ABSTRACT
The refusal of many lawyers to recognize in churches, as such, any real rights of life and development is widespread and inveterate; it cannot be attributed merely to anti-clerical prejudice, strong though that has always been in the profession, for it is based on principles which must also deny the similar right to other nonreligious societies…. It is not specially English, but European, and it is of the nature rather of an unconscious presupposition than a mere theory. For those holding the current view seem almost unable to conceive what churchmen mean by claiming any freedom for religious bodies. Thus it would appear that the causes of this antipathy are not new, and that we must seek for the historical origin of this prejudice far back in history. It will be… [my] purpose…to try and show how it arose, and to urge that it relates originally to a condition long since passed away, and that we ought to demand a view of politics which has more vital relation to the facts, instead of what is little more than an abstract theory deduced from the notion of unity…. I cannot overestimate my debt to that great monument, both of erudition and profound thought, the Das Deutsche Genossenschafts Theorie, of Dr Otto Gierke… Another work of Dr Gierke, Die Genossenschafts Theorie, is less well known in England, but it is worth studying. There it is attempted to show how under the facts of modern life the civilian theory of corporations is breaking down on all hands, and that even in Germany, in spite of the deliberate adoption of the Romanist doctrine, the courts and sometimes even the laws are being constantly driven to treat corporate societies as though they were real and not fictitious persons, and to regard such personality as the natural consequence of permanent association, not a mere mark to be imposed or withheld by the sovereign power. The
value of all these books is the greater for our purpose that they are in no sense ecclesiastical in tone, and that the English introduction was the work of one who described himself as a ‘dissenter from all the Churches’. More directly concerned with ecclesiastical liberty, but at the same time universal in application, are some of the essays by Acton in the volume on ‘Freedom’.
