From H. J. van Eikema Hommes, Major Trends in the History of Legal Philosophy (Amsterdam: North-Holland Publishing Company, 1979), pp. 199-205.

7. Beseler’s Theory of “Corporate Law” (“Genossenschaftsrecht“). Autonomy as a Source of Law

 Although Beseler’s theory of the sources of law was hardly lucid and although he positivistically conceived of legislation once again, as the absolute, self-sufficient form of law’s genesis and its validity,[1] his great contribution is the development of a theory of Genossenschaftsrecht (corporate-law) and of corporate autonomy as a source of law. Eichhorn too had treated autonomy as a source of law in his Deutsche Rechts- und Staatsgeschichte (from 1808 onwards) but he had interpreted it contractually (e.g. agreements between the emperor and estates about their reciprocal rights).[2] In opposition Puchta had advanced the argument that a contract is not, in principle, a source of law because it produces only a legal relation between subjects, not a rule of law. In earlier times it functioned according to him only irregularly as a source of law on account of the absence of a well-ordered state (Gewohnheitsrecht, I, p. 156 ff.).

Beseler, however, dissociates himself from the contractual interpretation of autonomy (which only makes it a matter of concern for inter-individual law) and views it, instead, as the legal source of internal corporate law. Corporate law is, so Beseler contends, the juridical expression of the typically German “associative spirit” (“Associationsgeist“) which, purified by Christianity, expresses the freedom of the subjects in a multitude of autonomous corporations thus enriching and deepening the life of the state. The corporations which according to him can be subdivided into territorial municipalities (Gemeinde) and corporations (Genossenschaften) unified for a particular purpose, are not just contractual, inter-individual relations among men, but they constitute, though most of them find their genetic form in contract, higher communities which encompass all their members by their own internal corporate law and possess their own general juridical ordering of will, which transcends the individual will’s functions (Volksrecht, p. 158 ff.). Internal organizational law (die Verfassung) which regulates the internal rule-making (usually by majority-principle), internal administration, and the relation of the members to the whole, on the basis of which the corporation can function externally as a legal unity, rests upon autonomy in the sense of “the competence of free corporations, originally also belonging to municipalities, to order their own constitution independently within their own legal spheres, that is, to the extent that the rights of third parties or some definite public interests are not thereby affected, and to make lasting norms which validly bind the corporation as such and all its members” (Volksrecht, p. 182, 183).

On these grounds Beseler also offers a pointed critique of current fiction-theories of corporate personality, which, being based on individualistic premises, all teach that the legal personality of the corporation is not an independent real juridical unity in the multiplicity of the members, but merely an artificial legal person distinct from the members and instituted by the state. Beseler says: “The corporation and the municipality are no more fictitious than the state itself; in the totality which is so ordered there is an organic life, a personality, the significance of which is misunderstood entirely if it is merely conceived in contrast to the individual human person…” (Volksrecht, p. 182).

This conception of internal corporate-law, according to which such law does not rest on delegation by state-legislation, but is founded on an original rule-making competency, was a stroke of genius. In principle it meant a rejection of Bodin’s state-absolutistic concept of sovereignty [sic], as also adopted by Puchta and the Pandectists and especially by the legal positivism of the nineteenth and twentieth centuries.

8. Otto Gierke. His Theory of Corporations. Corporation and Legal Community. The Reality of Social Organisations

Beseler’s theory of corporations (“Genossenschaften”) was brilliantly elaborated by his disciple, Otto Gierke (1841-1921) in his major work Das Deutsche Genossenschaftsrecht (4 vols., 1868-1913) and in numerous other writings.[3]

Gierke’s self-imposed task of investigating into the old-German idea of law was meant to once again bring this idea to vital conscious growth and fruition in modern law-formation. This should happen however in such a way that all the principles of law, which, initially, were introduced during the reception of Roman law in opposition to the German national Spirit, but must be acknowledged in every differentiated system of law (such as the distinction between legal competence (legislation) and subjective rights, and between public and private law) should be included in German legal consciousness.

In the second volume of his Das Deutsche Genossenschaftsrecht Gierke presents the main features of the old-German idea of law and justice (par. 2. Der Bildungsgang des deutschen Rechtsbewusstseins, pp. 6 ff.; par. 3. Der deutsche Personenbegriff im Allgemeinen, pp. 25 ff. and par. 7. Der Begriff des Rechts, p. 126 ff.). Its distinctive characteristic is an inner, organic bond of legislation and personal liberty, of individual and community. Whereas, says Gierke, in Roman law the legal subject was characterized by absolute and arbitrary will-power, to the Germanics the juridical will was morally bound by a supra-individual idea of community. Whereas the subjective rights of Roman law were only extrinsically restricted by law and by the rights of others, in old-German law the individual’s right of disposal is delimited intrinsically by legal duties towards the spheres of social community. “It corresponded with the more profound and fuller disposition of our people, that it included this restriction and condition of free disposal within the concept of subjective right itself, while the Romans posited the subjective right with keen acuity as a unilateral and unconditioned power, in order to delimit it extrinsically by the concept of legislation and the rights of others” (Das Deutsche Genossenschaftsrecht, p. 131).

While in Roman law the public sphere of the state’s power was pitted over against the private sphere of law, the citizen being completely at the mercy of the state’s power since no real legal protection over against the state was recognized, the old-German consciousness of law emphasized the internal coherence of public and private spheres of life so that a real public law, which Rome lacked, could be developed (Das Deutsche Genossenschaftsrecht, p. 32).

 Finally, Roman law evidenced a pronounced contrast between corpus and societas; the former being a corporate unit entirely dissociated from its members and deriving its internal corporate law from the Roman state, while the societas was a purely inter-individual legal relationship which did not integrate the legal subjects to a higher legal bond. By contrast the old-German idea of law is characterized by its production of a remarkable diversity of juridical communities with many gradations in the bond of solidarity among the members, with their own autonomous legal order not derived from the state, in which the individual and the community are reciprocally interrelated and interdependent. “German corporate personalities were not uncommon particularities, thus appearing to be exceptions to the rule that ‘as such’ only a human being could be a legal person; rather, they were given with the idea of law, for without their presence the German idea of law itself would have been eliminated” (Das Deutsche Genossenschaftsrecht, p. 40).

In German law Gierke distinguishes corporations (Körperschaft), legal communities (Gemeinschaft) and foundations (Anstalt). Characteristic of the corporation is the corporate unity (Gesammtpersönlichkeit). That is to say: “We are dealing with a corporation … when the immanent unity of a collectivity is recognized and acknowledged to be a person” (Das Deutsche Genossenschaftsrecht, p. 829). The legal community comprises all juridical communal relationships which have not been united into a corporate unity independent of its members. These may vary on a rising scale from simple co-ownership and shared property, as in the societas, to real communities with internal juridical rulemaking, which, however, lack a unity independent of its members. In these “the community-members are not members of an independent higher organism, but only partners in a common legal relationship” (Das Deutsche Genossenschaftsrecht, p. 924). Gierke also employs the term Gesellschaften (associations) for these communities while the type of ownership obtaining here is characterized by the term “gesammter Hand” (joined hand), unlike corporate property which he calls “Gesammteigentum” (Das Deutsche Genossenschaftsrecht, p. 925, note 1).

With the term “Anstalt” (foundation) Gierke refers to “organizational unities” (“Verbandseinheiten“) whose independent life flows from a source external to the united individuals; dissociated from their physical bearers and invested with proper personality” (Das Deutsche Genossenschaftsrecht, p. 959).

In addition to these three types of legal organizations all manner of transitional forms may be found. Thus the state must not simply be classified as a corporation “since it may come to existence not only as the highest realization of the concept of Körperschaft but also as the highest instance of the concept of Anstalt, while it may also include a mixture of corporative and foundational elements” (Das Deutsche Genossenschaftsrecht, p. 831). The state can be a corporation, but can also lack every trace of it. “The corporate state may be characterized as a political commonwealth (Gemeinwesen), whereas the “foundational” state may be characterized as authority-state (Obrigkeitsstaat) …” (Das Deutsche Genossenschaftsrecht, p. 831). In addition, various transitional forms may be found. The idea of the constitutional state proper to the old-German idea of law consists precisely in this that the “foundational” state with its “absolute” authority should be combined with corporative elements. “In establishing the modern constitutional state, we have adopted the absolute state’s hardwon [sic] political unity; but we have relayed this side of that state (sc. the political unity) to the people as it is corporationally organized” (Das Deutsche Genossenschaftsrecht, p. 861).

In addition to the corporate state Gierke reckons the “municipality” (Gemeinde) and the private corporation (Genossenschaft) among the corporations. The former “is a compulsory organization (Zwangsverband) existing in the territory of the state for public purposes; it has its own personality positioned between the central government (höchste Allgemeinheit) and separate individuals (Das Deutsche Genossenschaftsrecht, p. 862; see also p. 865). The Genossenschaft (private corporation) comprises all corporations other than state and municipality. It rests on a voluntary organization of the members, has its own internal legal order, in which as a rule the general assembly of members serves as highest juridical organ, and functions as an independent juridical unity (Gesammtpersönlichkeit) with respect to both the members and third parties. Cf. Das Deutsche Genossenschaftsrecht, p. 875 ff., where we find a brilliant and highly interesting analysis of the internal corporate law of the Genossenschaften.

Gierke views corporations as social realities, as real living organisms on an equal footing with private persons. In his renowned rectorial address of 1902, entitled Das Wesen der menschlichen Verbände he, like Beseler before him, levelled an intensive attack against the individualistic fiction-theories of corporate personality, and on good grounds defends the thesis that the state and the non-state corporations such as the church, the firm, the association etc., lead a real existence despite the mutations of their members and subjects. To counter the thesis that only human persons are perceivable to the senses and that social collectivities are nothing but collections of individuals, Gierke posits that the human personality in its spiritual unity and identity, despite changes in the sensorily perceptible body, is not perceivable to the senses either. “Does the real coincide with the sensorily perceptible? He who would maintain this idea has not yet passed beyond the threshold of scientific self-reflection” (menschliche Verbände, p. 21).

Entirely in keeping with the organological bent of the Historical School Gierke thinks of the corporation as a living organism, as a corporeal-spiritual unity comparable to the individual human being. “Only we view the social whole just like the single organism as something living and subsume social organizations along with individual beings under the generic concept of the living organism” (menschliche Verbände, p. 18). Although he expressly warns against an exagerated [sic]elaboration of this organic theory because social organisms are characterized by their own internal legal organization (constitution) with corporate organs, corporate rights and duties (which are obviously not present in the human organism), still Gierke at this point fails to appreciate that the human personality transcends all temporal societal structures so that it may never be classified with the latter under the general concept “living organism.” That the irrationalistic universalism of the Historical School has left its mark on Gierke’s thinking is plain when we read: “It [the organic theory] asserts the real existence of totality-organisms (Gesammtorganismen), whose parts are the human beings, above particular organisms” (menschliche Verbände, p. 15), and also when he posits that the non-state organizations are but (lower) parts of the state-organism. “A rich system of social-legal norms, finally, regulates the incorporation of lower social organisms into higher ones, and of all of them, finally, into the sovereign commonwealth (Gemeinwesen)” (menschliche Verbände, p. 32, 33). Here Gierke fails to recognize that non-state organizations can never be autonomous components of the state-community. This view again endangers the independence and irreducibility of internal corporate law over against the public law of the state. Hence Gierke, in his extremely instructive treatise on the Grundbegriffe des Staatsrechts und die neuesten Staatsrechtstheorien (1874) could write: “Now the state, however, is only the most important among the organs of legal rulemaking. Other corporate organizations too produce autonomous law. Furthermore not all law is declared by the authorities of the state-community, but the popular community (Volksgemeinschaft) and all other communal spheres (Gemeinschaftskreise) can continually produce law directly by activating their legal consciousness irrespective of their political organization. As soon as a state exists, however, neither autonomous law nor customary law can carry through its legal validity without either explicit or implicit acknowledgement by the state. Still, to acknowledge or to tolerate is something other than to create” (p. 31, 32). At this point Gierke again falls back on Bodin’s traditional concept of state-sovereignty.

On the other hand Gierke was acutely aware of the mutual irreducibility of civil law (Individualrecht) and the non-civil, internal “social law” (Sozialrecht) of the political and non-political corporations (Deutsches Privatrecht (1895), p. 26, 27). Accordingly he observes that the internal legal relation of a corporate organ to the corporation itself differs entirely from civil-legal representation, so that these two are not to be identified (Das Deutsche Genossenschaftsrecht, II, p. 882). And when Gierke, in his well-known discourse Die soziale Aufgabe des Privatrechts (1889), writes: “Our civil law will be more social, or it will not be at all” (p. 45) then he by no means effaces the distinction between civil law and non-civil, internal social law of political and nonpolitical corporations. He only defends that civil law must get rid of its individualistic tendencies, which (he thinks) stem from Roman law, by incorporating modern principles of juridical morality (the prohibition of abuse of subjective rights; the introduction of strict liability in law of torts etc.) and by taking cognizance of non-civil social law of matrimony, family, and free corporations. Then civil law can be serviceable to the “social idea” which, according to Gierke, is firmly rooted in old-German legal consciousness.

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[1] Cf. H. Dooyeweerd, “De bronnen van het stellig recht in het licht der wetsidee,” Antirevolutionaire Staatkunde (quarterly), 1930, pp. 234 ff. especially in view of Beseler’s System des gemeinen deutschen Privatrechts (1873).

[2] See H. Dooyeweerd, “De bronnen van het stellig recht,” Antirevolutionaire Staatkunde, p. 247.

[3] See Gierke, Johannes Althusius und die Entwicklung der naturrechtlichen Staatstheorien, (Breslau: M. & H. Marcus) 1880, 2nd. ed. 1902; Die Grundbegriffe des Staatsrechts und die neuesten Staatsrechtstheorien, (Tübingen: J.C.B. Mohr) 1874, 2nd. ed. 1915; Das Wesen der menschlichen Verbände, (Darmstadt: Wissensch. Buchgesellschaft) 1902, 2nd. ed. 1954, and Deutsches Privatrecht, 3 vols. (Leipzig: Duncker & Humblot) 1895-1917.