Roman jurists, corporations and the theory of representation

In approaching the scope and essence of public law, Roman jurists made an important contribution to the theory of representation.

The development of the concept of a state or municipality as an entity existing apart from its members is of fundamental importance. It is probable that jurists made use of the writings of philosophers in developing their ideas, such as the Stoic classification of bodies (corpora) and a body composed of separate elements (a people, a legion and a herd). Another example is the notion of a body whose members change yet which retains its identity.

The notion that a body could retain its identity in spite of changes of membership was the essential background for the jurists' development of a theory of corporations as entities having an existence separate from that of its members and accordingly having rights and duties separate from theirs.

By one philosophical route or another, the jurists appear to have satisfied themselves that there could be such a thing as a body of constant identity yet changing parts. It was then their task to answer the question what legal acts that body should be able to perform, or who should perform those acts for it. There are clear statements recognizing the existence of a corporation: money owed to a collectivity (universitas) is not owed to the individuals who comprise it (and vice versa); such things as theatres and stadia belong to the universitas and not to the individuals who comprise it.

The jurists also developed notions about representation of the universitas by its 'organs'. Although it is disputed which corporate bodies were regarded as having capacity to be represented in this way, it is quite clear that this was true of municipalities.

The praetor's edict itself provided remedies to be used in actions for and against municipes. The municipality could be represented both by its magistrates and by agents specially appointed to represent it (adores); their election or appointment was a matter of public law, but they could represent the municipality in private-law transactions. This is the basis of a theory of representation.

[Source: The Cambridge History of Greek and Roman Political Thought (2005), p. 630-631]