Revival: Law in the Modern State (1921)

Leon Duguit

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351340113
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

It is perhaps worth explaining why there is a special importance in the present development of the theory of the State. Law, like every social phenomenon, is subject to perpetual change; indeed any scientific study of law must necessarily involve an analysis of the evolution of legal institutions. In a sense, therefore, the trasnformation of the state is also the transformation of its law.

But we must go a little deeper. The real justification of this book is the immediate situation of political theory. Just as every living being has moments in its existence when, even while obeying the general law of its life, it undergoes a change that is especially fundamental in importance, so it is in the history of peoples.

Author's Introduction

IT IS perhaps worth explaining why there is a special importance in the present development of the theory of the State. Law, like every social phenomenon, is subject to perpetual change; indeed any scientific study of law must necessarily involve an analysis of the evolution of legal institutions. In a sense, therefore, the transformation of the State is also the transformation of its law.

But we must go a little deeper. The real justification of this book is the immediate situation of political theory. Just as every living being has moments in its existence when, even while obeying the general law of its life, it undergoes a change that is especially fundamental in importance, so it is in the history of peoples. Everything seems to make it clear that we are at such a stage in the history of the State. We are at a critical period not in any pessimistic sense but in one that is merely descriptive. However little we may like it, the evidence conclusively demonstrates that the ideas which formerly lay at the very base of our political systems are disintegrating. Systems of law under which, until our own time, society has lived, are in a condition of dislocation. The new system that is to replace it is built on entirely different conceptions. Whether those conceptions mark a progress or a decline it is not our business to enquire. A scientific social theory can find no meaning in such terms. It can only point to the fact of significant difference.

It is no narrow change that we are witnessing. There is no legal institution it does not involve. Theories of private law, the family, contract, property, these, no less than the institutions of public law, are deeply concerned. And while this evolution knows no geographical boundaries save those of civilization, it has developed in France with peculiar intensity. It has seemed the mission of France to stand in the forefront of all epoch-making change in institutions and ideas; she holds open the gate through which the sister nations pass. There is thus perhaps a peculiar fitness in the study of these changes from the standpoint of its French significance.

I have elsewhere discussed this change in so far as it touches private law.¹ I propose here to discuss its relation to the theory of the state. Analysis will show that the two transformations are in fact parallel and similar. Not only do they come from like causes but they permit of resumption in an identical formula. A realistic and socialised legal system replaces an earlier system that was at once abstract and individualist in character.

The theory of the state under which the last century civilised peoples the world over have lived was based on principles which many people served with almost religious intensity. They were, so it was contended, entitled to the final loyalty of men. They were a political hinterland won for science. It was a system with an honourable history. It had its Declarations and its Constitutions. The legislation of the Revolutionary period gave to it a full expression in practical terms. That legislation had so profound an influence as to give those principles a unique prestige and special authority.

It is in these texts that the principles of the system are clearly formulated. Two fundamental ideas are the basis of their strength. The one is the theory of state-sovereignty of which the original subject is the nation regarded as a person, and the other the idea of a natural inalienable and imprescriptible right of the individual personality which is opposed to the sovereign right of the state. The nation, so we are told, has a personality distinct from that of the individuals who compose it. It has thus a will naturally superior to the wills of its constituent individuals simply because the collective person is superior to the individual person. This superiority consists in what we call public power or sovereignty. The nation is organized. It has built a government to represent it. That government acts as the agent of the national volition. It thus exercises in the name of the nation a sovereignty of which it cannot be deprived. The state is thus the sovereign nation organised as a government and situated on a definite territory. The state as the organised nation is thus the subject of sovereignty and this public power gives to it the right to exercise a subjective law. It is by virtue of this law that it controls its members. Its commands are the exercise of this law.

Its members are at once citizens and subjects. As a part of the national collectivity which exercises sovereign powers, they are citizens; but since they are subordinated to a government exercising sovereignty in the name of the nation they are also subjects. Constitutional law is thus that mass of regulations dealing, first, with the organisation of the state, and, second, with the relation of the state to its members.² We have thus two unequal subjects of law. We have a superior, a juristic person formulating commands, and subjects obeying those commands. Clearly, therefore, such a constitutional system is in its very nature a subjective system. Its very basis is the subjective right of the state, as a person, to command.

The right of the state, then, is opposed to the subjective right of the individual. It is a natural right, at once inalienable and imprescriptible. It belongs to the individual by virtue of its humanity. It is a right anterior, even superior, to that of the state. For the state was founded to assure men protection for their individual rights. So it was proclaimed in the second article of the Declaration of Rights: "The end of all political association, is to preserve the natural and imprescriptible rights of man." Clearly, therefore, the first rule of constitutional law obliges the state so to organise itself as to secure the maximum protection of the individual rights of every human being.

This recognition of individual rights determines simultaneously both the direction and the limit of public activity. It is in itself the source of all rules regulating the relations of individuals to the state. The state is compelled to protect individual rights; but when the limitation of individual right is necessary to protect the general right the state possesses this limiting power also.

It is compelled to organize its defence against external enemies; for its self-maintenance is essential if the protection of individual rights is to be secured. The state then must organise an armed force for the purpose of war. It must also organise internal order, for it is by internal order that individual rights obtain social protection. For the latter purpose a police-service becomes important.

Finally the state submits itself to an objective law based on the subjective right of the individual. Two consequences flow from its obligation to secure the rights of individuality. In the first place, when legal conflict arises between the state and one of its members, it must be decided by a court that the state has organised with every guarantee of competence and impartiality. The decision of that court must be accepted by the state. In the second place, if a dispute arises between two private citizens, the state again must settle it by a court which offers every guarantee of independence and capacity. A respect for the decision of that court must be made universal. For these purposes the judicial organisation is essential. We have, then, a sovereign power which is the subjective right of the nation organized as a state. That power is limited by the natural rights of the individual. The state as a consequence has the duty of giving the utmost protection to such individual rights. It is therefore compelled to limit those rights in so far as they conflict with the rights of all —an obligation which entails the creation and function of military, police and judicial services. Such, briefly, is the system of public law which, inherited from the past, was formulated with a marvellous precision by the legislation of the Revolution. It is a subjectivist system. To the subjective right of the state there is opposed the subjective right of the individual. Founded upon that right is at once a limitation of sovereignty and the imposition upon the state of certain duties. It is an abstract system; for it is based essentially on the concept of subjective right which is obviously metaphysical in character. It is, moreover, an imperialist or regalian system. It implies that the rulers have control of the power to command the imperium of the nation organised as a state.

The men of the Revolution did not doubt that when they formulated this theory they were laying down eternal principles. It seemed obvious to them that the legislators and jurists of all times and countries would have no other task than the deduction of their logical consequences and the control of their practical application. The result has been very different. Scarcely a century has elapsed before the disintegration of the system is apparent to every one. Its two basic ideas, the sovereignty of the state and the natural right of the individual, are already dead. We see now that both of them are merely abstract conceptions useless for any juristic system that is to be truly scientific. It has long been clear that divine delegation does not explain the right of sovereign power. National delegation is no more satisfactory. The national will is the merest fiction.³ In reality, all that we have is the will of some individuals and that will, even if it be unanimous, is still only the will of a sum of individuals, that is to say, an individual will with no right to impose itself on any one who resists it. So it becomes clear that Rousseau's Social Contract, even if it has been the Bible of several generations, and has inspired the Revolution, is still, with much splendour of style, only a tissue of sophistry. It is clear, too, that man cannot have natural rights in his individual person simply because by nature he is a social being. Man as an individual is a mere creation of the intellect. The very idea of right implies the idea of social life. If, then, man has rights, he can have them only from his social environment, he cannot impose his rights upon it.⁴

We have witnessed in the last half of the nineteenth century an immense economic change. The rigid and abstract system of law constructed by the Revolution can no longer be harmonised with that change. The economists have shown us how in every domain of human activity a national economy has been substituted for a domestic economy. The family can no longer satisfy human needs. A vast organisation, of national extent, based upon the concurrent endeavors of large masses of men, is alone adequate to that purpose. Nor is that all. Scientific discovery and individual progress on the one hand, the complexity of human relations and the interdependence of social life on the other, are to-day so vital that the very fact that some men are wanting in energy affects the whole system. Above all, our most basic needs, our postal system, railway transportation, our system of lighting are satisfied by organizations of such economic complexity that a moment's difficulty in their operation threatens the foundations of social existence. That is why the function of the state is widening so greatly. To organize war, police and justice is no longer adequate. The state must see to it that a whole series of industrial functions are in organised operation. It must prevent their interruption for a single moment. Such is the obligation imposed upon the ruling class by the conscience of our age. Clearly enough, it is incompatible with the idea of sovereignty. War, police, justice—these are the functions that harmonise with such a conception; they are indeed its direct manifestation. But the case is different with industrial service. The first need with the latter is not any longer the power to command; rather is it the obligation in a practical fashion to supply needs. We recognise that the governing classes still retain power; but they retain power today not by virtue of the rights they possess but of the duties they must perform. Their power therefore is limited by the degree in which those duties are fulfilled. The functions they have to achieve form, in their totality, the business of government.

The present evolution, then, may be summarised as follows: The ruling class has no subjective sovereignty. It has a power which it exerts in return for the organization of those public services which are consistently to respond to the public need. Its acts have neither force nor legal value save as they contribute to this end.

Constitutional law is no longer a mass of rulers applying to superior and subordinate, to a power that can command and a subject that must obey. All wills are individual wills; all are of equal validity; there is no hierarchy of wills. The measure of their difference is determined by the end they pursue. The will of a statesman has no special force in itself; its validity is derived from its relation to the public service. It is, moreover, a relation that permits of degrees.

So it is that the idea of public service replaces the idea of sovereignty. The state is no longer a sovereign power issuing its commands. It is a group of individuals who must use the force they possess to supply the public need. The idea of public service lies at the very base of the theory of the modern state. No other notion takes its root so profoundly in the facts of social life.

¹ The Evolution of Private Law (1912). [This has been translated in the Continental Legal Historical Series in the volume entitled The Progress of Continental Law in the Nineteenth Century. Boston, 1918.]

³ Cf. Dicey, Law of the Constitution (8th ed., 1915), chap. i.

³ [See, per contra, Bosanquet, The Philosophical Theory of the State (London, 1909), chap, v.]

⁴ [See this forcibly put, though with somewhat different conclusions, in Mr. F. H. Bradley's famous essay, My Station and Its Duties, in his Ethical Studies.]

Chapter I
The Eclipse of Sovereignty

WE have first to discuss the causes that have contributed to the disintegration of the theory of sovereignty. As in the case of every important social problem, they are as numerous as they are complex. Some are both anterior to the creation of the imperialist system and inherent in it; others are external and hinge on philosophical, political, and economic considerations. Indeed, every legal theory is the product of these three factors.

I

The idea of sovereignty, as we find it in the Contrat So...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Original Title
• Original Copyright
• Contents
• TRANSLATOR'S PREFACE
• INTRODUCTION
• AUTHOR'S INTRODUCTION
• CONCLUSION
• BIBLIOGRAPHICAL NOTE