Eric Enlow from the Handong University of South Korea writes with some clarifications about corporations and corporate law.  The rest of this post is all from Eric.

I think Daly’s argument misses some important details.  The Berman quote does not demonstrate that medieval law recognized the natural reality of groups to a greater extent than modern law.

First, the Berman quotation deals with canon law, not the general civil law of the middle ages. Thus, it provides no support for the claim that “a corporation in Christendom was not dependent on a grant from the state” unless by “a corporation in Christendom” we mean an ecclesial corporation under the limited jurisdiction of canon law. In any case, with respect to canon law, it would be dependent on a grant from the pope or bishop, not the king.

Second, the Berman quotation is cut off before the end of the sentence; it reads with the missing section in bold:  “any group of persons with the requisite structure and purpose [examples] constituted a corporation . . . without any special permission from a higher authority. ”

But this is true today in the United States as well. No special permission from a higher authority is required to incorporate. Any group with the requisite structure and intent can incorporate without any discretionary, individualized review. Registration is required, but not special permission. In this regard, the availability of corporate status to interested groups is actually far, far, far, far broader than in middle ages in the sense that the requisite structures and purposes recognized — essentially any legal activity — is much broader than the limited structures and purposes suggested by Berman. People can form corporations today inexpensively for any legal purpose and for any duration. 

Third, Berman indicates in the footnote [ftn 40 p. 607] to the citation that he does not mean all groups were granted legal personality. To the contrary, it is explained that all group entities, both (1) those with separate legal personality (like modern corporations) and (2) those without personality like partnerships, joint ventures and trusts were all called ”corporations.” That is, the essential point being made is terminological; all these entities are called “corporations.” He does not state that they all had the distinctive feature of what we mean today by a corporation, i.e. separate legal personality. It’s not that all groups were given legal personality (what we mean by incorporation today); it’s that the term corporation included both legal personalities and non-legal personalities. Indeed, Berman explicitly warns against this mistake noting:  “a conclusive answer was not given in this period to the question as to how far the consent of higher ecclesial authorities was required to invest individual eccleisatical entites with legal personality.”  By contrast, today, the law is clear. We give away corporate legal personality to whoever wants it with no review by higher state officials.

Fourth, the corporate law described by Berman undermines the claim that any corporation had separate legal personality in the modern sense. Berman writes: “the church rejected the Roman maxim that ‘what pertains to the corporation does not pertain to its members.’ According to canon law, the property of a corporation was the common property of its members and the corporation could tax its members if it did not otherwise have the means of paying a debt.” This describes a kind of partnership or agency relation, not separate legal personality. If I am personally liable for the actions of a corporation, then it is not separate from me. If I own its property in common with all other corporate members, then the corporation owns nothing itself.

Fifth, Berman’s own judgment is stated quite plainly that canon law includes both aspects of a natural and artificial theory of groups and that neither theory can realistically be realized purely in a legal system: “It is doubtful that corporate personality in a legal sense can ever emerge solely from within a group; its existence always depends partly on the recognition of it by those outside  . . .  it is equally doubtful that corporate legal personality in a legal sense can ever be imposed solely by action of society or state . . . ”