Prof. Adam MacLeod argues that churches, corporate entities, and trusts exist independently of government recognition or contract, deriving their existence from the fundamental right to associate and to form private property institutions around certain ends.
“The question is whether churches and other associations of people have an existence of their own, prior to their recognition in positive law, or are instead mere creations of a political sovereign, entirely constituted by positive law as legal fictions. The answer is that they do have existence of their own. This seems quite obvious to most people. The only difficulty is for scholars and other skeptics, namely how to understand the thing that exists.”
“Since at least the rediscovery of Justinian’s Corpus Juris Civilis in the 11th century, the private rights and duties of the Western legal tradition have been shaped by jurists who shared certain convictions: that human beings choose and act freely for reasons, that we find meaning not living moment by moment but instead when we transcend time and place, that we are made to flourish in community, not just in that community that we call the state or nation (though that is important), but first and foremost in those smaller communities within which we realize our most basic and comprehensive good ends, such as business and non-profit associations, schools and universities, estates of co-ownership, and the family.”
“The First Amendment (quite reasonably) prohibits secular courts from predicating their judgments on theological and doctrinal inquiries, and thus from examining the moral and theological purposes of church corporations, as the House of Lords did in the Wee Frees case. State courts are permitted to resolve church property disputes by one of two methods. They may either defer to the highest tribunal within a church or interpret neutral legal instruments of the church that determine ownership, where such instruments exist. Declining The Episcopal Church’s invitation to defer to the national convention’s interpretation of its canon law, the Texas Supreme Court followed black-letter law and awarded judgment to the Diocese.”
“Maitland taught us that use in the common law has a much more expensive meaning than it does in the civil law tradition. The common law term ‘use’ is derived from the law French word oes. That, in turn, is derived not from the Roman term usus but rather from the Latin word opus, for work. Any student of common-law jurisprudence will immediately recognize the significance of this insight. For common law jurists such as Hale and Blackstone, the core and origin of property is not self-ownership in a state of nature but rather is God‘s delegation of dominion to Adam and Eve and their children in equal shares. As the jurists make clear, the office of dominion is an office of stewardship, which has lots of benefits but is primarily concerned about responsibility to labor on the earth and to order it well. From this perspective, use-as-work is the most essential aspect of property.”
“And here is the solution to Maitland’s puzzle. Why is it that beneficial use is the spoiled child of English jurisprudence, while exclusion and alienability are treated as derivative and secondary? The answer is that beneficial use is the whole purpose of having private property institutions. It is difficult to see this when use, exclusion, and alienability are all wrapped up in the fee simple absolute, the comprehensive estate of ownership. It becomes easier to see this when they are separated by a trust.”
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