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Otto Gierke, the Corporate Person, and Natural Right
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16320 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
3 / 1989 |
7,741 Words |
| Author
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Roger Scruton
Roger Scruton is professor of aesthetics at Birkbeck
College, University of London. His books include Art and
Imagination, Sexual Desire, and Untimely Tracts. |
The reputation of Otto Gierke once stood high. He found British disciples in F.W. Maitland and J.N. Figgis, the first a thinker of great subtlety able to match and even to surpass the complexity and erudition of Gierke's argument; the second an able rhetorician who adapted Gierke's ideas to his own polemical purpose and made a brief but startling commotion in the world of ideas. Like Gierke, Maitland and Figgis were conservatives. However, the liberal constitutionalist Sir Ernest Barker also took an interest in the German jurist, translating (as Maitland had done) an extended section of Das deutsche Genossenschaftsrecht, to which he added his own elegant reflections in an effort to distance himself from what he feared to be the collectivist implications of Gierke's argument. Socialists too--G.D.H. Cole, Harold Laski, and S.G. Hobson--were influenced by Gierke's conceptions, the first finding in them authority for the "guild socialism" that he advocated as a remedy for the decline in social life.
Nor was it only in Britain that Gierke made his mark. His influence was felt in France in the liberal-socialist thought of Leon Duguit and Hugo Krabbe, and in the conservative theory of institutions developed by the jurist Maurice Hauriou. In his native Germany, Gierke was taken up by the nationalists and by the liberal constitutionalist Hugo Preuss.
Yet today Otto Gierke is all but forgotten. His great study of the law of associations--Das deustsche Genosenschaftsrecht, the fourth and last volume of which was published in 1913, when the author was seventy-two years old--is now long out of print, and has never been translated in its entirety. (We owe the two English fragments to Maitland and Barker, whose versions are also out of print.) Gierke's followers are now few and far between, and his writings are seldom referred to, except ritualistically and then only by either philosophers, historians, or jurisprudents. The German law whose principles he described has been transformed beyond recognition, and his conception of it was in any case based more on an ideal of history than on a record of judicial practice. Thanks to nazism, Gierke has also had to bear a weight of accusations on account of a worldview that had only the shallowest relation to the national monarchism he espoused.
Gierke was born in Stettin in 1841 and devoted his life to the study of law. The controversy between the Romanists (followers of Savigny) and the Germanists (advocates of a distinctively German, "historical" jurisprudence, as opposed to the universalism of the "civilians") had already begun, and was to exert a lifelong influence on Gierke's
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