Spring-Summer Serial 2012.
Chapter 9: CIVIL SOCIETY
By Alan Macfarlane.
THE ESSENCE OF modernity is the elimination of all three traditional means of enforcing co-operation – kinship, an absolutist State and an absolutist Church. Yet modern societies, if anything, need more self-sacrifice of the individual for the general good than ever. How can this be achieved?
The solution is not merely the division of labour; ‘organic solidarity’ as Durkheim called it, or the market mechanism as Adam Smith or Mandeville put it. This division of labour or organic solidarity does not generate the strong feelings which is essential to change enlightened self-interest into a striving for wider goals and the social good.
What is needed is a multitude of ‘artificial’ groupings to make joint activity possible, as with a games’ team or orchestra. As Tocqueville pointed out, the need to get things done meant that the English – and even more so their offshoot the Americans, joined together. ‘That being so, the need to club together is more generally felt, because the urge to get things is more general and stronger’.1 As Pierre Maitland observed, ‘the French think in terms of family and the nation, the English tend to think in terms of the individual and society’.2 In other words, the constituent element was the individual, not the group, yet the individuals formed a society or ‘Civil Society’ through numerous associations.
THE ENGLISH PROPENSITY to form into clubs and associations has been noted by many. Just as the English gave the world team games, so they gave the world many of its associations – Cubs, Brownies, Girl Guides, Boy Scouts, Salvation Army, Oxfam, Samaritans, Amnesty International, Rotarians, Independent Order of Oddfellows and many others. To this we might add many other institutions – the political clubs, the Royal Society and British Academy, the Trades Unions and the BBC. All are associational entities within this associational culture
Just in relation to the delimited field of nature and travel, Veliz notes how the English have invented ‘a numerous and vigorous progeny of mountaineering clubs, geographic societies, yachting associations, hang gliding federations, botanical gardens, zoological societies, societies royal for the prevention of cruelty to animals, wilderness societies, gardening subcommittees, conservations societies, green parties, angling clubs, landscape painting societies, animal liberation zealots, bird-watching clubs, bush-tucker clubs, four-wheel-drive associations, Antarctic societies, and international associations for the protection of the kangaroo.’3
Sometimes the ‘clubs’ were informal – a group of like-minded friends. ‘The English always conduct their business round a dinner-table; it is there that they are happiest and most liberal.’4 Sometimes it was an instituted club like the political, social, scientific, academic and other clubs which have for long multiplied across England. These clubs did not take over the individual. A member, like a games player or member of an orchestra, retained some of his or her own autonomy as a member – but also collaborated with others.
Tocqueville noted this preservation of individual liberty combined with membership. ‘On reflection I incline to the view that the spirit of individuality is the basis of the English character. Association is a means suggested by sense and necessity for getting things unattainable by isolated effort. But the spirit of individuality comes in on every side; it recurs in every aspect of things’. This need to join into associations to attain certain ends Tocqueville found very different in England from the situation in France; the spirit ‘prompts people to pool their efforts to attain ends which in France we would never think of approaching in this way. There are associations to further science, politics, pleasure, business…’5
Tocqueville also observed the paradox that such clubs both merged people’s personalities to a certain extent, but did this by excluding others. ‘Example a club; what better example of association than the union of individuals who form the club? What more exclusive than the corporate personality represented by the club? The same applies to almost all civil and political associations, the corporations.’6
Uncharacteristically, this puzzled him. ‘I cannot completely understand how “the spirit of association” and “the spirit of exclusion” both came to be so highly developed in the same people, and often to be so intimately combined’.7 Yet it seems fairly obvious that identity and mutual solidarity is largely created by setting up symbolic boundaries in opposition to others.
Usually the ‘we’ and the ‘they’ are kinship or caste groups. In England it is football supporters, members of a College, members of a particular darts team, or members of a particular business or social club. What had been a central principle in England where there were also other ways of unifying people – an old country with class, regional and other unifiers – became even more important where unifying institutions were stripped away in the new, individualistic and egalitarian country of America. ‘The English often perform great things singly, whereas the Americans form associations for the smallest undertakings. It is evident that the former people consider association as a powerful means of action, but the latter seem to regard it as the only means they have of acting’.8
A century earlier, Rochefoucauld had observed the importance of associations. ‘In every county, every town, and every country place in England there are clubs. This is perhaps one of the soundest institutions and one which is evidence of the confidence in the general probity which prevails – quite apart from the benefit it confers upon country districts.’9 Amongst others, he noted the presence of mutual assurance funds which would later become the Building Societies.
It is an admirable thing for the peasants, uncultivated people who have to earn their living by manual toil, that they should have sufficient trust in the honesty of a society to put a portion of their money into the common fund and to be certain that they will get real help from it when occasion arises. This trust is general – one hears nothing of any instances in which it has been betrayed, either by re quests from men not really ill or by a failure to distribute benefits on the part of those responsible for the administration of the funds.10
Here is a list of some of the basic features of the clubs and associations which now form the bedrock of British social structure.
- They are based on achievement rather than ascription.
- They are based on contract (voluntary, revocable, exchange of benefits) rather than status (involuntary, irrevocable, innate qualities).
- They are of limited purpose/ends – with a particular goal or set of goals – not generalized but specific.
- They are selective – only certain people are members of any particular one – though they may be replicated by competing clubs.
- There may often be an implied or explicit competition with others of the same kind – as in games, music and education.
- They have a bureaucratic organization to run them – chairman, secretary, bursar, and committees.
- They often own assets – courts, buildings, and meeting rooms.
- They often have symbols – crests, badges, ties, and mottoes.
- Present members select new members by voting for or against proposed candidates.
- They are not formally associated or controlled by the State.
- There may be specific criteria which a person has to have to be elected – wealth, gender or skill.
- They collect membership fees and subscriptions to pay for their activities.
- They have a name and a history.
- They are usually face-to-face – the members know each other (as opposed to the ‘imagined communities’ of nations).
- They limit themselves and do not interfere in other aspects of their member’s lives.
- They have an explicit set of rules of behaviour.
- They can and do expel members who break these rules.
- A strong character (for example Baden-Powell – the Scouts, or John Wesley – the Methodists) often invents them.
- They can border on any kind of activity, including crime but are usually legal.
- They tend to endure for some years, and sometimes for centuries.
My own life illustrates the importance of these associational groupings.11 Since childhood, my life has been a constant experience and training in joining and performing in clubs and groups – teams, dormitories, houses, colleges, departments.
WE MAY WONDER how this unusual associational world grew up on this island. Here we will turn to a more technical history of the origin and effects of these groupings. In the thirteenth century, arising from earlier roots, a legal accident occurred in England that was to change the world we live in.12 Lawyers were, as ever, trying to find a way round a tax regime. When a wealthy man died, his landed property, held in the strict feudal system directly of the King, was forfeited back to the Crown. In order for his heirs to re-claim it, they had to pay a heavy death duty on the estates. Naturally the rich and powerful did not like this. Their legal advisors saw that the problem could be avoided if they made the man at his death no longer the owner of the property. If he did not hold the property at death, the Crown could not seize it and insist on a tax before it passed on to his heirs.
So the lawyers invented the device of the Trust. A group of friends of the property holder were chosen and the estate was legally conveyed to them. They held it ‘in trust for the use of another’. It was legally theirs to do with what they liked, but the owner trusted them to pass it on at his death to his heirs and to carry out his wishes in whatever way he had privately told them.
The Trust created a strange and anomalous thing. Trustees were appointed to work together to hold and administer property and to take collective decisions. The Trust had a name, a separate existence, a body that existed through time. So it was technically a ‘corporation’, a ‘body’. Yet it had not been set up by the State, it had not been ‘incorporated’ or licensed by the State with a formal document. It had been set up by a group of private citizens, yet it was recognized by national law.
Such entities were threatening to the State if they became powerful since trustees could make their own rules. It also allowed citizens to work together and create alternative loyalties. Consequently trusts were banned during the French, Russian and Chinese revolutionary periods, and by Mussolini and Hitler. In England, Henry VIII tried to destroy them but it was too late. Abolished for a few years, the Trusts were restored by lawyers, who claimed that the late King must have misunderstood the effects of what he had done.
There were diverse effects of this revolutionary innovation of the new legal device. One was in contributing to political freedom. One benefit of the trust was to help keep the judiciary independent. Lawyers were trained, and found their social and moral life sustained, by the Inns of Court. If these had been appropriated by the Crown through incorporation, for example, the great struggle between the Common Lawyers and the Crown in the seventeenth century might have turned out differently. More generally, the constraints which the law put on the tendency for power to grow were dependent on the independence of the judiciary, as Montesquieu and Tocqueville had noted.
ANOTHER IMPORTANT AREA was in the right to political associations. There were the various political clubs, essential to the balance of British politics. There were also numerous other political associations set up for particular purposes. Maitland mentioned in passing ‘those political societies which spring up in England whenever there is agitation: a “Tariff Reform Association” or a “Free Food League” or the like’. On several occasions he mentions Trade Unions as one of the fruits of the right of free association arising from the idea of the trust.13 The idea of a legal, unincorporated, association of free people pursuing political ends was essential to democracy.
Another effect Maitland noted was on the de‑centralization of power and the autonomy of local and regional bodies. He believed that the ‘English county’ was one example of an unincorporated, yet existing, body.14 It was this which prevented it becoming merely a servant of the central government.
All power tends to corrupt, but it does so far less if the power is not looked on as the personal property of the powerful, but rather as a temporary force held ‘in trust’ for others. This, Maitland, suggests, is what the idea of the Trust and the trust it entailed performed: ‘In the course of the eighteenth century it became a parliamentary commonplace that “all political power is a trust”; and this is now so common a commonplace that we seldom think over it. But it was useful.’15
Above all it permeated the delicate relationship between the King and the people, enabling a new kind of constitutional monarchy to emerge. ‘Possibly the Crown and the Public are reciprocally trustees for each other; possibly there is not much difference now‑a‑days between the Public, the State, and the Crown, for we have not appraised the full work of the Trust until we are quitting the province of jurisprudence to enter that of political or constitutional theory.’16 This was an established fact by the later nineteenth century and Maitland briefly suggests how the application of the concept of trust had spread and influenced events in the aftermath to the confrontations between king and people of the seventeenth century.
Having established a concept of trust between monarchy and people by the eighteenth century, the idea found a further extension and application as a metaphor to hold together the largest Empire the world has ever known. A political example of how this worked was in relation to India. Maitland shows how the East India Company, which in practice ruled India, was replaced by the British Crown which held India as a Trust. The transition was made much easier by the Trust concept.
This was just part of that wider concept that all power was held in trust. The whole of the British Empire came to be seen as held ‘in trust’ for the peoples themselves, until they were ready to take over.
Open an English newspaper, and you will be unlucky if you do not see the word “trustee” applied to “the Crown” or to some high and mighty body. I have just made the experiment, and my lesson for today is, that as the Transvaal has not yet received a representative constitution, the Imperial parliament is “a trustee for the colony.” There is metaphor here.
Maitland noted government ministers of his and earlier times saying that Victoria’s government ‘is a trustee for “the whole empire”‘.17 Perhaps this is part of the explanation for Tocqueville’s question as to how such a small country as England could hold such a large Empire. The mechanism of the trust both gave the metropolitan government confidence and an easy conscience and allowed elastic forms of delegation of power without posing a direct clash between the centre and the periphery.
Equally important, as Maitland realized, were the effects of the possibility of having ‘non‑incorporated bodies’ in the field of religion. He shows how the trust became a key defence of religious nonconformity and the sects. Any religious organization needs to form itself into some kind of permanent group. For instance, it needs a place of worship. Since such buildings had to be funded and maintained, how was this to happen? The State, associated with a Catholic or Anglican settlement was hardly likely to give them corporate status. What the Methodists, Baptists, Quakers and others did was to set up trusts. Groups of trustees ran their affairs and were recognized by the law. As Maitland pointed out, it is likely that without this legal loop‑hole, the whole of nonconformity would have been crushed. Religious liberty and the trust were closely linked. It is intriguing that the Catholic Church in England is still a registered trust. For example, the Catholic diocese of Plymouth is registered as charity number 213227 by the Charity Commission.
That England – and later America – were lands of toleration and sectarianism, exhibiting that mysterious relation between private and public which puzzled Tocqueville, but which he saw as a central feature of America, is partly explained by the device of the Trust. The presence of the Trust explained why, if one searched through the voluminous records of Common Law, ‘in the hope of discovering the organization of our churches and sects (other than the established church) you will find only a few widely scattered hints.’18 It was equity and the trust that provided the infrastructure for the distinctive Protestant sectarianism of England and America.
LINKED TO RELIGIOUS freedom was economic liberty. In terms of economic development, a device was needed which would allow people to come together to co‑operate in some venture of a new kind. This was the era when new insurance facilities were needed. It was a time when traders and manufacturers needed to form themselves into joint‑stock arrangements and to issue shares. The law of trusts made all this possible allowing joint‑stock arrangements and limited liability.19 In all these cases the entity was recognized by the law, yet did not draw its strength directly from the Crown. It was a free association of individuals who had bound themselves together.
Maitland describes two examples in some detail. He traces the history of the development of a late seventeenth century coffee house owned by Edward Lloyd, embodied in the mid‑eighteenth century in a small trust fund and later, in 1811, in a trust deed with eleven hundred signatures. Thus was developed the great insurance firm of Lloyds. His second example was the London Stock Exchange. He describes how, in the eighteenth century, it grew from people meeting in a coffee house into a group of trustees. By the later nineteenth century it was vast and wealthy. In 1877 some people recommended that after all these years as a trust it should be incorporated. ‘And so the Stock Exchange was incorporated? Certainly not. In England you cannot incorporate people who do not want incorporation, and the members of the Stock Exchange did not want it.’20
One of the advantages of the fact that many of the pivotal economic institutions in England from the sixteenth century developed as trusts would have been appreciated by Adam Smith. New economic enterprises – for example, long distance trade, or marine insurance, or making a new product – are risky. The individual needs protection, some limitation of liability and mutual assurance. Yet if the protection is given by the government, it very often takes the form of a monopoly. As Smith pointed out, this could easily turn over time into something that would inhibit creative development. Yet it was of the essence of trusts that they were not state monopolies. If someone else wanted to set up a marine insurance company or a building society the trustees could not prevent them. It provided a protection for the members without inhibiting newcomers. It was thus the ideal situation for competition with protection, for uniting individuals in a way that did not inhibit other individuals. It is difficult to see how the wealth of industrial England could have been created without the trust concept.
A third area which Maitland touched on was in relation to social and intellectual liberties. He noted that a foreigner thinking of England would have noted ‘you have been great makers of clubs.’ Many were of pivotal importance in political, legal and social life. For instance, ‘every judge on the bench is a member of at least one club’. Maitland took as an example the Jockey Club. ‘I believe that in the eyes of a large number of my fellow‑countrymen the most important and august tribunal in England is not the House of Lords but the Jockey Club; and in this case we might see “jurisdiction” ‑ they would use that word ‑ exercised by the Verein [club] over those who stand outside it. I must not aspire to tell this story. But the beginning of it seems to be that some gentlemen form a club, buy a race‑course, the famous Newmarket Heath, which is conveyed to trustees for them, and then they can say who shall and who shall not be admitted to it.’ Newmarket Heath had been purchased by the Jockey Club ‘without asking the King’s or the State’s permission. He also referred to ‘your clubs and those luxurious club‑houses which we see in Pall Mall.’21 But there were numerous others.
Clubs were also closely related to intellectual activities – for example, the Royal Society, the British Academy, and numerous working men’s clubs were of enormous importance in furthering science and learning. Maitland noted that ‘many learned societies’, including the one he had founded, the Selden Society, were run by trustees, as were key institutions such as the London Library.22
A FINAL AREA which Maitland sees as important is what he calls ‘social experimentation’ and which we might roughly term ‘innovation’.
First and last the trust has been a most powerful instrument of social experimentation. To name some well‑known instances: it (in effect) enabled the landowner to devise [leave] his land by will until at length the legislature had to give way, though not until a rebellion had been caused and crushed. It (in effect) enabled a married woman to have property that was all her own until at length the legislature had to give way. It (in effect) enabled men to form joint‑stock companies with limited liability, until at length the legislature had to give way. Thus the device of the trust affected not only individuals, but categories ‑ married women, the poor (through boards of guardians, Poor Law funds and charity), the young.
The way it raised the status of married women by protecting their property particularly impressed Maitland. In general it allowed a flexibility and vagueness which allowed change: ‘let us observe that Englishmen in one generation after another have had open to them a field of social experimentation such as could not possibly have been theirs, had not the trustee met the law’s imperious demand for a definite owner.’23
SUMMARIZING MAITLAND’S ILLUMINATING insight into the solution to Tocqueville’s puzzle concerning the origins of associations, we can say that in England from about the thirteenth century there began to develop a society which had various essential constituents. It had a powerful Crown and a ruling group in parliament. The centre was strong ‑ but it was limited in its power by two other levels. In the middle was a crowd of unincorporated bodies, to a certain extent ‘nobodies’, in Maitland’s phrase, but nobodies which are the essence of what would now be called ‘Civil Society’. The secret, anti‑State, organizations (mafia, triads) which have been the bane of most governments were not necessary. The rights of association, so important later for the trades union and the labour movement, allowed people to form into groups. They were encouraged to put their energies into open activity.
Thus through the widening development of the concept of the Trust, there also, indirectly, developed a world of trust and openness, which is the basis not only of capitalism but also for modern science.24 Maitland points out that this is such a large feature of the development of English civilization that it has become invisible. ‘Now we in England have lived for a long while in an atmosphere of “trust,” and the effects that it has had upon us have become so much part of ourselves that we ourselves are not likely to detect them. The trustee…is well known to all of us, and he becomes a centre from which analogies radiate.’25
The whole system is based on trust, both presuming a widespread level of trustability and, by that assumption, creating it. ‘If I convey land to you as a trustee for me, or as a trustee for my wife and children, there is not merely what our law calls a trust, there really is trust placed by me in you; I do trust you, I do place confidence, faith, reliance in you.’ In many civilizations such trust in unrelated individuals would not be easy. Nor would it be easy to find people who were prepared, for no obvious reward, to carry out such duties, for ‘a very high degree not only of honesty but of diligence has been required of trustees’.26 The whole wide concept of public and disinterested service for others and for the community is related to the development of the trust.
THE EFFECTS OF trust were combined with the image of the gentleman and the culture of pubs and clubs described in earlier chapters. When all these were joined together they provided a social context which made modern science and technology possible, as we shall see when we come to investigate ‘Knowledge’. They also made the development of a modern capitalist economy possible. Much could be said about this, but I shall confine myself to some recent comments by Joel Mokyr.
Mokyr writes, ‘The emergence of a plethora of networks, clubs, friendly societies, academies, and associations created a civil society, in which the private provision of public goods became a reality and created what might be called a civil economy… Roads, harbors, bridges, lighthouses, river navigation improvements, drainage works, and canals were initiated through private subscriptions… Voluntary associations founded hospitals, schools, orphanages, prosecution societies, and charitable relief committees, as well as turnpike and canal trusts. Amateurs provided local administration and justice.’27
The universal problem which societies face in trying to create public trust and philanthropy was solved to an unique extent by this development of civil society.
What made this trust possible were social networks such as permanent members of taverns, coffee-houses, and inns, friendly societies, religious communities, Masonic lodges, and similar organizations in which businessmen and craftsmen got together and exchanged information and gossip. In eighteenth-century Britain, to be a gentleman one had to be sociable, to be part of a community…. Informal institutions, in other words, allowed society to operate far more efficiently than it would if every player had … displayed selfish and uncooperative behaviour. The British entrepreneur, far from being a ruthless egotist, was very much part of a shared value system… The typical entrepreneur did his best to come across as trustworthy. Gentlemen, ideally, were men without occupation and presumably generous and not driven by greed.’28
In brief, it is impossible to understand the emergence and continuation of the modern world on the small island of Britain without considering the role of civil society. Without the trust and co-operation which brought together this individualistic and mobile peoples, the developments in political integration through parliamentary democracy, the uniquely plural and tolerant religious settlement, the innovative technologies and superb scientific achievements, let alone the sports, games, literature and arts would have been impossible to achieve.
A video of the lecture on which this chapter is based:
Chapter 9 of The Invention of the Modern World by Alan Macfarlane.
© 2012 Alan Macfarlane. All rights reserved.
NOTES (please see the bibliography for citation details):
- Tocqueville, Journeys, 75. ↩
- Quoted by Barker, Character, 39. ↩
- Veliz, Gothic, 105. ↩
- Rochefoucauld, Frenchman, 245. ↩
- Tocqueville, Journeys, 74-5. ↩
- Tocqueville, Journeys, 74-5. ↩
- Tocqueville, Journeys, 74. ↩
- Tocqueville, Democracy (abridged), 199. ↩
- Rochefoucauld, Frenchman, 242. ↩
- Rochefoucauld, Frenchman, 246. ↩
- See my ‘Understanding Life Backward‘, The Fortnightly Review, March 2012. ↩
- This summary is taken from Macfarlane, Letters, Letter 16; for a detailed account, Macfarlane, Making, chapter seven. ↩
- Maitland, Collected, III, 387; III, 400. ↩
- Maitland, Collected, III, 400. ↩
- Maitland, Political, xxxvi. ↩
- Maitland, Political, xxxvi. ↩
- Maitland, Collected, III, 403; Political, xxxvi, note 3. ↩
- Maitland, Collected, III, 369. ↩
- Maitland, Collected, III, 389‑92. ↩
- Maitland, Collected, III, 372, 374. ↩
- Maitland, Political, xxxiii; Collected, III, 378, 376, 385, 377. ↩
- Maitland, Collected, III, 388. ↩
- Maitland, Collected, III, 356, 283. ↩
- For the necessity of trust in economic development, see Fukuyama, Trust; for science, Shapin, Social. ↩
- Maitland, Collected, III, 402. ↩
- Maitland, Equity, 44; Collected, III, 352. ↩
- Mokyr, Enlightened, 381. ↩
- Mokyr, Enlightened, 387. ↩