly or indirectly, political—so far as it consists in raising political funds to support a political party, or in promoting a strike intended or likely to affect the government of the community by pressure or the community itself by privation and hardship—the activity may, in principle, be brought under legal control and made subject to legal rules. (This is not to deny that, in practice, the State may be wise in abstaining as far as possible from the policy of legal control, and in preferring to trust to voluntary good sense and the voluntary action of public opinion.)
Midway between these two activities—the charitable or educational activity, and the activity which is directly or indirectly political—there is the main and general activity of trade unions, the economic activity, which consists in collective bargaining (backed by the power of the strike) about the wages and conditions of labour.
Here, if we follow the principle that original decision, at the point where a problem arises, and original experiment for its solution, by the method of trial and error, are the cardinal factors which ought to be respected in the field of economics, the activity of trade unions will be left, as far as possible, to operate freely in the voluntary area. It cannot, indeed, be left utterly free.
On the one hand the State is bound to protect the rights of persons, if and so far as they are adversely affected by particular acts of trade unions (such as acts of intimidation) in the course of the general activity of conducting a strike: on the other hand it is bound to ensure the efficient and continuous operation of its own administrative agencies (post office, police, and the general civil service), and it must thus impose some measures of restriction on trade unions formed by its own employees.
Generally, however, and apart from such exceptions, the presumption remains in favour of the freedom of the economic activity of trade unions. But it must again be repeated that that presumption is not based 011 any ‘personality’ of trade unions, or the nature of that ‘personality’. It is based entirely on their activity and the nature of that activity.
Because it is activities that matter, and because one and the same group may have, and indeed is likely to have, different orders of activity at the same time—activity of the voluntary order in the social sphere, and activity of the controlled order in the legal—it follows that the same group may belong, and indeed is likely to belong, to both spheres simultaneously.
A group moves in two worlds, or at any rate shows two faces: it is, as a general rule, both a voluntary group acting freely in the social sphere and a state-regulated group acting under law in the legal.
A Free Church lives and moves almost altogether outside the legal sphere: but even a Free Church—or rather the trustees who hold its funds on its behalf—will come into the courts, and be drawn into the legal sphere, if a question arises about the application of its funds and its property.
The same may also be said of trade unions: indeed, it may be said even more, because a trade union may not only come into the courts on a question of the proper application of its trust funds, but also on a question of the effect of its acts, or the acts of its representative agents, on the rights of persons whom they may affect. But if we connect we must also distinguish the status of the religious group and the status of the economic. Both move in two worlds; but the one moves more in both than the other.
When a religious group has vindicated the position of a Free Church, and established itself and its life in the area of Society, it remains in that area untroubled (unless some rare issue of funds or the like should draw it out into the legal sphere), because its main activity is a practice of spiritual conviction which does not affect other persons—at any rate in ways of which the State can, or will, take cognizance.
No economic group can escape so entirely, or remain so untroubled; for the main activity of economic groups consists in the doing of external acts which may affect other persons adversely.
It is true that a trade union has, at its roots, the same sort of desire as a Free Church to defend and maintain a set of inward convictions; but the convictions themselves, even when they reach their highest point of a genuine passion for moral principles, are convictions of a different order from those of a religious society, and the means of their maintenance and defence are mainly material means.
The theorists who have connected the cause of religious liberty with that of economic liberty have sometimes forgotten that there is a difference which divides, as well as an analogy which connects, the two causes.