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Subject Area: Political Theory

Corporations, the People, and Italian Jurists - Leonard P. Liggio, Literature of Liberty, Autumn 1981, vol. 4, No. 3 [1981]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Corporations, the People, and Italian Jurists

J. P. Canning

  • University College of North Wales, Bangor

“The Corporation in the Political Thought of the Italian Jurists of the Thirteenth and Fourteenth Centuries.” History of Political Thought 1(Spring 1980):9–32.

The Italian jurists—civilian and canonist—made a major contribution to the development of corporation theory in political thought. One of the major forms of political corporation which the jurists considered was the independent city-republic which was founded at the time in north and central Italy. To account for this development there emerged a juristic theory of government by the people. Two of the most important theorists of the idea were Baldus of Ubaldis and his teacher, Bartolus of Sassoferrato.

The populus, or citizenry, as Baldus saw it was both a unity and a plurality of human beings. As a corporation it became a distinct legal entity. In joining together into a unity the individuals become a corpus misticum. The populus can act because, while it is an abstract entity, it is also a body of real men.

Medieval jurists took these basic concepts further by maintaining that the corporation, being a unitary entity, is equated thereby with a single individual; thus they arrived at the definition of a legal person. Out of this grew the discussions of “fiction” and “realist” theories carried forward by scholars such as Otto Gierke. Those who argued the fiction theory did so because they disagreed with the conceptual jump of equating the corporation to an individual person.

But the medievalists do not readily breakdown into Gierke's dualism. They were more concerned with the structure of the corporation than with its legal personality. Medievalists did not, for example, use the concept of fiction in a perjorative sense. Jurisdiction lay with the whole corporation, and not just its head.

For Baldus, especially, membership in the corporation transformed a person from being an isolated individual into the role of citizen. This self-governing entity is a natural development rather than a grant from any superior in a theocratic system. The citizen thus has autonomous rights within the populus.

The populus as a corporation is distinguished from the individual in that it is ongoing and thus perpetual, or immortal. Secondly, the populus is a territorial entity comprised of those individuals within a given area.

Recently, Walter Ullmann has stressed the idea of the corporation as a minor, ultimately under a higher authority. This motion is in conflict with the popular sovereignty ideas of Bartolus or Baldus in the larger sense. Structurally, the latter saw the corporation as embodying original governmental power exercised through general assemblies and councils of the people, and elected officials ultimately responsible to the people. Such officials may function somewhat as tutors, or leaders of the community, but it does not follow that the corporation is thus a minor.