Vol. 19 No. 19 · 2 October 1997

Boy Scouts, Bands of Hope, Football Clubs and Corner Shops

Jose Harris

3317 words
Pluralism and the Personality of the State 
by David Runciman.
Cambridge, 279 pp., £35, June 1997, 0 521 55191 9
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Throughout the history of political thought, attempts to imagine, classify and explain possible modes of political life have been characterised by starkly polarised and stylised antinomies. Among the most familiar are Aristotle’s nature and convention, Sir Henry Maine’s status and contract, Tönnies’s Gemeinschaft and Gesellschaft, Michael Oakeshott’s ‘Societas’ and ‘Universitas’, Durkheim’s ‘mechanical’ and ‘organic’ solidarity, and Hobbesian vertical ‘command’ models of authority v. Lockean theories of popular ‘consent’. Bertrand Russell described his conception not just of politics and society but of the whole physical universe as poised between a ‘pot of treacle’ and a ‘heap of shot’. In theoretical writings of the last twenty years theorists with often very similar political ends have been deeply polarised between models of ‘liberalism’, and models of ‘community’ that liberalism is widely deemed to exclude.

Just how far such bipartite models are mere heuristic abstractions, and how far they correspond to the facts of ‘real’ social structure and history, has been the stuff of historical and theoretical debate for many centuries. Unsurprisingly, intellectual and social historians have often found the waters more muddied – or more dialectical – than pure theory might suggest. Accounts of the growth of 19th and 20th-century government, for example, were long dominated by the supposed antithesis between ‘individualism’ and ‘collectivism’, advanced by A.V. Dicey as the master key to the evolution of the modern state. This tidy and convenient model is now largely rejected by empirical historians, not least because many of Dicey’s ‘state-interventionists’ turned out on closer inspection to be philosophical ‘individualists’, while many of his ‘anti-interventionists’ turned out to be supporters of a reified and all-embracing, holistic political theory. The more recent neo-liberal rhetoric of rolling back the state has similarly turned out to have less to do with ‘rolling back’ than with ‘shifting round’ the furniture of the state from some public arenas to others. And as a clue to policy, the conceptual polarity of negative and positive liberty has fared little better, since demands for enlarged state provision in all Western countries are now increasingly framed in terms, not of self-realisation and higher ends, but of consumer satisfactions and individualised private rights.

A rather different range of binary contrasts, but one that similarly links timeless questions of theory to more concrete issues in social and constitutional history, provides the theme for David Runciman’s modestly titled but far-reaching book. Runciman’s study deals not with pluralism in its current, largely sociological, sense of ethnic, cultural, sexual and lifestyle diversity, but with pluralism in its early 20th-century political sense (referring to self-governing groups within the territory of a state and the degree to which they owe their legal existence to that state or are in some sense autonomous). Runciman’s analysis, which ranges from Hobbes to Harold Laski, from the 17th to the 20th century, and across Roman, German and English law, engages with a matrix of closely interrelated and complex questions. These questions, posed by the great natural law theorists of the 17th century and reformulated by the Pluralists of the early 20th, have been almost totally eclipsed. Yet it seems inevitable that they will in one form or another soon be revived, in response to the current enthusiasm for dispersing power upwards, downwards and outwards from unitary national authorities.

The core of these questions may be summarised as follows. Is ‘sovereignty’ a starkly juridical concept with the same timeless properties in all conceivable political regimes, or is it a contingent entity deeply enmeshed in the historical process? Is sovereignty located in a meta-political sovereign who wields ultimate power, or is it reciprocally diffused among the institutions and citizens of the body politic? Is the state an institution superior to, and generically different from, all other forms of human association; or are there many different kinds of autonomous association, each with its own distinct sphere of legitimacy (ranging from churches, universities and trade unions, through to families, gangs, neighbourhoods, pubs and clubs)? And are states and other associations ‘persons’, endowed with ‘personalities’; or is this way of speaking misleading, dangerous and redundant (‘misleading’ because it invokes metaphysical hocus-pocus, ‘dangerous’ because of a slippery slope towards fascism and social exclusion, ‘redundant’ because it adds nothing to our understanding of these groups beyond what we already know)?

Runciman sets out his possible answers to these questions within the contrasting intellectual traditions of Roman and Germanic law. The tradition of Roman law, powerfully revived in Europe during the 16th and 17th centuries, dealt only with individuals and states, and knew nothing of intermediate ‘corporations’ (except insofar as these were ‘conceded’ or licensed by the over-arching law of the Roman imperial state). Medieval German law by contrast dealt with ‘the ordered life of the community as a whole’, and treated guilds, corporations and local authorities as having autochthonous legal standing, quite independent from the ‘positive’ law of the state. In England, theory and practice hovered selectively somewhere between the two. From the 17th century and earlier, English ideas about royal and/or Parliamentary sovereignty largely followed the Romanist model. English boroughs and corporations got their powers from above, handed down by royal charter; the development of English local government was wholly dependent on Parliamentary statutes; and the most rigorous strand of English political theory – embodied in the writings of Hobbes, Bentham and Austin – dismissed the very possibility of any kind of genuine law other than that positively authorised by an absolute sovereign. At the same time, however, inventive English lawyers had gradually developed over many generations the notion of the ‘trust’, which among other things enabled small groups of people to carry out any lawful business without specific concession from the state, and without raising thorny questions about whether they thus transformed themselves into living corporations with distinct legal personalities.

The heart of Runciman’s argument is that Hobbesian and subsequently Austinian ideas have been paramount in English political culture throughout most of the period since the early 17th century. Moreover, the Hobbesian state was not the non-interventionist, multi-faceted ‘Societas’ portrayed by Oakeshott; on the contrary, despite Leviathan’s famous reference to the ‘silence of the laws’, it was a comprehensive unitary framework within which all private organisations other than the family were seen as latently subversive of the body politic, and were thus permitted to exist only on sufferance from the sovereign. Between the 1890s and 1930s a serious challenge to this model was launched by the group of legal, political and historical theorists who can be loosely grouped together as Pluralists – F.W. Maitland, J.N. Figgis, G.D.H. Cole, the young Harold Laski and the young Ernest Barker. The chief inspiration for this flowering of pluralist thought came from the writings of the German historian and jurist Otto von Gierke, and its chief conduit was the English publication of portions of Gierke’s monumental Das deutsche Genossenschaft, one part translated by Maitland in 1900, a second by Ernest Barker in 1934. The background to this interest in Gierke’s ideas lay in Edwardian controversies over the autonomy of trade unions and churches, later reinforced by the enormous expansion in the arbitrary powers of the state provoked by the Great War. Enthusiasm for political pluralism collapsed, however, in the Twenties and Thirties, as Continental ‘corporatist states were themselves seen to be collapsing into syndicalism, Fascism, revolutionary violence and ‘absolutism’ of a kind never before envisaged even in Hobbes’s worst nightmares. Paradoxically, one of the many curious aspects of the British response to Hitler turned out to be a revival of confidence in ‘absolute’ sovereignty; a revival expressed in widespread reaction against the claims of small-group organisations, a deep distrust of corporatism, and a powerful re-legitimation of the ‘bare’, abstract, juridical model of the Hobbesian positivist state.

This was not, however, at any stage a simple conflict between two clearly defined and mutually exclusive traditions: on the contrary, it is one of the many virtues of Runciman’s study that, while separating out their analytical components, he constantly emphasises the shifting historical boundaries, interactions and resonances between problems and participants on either side. The book is organised around a series of themes, closely interlocking with each other. It begins with a detailed reading of Hobbes’s account of ‘the Person of the Commonwealth’, constructed in terms of Hobbes’s intellectual debt to Roman law. The Hobbesian sovereign, whether monarch or assembly, was indeed a ‘Person’, but it was an artificial ‘person’, authored or ‘authorised’ by the ‘natural persons’ who actively or tacitly agreed to its setting-up. Such ‘natural persons’ had themselves no common identity prior to the erection of a sovereign, ‘for it is the Unity of the Representer, not the Unity of the Represented, that maketh the Person One. And it is the Representer that beareth the Person, and but one Person: And Unity, cannot otherwise be understood in a Multitude.’ In other words, without a sovereign, the sum of private individuals was no more than a heap or a mob. Lesser groups within the Hobbesian Commonwealth could also be described as ‘Persons in Law’, who represented and conferred unity on their diverse members; but once again such persons were ‘artificial’ or ‘fictitious’, manufactured by their legal artificer, who in this case was the sovereign. This dependence on and derivation from the sovereign meant that such groups could not conceivably add up to a ‘Societas’ in the Oakeshottian sense. Yet there is more common ground with pluralism here than we might expect: as Runciman suggests, ‘the state itself is of the same species of association as the corporations that it contains’: a theme that was to have unexpected resonances in 20th-century pluralism.

The second leg of the argument consists of an analysis of ‘real’ group personality as set forth by Gierke, and particularly of Gierke’s critique of the Hobbesian and ‘antique-modern’ tradition of Roman law. Against the antique-modernists, Gierke took as his starting-point the assumption in medieval German law that the group was always prior to the whole, and that the rights and identity of individuals were inconceivable outside a community or corporation. Whatever was ‘genuinely medieval starts from the Whole, but ascribes an intrinsic value to every Partial Whole, down to and including the individual’. Corporate bodies had an autonomous existence not merely within but ‘over against’ the state, and relations between state and individual were universally mediated through such corporations. These identities and relationships formed the fundamental building blocks of what Gierke called ‘the old Germanic idea of the Rechtsstaat’. And unlike the static, analytical abstractions of the Romanist tradition, these ideas were constantly evolving, dialectical and dynamic: they aimed not to abolish Roman law so much as to embrace, transform and transcend it. Thus Gierke’s goal, Runciman claims, lay

not in modernity but in what might be called ... the increasing post-modernity of 19th-century German life and thought. This tense that the antique-modern world of ideas was being supplanted by a new and peculiarly German synthesis provides Gierke’s work with a conclusion which is properly historical as well as distinctively Hegelian, coming as it does at the end of history rather than at the beginning.

This brings us to Runciman’s third major theme, which is how the confrontation between Hobbesian/Roman and Gierkean/German ideas worked itself out in the theories of the English Pluralists. F.W. Maitland’s dislike of the Hobbesian model may well have antedated his acquaintance with Gierke (Maitland’s famous failed fellowship dissertation, for some reason not mentioned here, had criticised Hobbes’s reductionism, excessive positivism and asocial frame of reference, back in the early 1870s). Maitland greatly admired the modest and flexible concept of the trust, and always retained an Anglo-Saxon distaste for ‘real’ group personality. Yet much of his life’s work as a legal theorist was to be devoted to the transmission of Gierkean ideas, to pressing for a more precise legal definition of corporations, and to advancing the view that the state was not a meta-political superstructure but merely one among many forms of complementary human association. Quite what impelled Maitland’s interest in pluralism remains unclear, since unlike other Pluralists he had no stake in the disputes over trade unions or churches. It seems plausible if unfashionable to conclude that his motive was one of pure intellectual fastidiousness; he disliked much of the mess and muddle of English law, even while admiring its dextrous pragmatism.

Disinterested detachment could not, however, be credited to Maitland’s Cambridge colleague and fellow devotee of Gierke, John Neville Figgis. As an anti-Erastian Anglican churchman, Figgis was deeply exercised by the dispute within the Edwardian Scottish Free Church (a dispute only ultimately settled by Parliamentary legislation). And as a priest and theologian in the post-Tractarian, ‘Catholic’ tradition, Figgis was concerned with defining an intrinsic identity for the Church of England (and indeed for any church) that was independent of the Thirty-Nine Articles or any other form of state intervention. These concerns were central to Figgis’s writings on theology and history. His early work on The Divine Right of Kings sought to relativise and historicise the Hobbes-Austin theory of the state, but nevertheless retained such a theory as a serviceable buttress to policies of religious toleration. His later works, however, drew increasingly on the theories of Gierke to suggest that a church was an independent Genossenschaft, a ‘real person’ recognised but not authorised by the secular state. The state itself was a mere communitas communitatum, whose job it was merely to enable other groups and associations to co-exist peacefully, conveniently and indeed ‘pluralistically’ together.

Figgis’s studies of the 1900s marked the apogee of Gierkean pluralism in political thought in England. Similar ideas were discussed by Laski and Cole, but, so Runciman argues, with very little sense of their underlying implications and meaning. For Cole they were largely a vehicle for promoting guild socialism, for Laski little more than a medium for exploring civil disobedience (and also, perhaps, for annoying the elderly establishment of philosophical Idealists). For both men the quasi-idealist dialectic of Gierke gave way in the Twenties to the more materialist dialectic of Marx and Lenin. A more semi-detached but perhaps more serious Pluralist was Ernest Barker, whose pre-1914 analysis of sovereignty and corporations owed something to Gierke, but a least as much to the low-key Idealism of T.H. Green. Barker had no difficulty in accepting that corporations had ‘personalities’; much more difficulty in seeing any imperative need to treat those personalities as ‘real’. His construction of pluralism was infused with a vision of Edwardian England as a seething torrent of associational life – of churches and charities, trade union and friendly societies, Boy Scouts and Bands of Hope, football clubs and corner shops – all offering immensely rich possibilities of community and identity, self-government and micro-citizenship, fellowship and freedom, outside the narrow confines of the sovereign state. It was the same vision that, in another context, Helen Bosanquet had dubbed ‘social collectivism’, as distinct from the unitary ‘state socialism’ of Sidney and Beatrice Webb. The complement of this vision was what Barker was quite happy to call ‘the discredited state’ – meaning, not that the sovereign state was in disgrace, but simply that there was a diminishing need for the state to be asserting itself, when self-regulating communities and association were able to do so much.

Barker wrote his article on the ‘discredited state’ in May 1914. When it was published a year later he remarked ruefully that war had rendered all his observations obsolete: the British people had ‘forgotten we are anything but citizens’, and the all-encompassing, absolute, command-issuing state was back in business with a bang. Barker never again wrote so hopefully of English social institutions as he had in the prewar years; but as Runciman remarks, he ‘kept faith’ with his ‘modest pluralism long after Cole and Laski had abandoned theirs’. Throughout the interwar years Barker’s work for bodies like the Sociological Society and the National Council for Social Service was devoted to trying to recover and reinvigorate the national culture of spontaneous popular pluralism that he believed had existed in Edwardian England (and whose decimation in France and Flanders had been the Great War’s most irreparable loss). He also never lost his interest in Gierke, and published his translation of Gierke’s Natural Law and the Theory of Society just at the moment when the last vestiges of the German Rechtsstaat, to whose explication Gierke had devoted his life’s work, was crumbling under the onslaught of the Nazi state.

By this stage, English concern with pluralism as a current political theory was very nearly extinct. But Barker’s rendering of Gierke gives Runciman the cue for the fourth and last of his major themes, which is a subtle cross-reading of Hobbesian and pluralist thought that stresses their common invocation of the language and metaphor of theatre. I have already noted Hobbes’s frequent resort to images of actors, authors and representatives; and, no less than Hobbes, Barker was particularly fond of visualising the state as a theatrical stage – as a ‘place of legal actors, all of whom play a role, and each of whom may be called a dramatis persona’. Both men were well aware that the word ‘personality’ had evolved from ‘persona’ – the Latin word for the mask worn by actors in the Roman and Greek theatre. Both portrayed ‘persons’ as authors and actors playing their part in an arena where personality is conveyed obliquely, by ‘masks’, artifice, rhetoric and representation. And in both writers there is sometimes a vertiginous sense, as in Shakespeare, of metaphor merging with reality, of the one subverting, transforming and rewriting the other. Thus the personality language of pluralism appears quite unexpectedly to converge with the apparently quite different personality language of legal positivism and Hobbism. ‘Within the Hobbesian commonwealth,’ Runciman concludes, ‘the sovereign is unquestioned author of whatever legal drama takes place there.’ And in Barker’s ‘modest’ pluralism, ‘if the state is to be a legal person, the state has somehow to rise up and walk across its own boards. The state, which is a stage, has to play a part on the stage which is the state.’

Inevitably, in a short book on a series of large themes there remain some unanswered queries and omissions. I would have liked to hear more about the historical background to pluralist thought, and in particular about the battles of the Catholic Church with Bismarck’s Reich and with the French Third Republic: battles which attracted some Englishmen to pluralism, but appear to have strengthened the anti-pluralist prejudices of others (for example, Dicey, who saw no reason for churches to transcend positive law). The fact that the rise of interest in pluralism coincided with the earliest attempts to limit state sovereignty by international law seems to deserve comment. Theological parallels with pluralism, particularly the late 19th-century spread of incarnationalism, and decline of God as an utterly transcendent ‘sovereign’, might repay further attention; as might the multi-faceted personality language of the Nicene, Apostles’ and Athanasian creeds. More could be said about the wide range of legal arrangements, in addition to trusts, which enabled Englishmen to arrange their affairs in groups, without resort to questions of ‘real personality’. The motif of political theory as theatre seems to invite exploration not just of masks but of masques, and of ways in which that highly politicised Jacobean medium might have shaped the political imagination of the young Hobbes. But overall this is a richly inventive, absorbing and arresting work, full of acute incidental insights into current political issues. Whether it will be read by any of those ‘Actors’ whom we, the ‘Multitude’, have currently ‘Authorised’ as our ‘Representatives’ in Parliament is, unfortunately, quite another matter. According to a recent survey in Marie-Claire, most new MPs get their theories from Neighbours and Brookside – the political masques of the current age?

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