‘We Want to Live’: Metaphor and Ethical Life in F.W. Maitland's Jurisprudence of the Trust

Publication Date01 March 2016
Date01 March 2016
AuthorAdam Gearey
DOIhttp://doi.org/10.1111/j.1467-6478.2016.00743.x
JOURNAL OF LAW AND SOCIETY
VOLUME 43, NUMBER 1, MARCH 2016
ISSN: 0263-323X, pp. 105±22
`We Want to Live': Metaphor and Ethical Life in
F.W. Maitland's Jurisprudence of the Trust
Adam Gearey*
This article argues that reading F.W. Maitland's jurisprudence of the
trust alongside Hegel's philosophy of social recognition offers insights
into the way in which metaphors `structure' the modes of ethical life
that inform legal and social institutions. Conventional ways of reading
Maitland (and John Neville Figgis) have obscured the affinities their
work shares with Hegel, and limited the impact of a way of thinking
about law and society.
`[A] theme from the borderland where ethical speculation marches with
jurisprudence.' F.W. Maitland
1
`On the crossroads between magic and positivism.' Theodore Adorno
2
INTRODUCTION
The main thesis of this article may seem somewhat quixotic. I will argue that
reading Maitland's jurisprudence through the Hegelian concept of social
recognition can tell us something significant about law and metaphor. But,
why read this most English of historians through German metaphysics? My
105
*School of Law, Birkbeck College, University of London, London WC1E
7HX, England
a.gearey@bbk.ac.uk
Thanks to Piyel Haldar for perceptive comments on an earlier version of this article; and
to David Gurnham and the anonymous reviewers whose advice also helped to improve its
structure and focus.
1 F.W. Maitland, `Ethical Personality and Legal Personality' in The Collected Papers
of Frederick William Maitland, ed. H.A.L Fisher (1911) 304. The account of
sittlichkeit is taken from G.W.F. Hegel, The Phenomenology of Spirit (1967) 466±82.
2 Theodore Adorno in a letter to Walter Benjamin, 10 November 1938, cited by G.
Rose, The Melancholy Science (1978) 41.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
argument will be that the received ideas about the differences between
Maitland and Hegel conceal a much greater affinity. Reading Maitland and
Hegel together can direct our attention to an understanding of metaphor that
must inform any proper engagement with law, society, and ethics.
Hegel's thinking of the dialectic of recognition shows how an inherently
metaphorical process articulates the ethos of legal institutions. Thus,
although it is something of a free translation, we will use the Hegelian
notion of sittlichkeit (or the social world in which `we' recognise each other
as citizens) as a way of thinking about the ethical life that is articulated by
Maitland's idea of the trust. As we will see, thinking about ethical life is
inseparable from the study of metaphor. In fact one might say that ethical life
is defined by those metaphors by which we live. Maitland understood this
truth. To read a metaphor is to be able to work between the literal and
figurative, between the hidden and the revealed. But, as Maitland was also
careful to point out, it is not `always easy to say where metaphor begins'
3
and ends. The correct reading of history requires sensibility and discrimi-
nation. Indeed, we will pick up on Maitland's resistance to German meta-
physics as central to an issue of style that is fundamental to his writing.
Maitland's work is significant precisely because his writing has a certain
`grain of voice'. He is concerned with the presentation of a particular vision
of equity to his fellow Englishmen. We will draw on Maitland's exercise in
language to make some final points about the reception of his work in the
early decades of the twentieth century. In particular we will examine how
those developing a sociological jurisprudence misunderstood his relationship
with Hegel and thus failed to appreciate the centrality of metaphors to the
way in which we live the law.
The first section of the article focuses on notions of social recognition and
ethical life. We will make reference to thinking on metaphor to show how
the theory of sittlichkeit provides a distinctively `modern' form of the social
bond. Elaborating our understanding of social recognition, we will show how
metaphors are central to the struggle over the definition of a social ethos.
These arguments extend into Maitland's opposition between the artificial
idea of corporation and the law of trust. Whilst Roman law thinking on the
fiction of corporation feeds into theories of the social contract, the trust
articulates a form of ethical life that rivals that great Latin fiction of the state.
The trust provides a legal `shell' which nurtures the genius of civil life. A
final section will engage with the reception of Maitland through sociological
jurisprudence and suggests that any development of his insights must take
seriously the concern with a social ethos in which legal institutions are
rooted.
106
3 Maitland, op. cit., n. 1, p. 403.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT