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A RECENT’ DEVELOPMENT IN ‘W,
POLITICAL THEORY M L/
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J.‘ M?‘ MATHEWS
REPRINTED FROM POLITICAL SCIENCE QUARTERLY
VoL. XXIV., N o. 2
BOSTON
PUBLISHED BY GINN & COMPANY
I909
A RECENT DEVELOPMENT IN POLITICAL THEORY
“ THE theory of the state,” writes Le Fur, “ and I that of
sovereignty which has been its basis for so many
centuries, are at present overturned.”I By this
somewhat startling statement the savant of Caen characterizes
the result of the energetic attack which has recently been
directed against some of the most fundamental tenets of the
orthodox school of political theorists. The leading propa-
gandist of the disturbing doctrines is M. Léon Duguit, the
brilliant though sometimes erratic Professor of Law at the Uni-
versity of Bordeaux.2 In the controversy engendered by this
fresh development we find Esmein 3, Mérignhac4 and Hauriou 5
rejecting the new theory, and Le Fur‘, Berthélemy 7, and Jéze 8
accepting it in whole or in part. The conclusions reached by
Duguit form, in many respects, a striking contrast to those
arrived at in the system of analytical jurisprudence. Whether
or not his theory can be accepted by those schooled in the
latter system, it deserves fuller consideration than it has yet
received at their hands. According ‘to the standpoint from
which one views it, the new theory may serve either to correct
some of the deficiencies of analytical jurisprudence, or to em-
phasize some of its excellences.
The fundamental postulate upon which the Duguitian theory
proceeds is the solidarity of men living in a given social group.
This interdependency arises, first, from the common needs
1 Zeitsc/zrzftfz'ir Vb'lkerrec/zt and Bundesstaalsrec/zt, I, p. I3.
2 See his principal works: L’état, le droit objectif et la loi positive (19m); L’état,
les gouvernants et les agents (1903); Manuel de droit constitutionnel (1907); Le
droit social, 1e droit individuel, et la transformation de l’état (1908).
3 Droit constitutionnel, preface to third edition.
* Traité de droit public international, B. II, eh. i.
5 Revue a’u droitpublz'c at da la science politz'gue, vol. xvii, p. 346 et seq.
‘ Zeitsc/zriftfz'ir I/b'lkerréc/zt and Buna’esstaatsrec/zt, I, pp. 13-23, 218-36.
IDroit administratif, pp. 42-45.
8 Principes généraux du droit administratif, p. 8.
284
DUGUIT’S POLITICAL THEORY 285
which men have and which can be satisfied only by the com-
mon life, and, secondly, from the different needs which they
feel and strive to satisfy by the exchange of services through
the development and the employment of their different apti-
tudes.I The existence of the social solidarity having been
posited, the notion of law (droz't) is founded upon it. Since
man can live only in society, and since society can subsist only
by the solidarity which unites the individuals who compose it,
it follows that upon man as a social being a rule of conduct is
imposed which obligates him to do only that which tends to
promote the social solidarity, and to respect only those acts of
the individual which ar'e consonant therewith. This rule of
conduct is a veritable rule of law (régle a'e droz't, le droit 0b-
jectzf) which determines the legitimacy of every act having a
social bearing, whether it be that of a private individual or of a
person‘ invested with political authority. The governors them-
selves are juridically obliged to employ the force at their dis-
posal to realize and to develop the social solidarity.2
Now, according to Duguit, there are no natural rights (droz'ts
subjectzfs) inhering in a person irrespective of the law. In
reality, there are no rights at all, but only the objective power
to will and to act in accordance with the social solidarity.
Every act, willed in accordance therewith is an act in the law
(acte jurz'a’z'que), and gives rise to a subjective juridical situation.
Such a manifestation of the will, therefore, ought to produce a
social effect, 2'. e., the object willed ought to be socially realized,
and the obligation to cooperate towards the realization of that
object is imposed upon every one who can contribute to that
end.3 The force of this obligation is derived from a social
sanction which springs from the identity of the notion of social
solidarity with that of rule of conduct!‘ In every society there
will be found a consciousness of what acts are conducive to
social solidarity and what interfere with it. A social reaction is
1 L’état, le droit objectif et la loi positive, chap. i; Manuel de droit constitution-
nel, p. '9.
2 L’état, les gouvemants et les agents, p. I 53.
3 Manuel de droit constitutionnel, p. 18.
4 L’état, 1e droit objectif et la loi positive, p. 116.
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286 POLITICAL SCIENCE QUAR TERL Y [VOL. XXIV
, directed against every individual act having a social bearing that
is contrary to social solidarity. The fear of this social reaction
impels men to act in conformity with the rule of law.
Such, in brief, is the Duguitian theory as to the source and
foundation of law. It is worked out independently of the state,
and is claimed to be true of societies not yet Etatz'sées.‘
Law (draz't) appears as a spontaneous formation, a natural
‘product of social evolution. Let it be admitted, for the pur-
poses of the present argument, that the social solidarity is an
.incontestable fact and that the notion of law may arise inde-
pendently of the state. It may be asked, why should the notion
‘of law spring from the consciousness of social solidarity rather
than from other ideas. There is no certainty that those acts
which are conducive to social solidarity will always be those
which are dictated by the ideas of morality and justice, or by the
ethical ideals of the people. There may even be a serious con-
flict at this point. Yet ideas of justice have an undoubted in-
fluence upon the formation of law.
It may be admitted that the social solidarity, being the state
of circumstances upon which the law operates, may react upon
it and modify it to a certain extent. According to the theory,
_ however, the social solidarity is not only the basis of law, but
also the goal toward which the rule of law tends. From this
point of view it presents itself as a guide to practical conduct,
but, as thus conceived, the rule of law is applicable only to
those who adopt the end of social solidarity. What we have,
then, is not a rule of law, but, to use the Kantian phrase, a
hypothetical imperative. In other words, the rule of conduct
derived from the fact of social solidarity is a rule of expediency
or of polz'z‘z'que as distinguished from droit. Confessedly, the
rule is enforced only by means of a social sanction. The pre-
dication of the operation of law in spite of the absence of a
legal sanction is due to the excessive emphasis placed upon the
idea that law is determined by the nature of social relations.
In rejecting, therefore, the worn-out doctrine as to the natural
right of the individual, Duguit has but put in its place what may
1 L’état, le droit objectif et la loi positive, p. 117.
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N0. 2] DUGUZT’S POLITICAL THEORY 287
be called the natural right of society as the conditioning factor
in the formation of law.
The recrudescence of the natural-right theory in another
form is further evidenced by the retention of one of its
most dangerous doctrines, namely, the existence of law and
of rights anterior and superior to the law emanating from
the state and higher than the rights conferred by the state.I
“The science of public law,” says Duguit, “is worthy of the
name only if it establishes the basis of a rule superior to the
state itself, and which fixes its positive and negative duties.”2
Duguit is enabled to take this position largely because of the
inconsiderable role which the state plays in this theory. The
state therein is only the “ manifestation of a force,” and is de-
fined as “ the man or the group of men who in fact in a given
society are materially stronger than the others,”3 or as“ the
simple fact of the differentiation between the governors and the
governed.” 4
One is not surprised to find that, having reduced the state
to this insignificant position, Duguit denies to the state the
attribute of personality. To discard all fictions and to hark
back to the solid foundation of indisputable facts is the avowed
object of the system. The basal fact which may be posited
without proof is, it is claimed, the individual mind.5 The na-
tional consciousness has no objective existence, but is merely
the simple coincidence of thoughts and desires.6 All external
manifestations of the mind are acts of the individual will.
There is no collective will, nor any will distinct from the indi-
vidual will. Hence the individual man is the only real person.
Collectivities have no will of their own, and are therefore in-
capable of rights and duties, and hence cannot be persons.7
It follows from this atomistic view that the state has no
reality distinct from the individuals who compose it, and is not,
1 L’état, 1e droit objectif et la loi positive, p. 12; Manuel de droit constitution-
nel, p. 2.
2 L’état, le droit objectif, p. 615.
3 Mini, pp. 5, 19. 4 léiafi, pp. 261, 3 50. 5162211, p. 40.
6 L’état, les gouvernants et les agents, p. 65. 7 Ibid., p. 27.
2 8'8 POLITICAL SCIENCE Q UAR T ERL Y [VOL. XXIV
therefore, endowed with personality. Behind the word state
Duguit finds only the individual wills of the governors and of
the governed,‘ and this situation is the product of an historical
differentiation. Since the state is not a person in point of
fact, it ought not to be so considered in legal contempla'
tion. It cannot be argued that the state is a person because
the law (102') has attributed to it the quality of personality;
the state makes a law only when it is itself a person, and
the personality of the state cannot, therefore, be derived
from the law.2 The pretended personality of the state thus
has no basis either in law or in fact. It is merely an a
prz'orz' theory and phantom of the scholastic imagination which
it behooves jurists to discard as not only unnecessary but
dangerous.3
The foregoing argument has seized upon and made skilful
use of a weak point in the reasoning of some of the exponents
of what I have ventured to call the orthodox theory of the
state. The mistake which the latter have made is in supposing
that they have laid a sufficiently deep foundation for public law
in qualifying the state as a fictitious person. The merit of the
Duguitian theory is that it brings into a clearer light the neces-
sity of recognizing that the state is not a fictitious, but a real
person. It may be admitted with Lasson that the state is an
abstraction, but if so, it still arises from that which has actual
existence.4 If the personality of the state is a fiction, then the
rights attributed to it by law are either the rights of the indi-
viduals composing it or else rights without a subject.5 But
neither of these alternatives can be accepted. In denying the
personality of the state, Duguit destroys the basis of public law
and arrives at the inadmissible conclusion that there is no dis-
tinction between public and private law.6 - In afiirming that
there is no collective will distinct from individual wills, and that
1 L’état, le droit objectii, p. 242. 2 L’état, les gouvemants, p. 79.
3 L’état, le droit objectif, p. 241. 4 Cf. Rehm, Allgemeine Staatslehre, p. 156.
5Jethro Brown, “The Personality of the State and of the Corporation,” in Law
Quarterly Review, vol. xxi, p. 368.
‘ L’état, le droit objectif, p. 187.
No.2] 000 UIT’S POLITICAL THEORY 289
there is no real group existence as distinguished from that of
the sum of its members, the Duguitian theory clearly rests upon
an insufficient account of the facts. It is a matter of common
observation that a corporate personality is evolved from any
aggregate of individuals acting together upon a common basis
and with a common aim. The state is the most highly devel-
oped of such aggregates. This fact has been so clearly shown
by Gierke‘ that it has since been almost idle to insist upon it.
As he points out, each person possesses two capacities, the one
individual, the other universal. The combination of the uni-
I versal elements in the personalities of its component members
forms the corporate personality of the state, the common “I”
of Rousseau.2 The personality of the state, therefore, springs
from no legal fiction, but arises as a consequence of its very ex-
istence. The law supposes it preexistent, and does nothing but
regulate and limit it.3
The impasse into which one is led by the denial of the per-
sonality of the state will be seen from some further conse-
quences that flow from it. Having denied the personality of
the state, Duguit-finds himself under the logical necessity of
denying also the sovereignty of the state. He does not, how-
ever, undertake to say by what criterion he would distinguish
states from those political communities which are not states.
Apparently his definition of a state leaves no room for such a
distinction, for the state is found wherever there is a differenti-
ation between governors and governed, without regard to
whether the governors are themselves subject to a higher power.
This would make real states of Canada and the so-called states
of the American Union, not to speak of less important com-
munities. Duguit would perhaps not deny this. It is impossi-
ble, he says, to accept the idea of the indivisible sovereignty of
the state in its federal form. “Here the same territory and
the same men are subject at the same time to the commanding
1 “Das deutsche Genossenschaftsrecbt”, “Die Grundbegriffe des Staatsrechts,”
,et cetera, in the Zeitsc/zrzftfiir die gesammte Slaalswz'ssensc/zafz‘, XXX.
2 Das deutsche Genossenschaftsrecht, II, p. 36 et seq.
3 Michoud, “ La notion de personnalité morale,” in Revue 'a'u droz'tpublz'c et a’: la
a'mce polz'lique, vol. xi, p. 15.
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290 POLITICAL SCIENCE Q UAR T ERL Y [VOL. XXIV
power of the federal state and the member state. The state,
then, is not the superior collectivity existing on a given terri-
tory, since on the same territory exist two states.”I Yet the
federal state is one nation. “The sovereignty, therefore, is not
always the single and indivisible will of the nation personified.
Now, either the sovereignty is nothing or it is that single will of
the nation; since it is not always that, it does not exist.”2
It is hardly necessary to point out that Duguit has here con-
fused the exercise of sovereignty with its substance. Sover—
eignty may, of course, be exercised by the organs or agents of
the state without themselves becoming sovereign. It was per-
haps inevitable that Duguit should have failed to make this dis-
tinction, since, having denied the personality of the state, there
was no person in his system capable of retaining the substance
of sovereignty. Hence he is forced to suppose that the organs.
and agents of the state exercise their powers through their own
will and not because such powers are delegated to them by the
will of the state. It is obvious that this reduces the state prac~
tically to a nonentity.
As a consequence of the failure to attribute to the state its
proper position, the fundamental distinction between state and
government is constantly lost sight of. For example, we are
told that one result of the French Revolution was to limit by
law the powers of the state,3 so that the state was no longer
able to do everything by law. As evidence of this, citation is
made of the provision in the Constitution of 1791 to the effect
that the legislative power should not be competent to make-
laws of a certain characterfi Thus, in speaking of the organ,
Duguit loses sight of the organism which determines the com-
petence of the organ.
This is, perhaps, a hypercritical comment, for, having re-
duced the state to a nonentity, there is no room for a distinc-
tion between state and government. The state exists only in
the imagination; the sole reality is the government. The
1 L’état, les gouvernants et les agents, p. 673.
2L’état, le droit objectif, pp. 324, 325.
3 Ibid., p. 251. ‘Ibz'd., pp. 553, 122, note 4.
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government is defined as the class or body which monopolizes
the force in a given society.I Duguit is impressed with the
idea that there must be some limit to the legitimate exercise of
this force. Having discarded the state, he can, of course, find
no limitation in the sovereign will of the state. If there is any
sovereignty in the Duguitian theory, it is the principle of social
solidarity. We have seen that from this principle Duguit
derives the law (droit objecz‘z'f), which is a rule of conduct in
perpetual evolution, resulting from the continually changing
forms of the social solidarity, and varying constantly according
to time and place.2 At any particular time and place this law
furnishes a criterion whereby to judge the legitimacy of any
exercise of will or force on the part of the governors. Now,
the will of the governors has no inherent value greater than
that of a private individual. The act of neither is legitimate
unless it is in accordance with the law (droit objectzf),
which stands above both. This law is the norm by which
the validity of every legislative, judicial and even administra-
tive act is determined.3 The governors have no right.to
command, qua governors, but only in so far as their com-
mands are conformable to the objective law. Consequently,
when the governors formulate a rule of law (droit) in a
positive law (102'), they do not create this rule of law, which
is anterior and superior to them; they can only apply it.
Hence the positive law is defined as the constatation of an ob-
jective rule of law, and not as the creation of such a rule.4
Herein Duguit finds the limit to the legitimate exercise of will
or of force by the governors. There may, however, be a law
(loi) set by a regularly constituted legislative organ which is
contrary to the objective law (droit). Duguit does not hesi-
tate to say that such a supposed law is not law, is entirely with-
out legal force, and that no one is bound to obey it.5 The
term law (102') is thus limited to those legislative acts which are
conformable to the objective law (droit).
1 L’état, 1e droit objectif, p. 411. 2 Ibid, p. 428.
3Le droit social, le droit individuel et la transformation de l’état, p. 73.
4 L’état, le droit objectif, p. 423. 5 Ibiai, p. 424.
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292 POLITICAL SCIENCE Q UAR TERL Y [VOL XXIV
Now the question which at once arises is: How is it to be
determined whether any particular positive law is conformable
to objective law or not? Unfortunately Duguit does not satis-
factorily answer this question. If the existence of positive law
‘in actual enforcement is itself to be taken as the invariable
'evidence that such positive law conforms to the objective law, it
'is obvious that the conception of a higher law becomes super-
fluous. Unless, however, this be the test, it is difficult to see
how the conformity or non—conformity of positive law to objec-
tive law is to be determined. Duguit does not admit that there
can be any formal mode of determination, but he seems to sug—
gest that the content of the law may furnish the test. Thus,
he says, if the legislator, in making a new law, should accord
an indemnity to those who would undergo a disadvantage there-
from, this would be an admission that such law (102') is con-
trary to the more fundamental law (droit) .1 From this one
might infer that, if a law abolishing slavery should indemnify
the slave-owners‘, it would be an admission that the law was
contrary to droz'z‘. If this is a legitimate deduction, the test is
certainly a defective one, even in those few cases to which it
could be applied. That there is really no method for the
determination of this question in his system, Duguit practically
admits when he expresses a desire for the creation of a high
tribunal, composed of the representatives of all the social classes,
which should judge the legality, so to speak, of the law 102')!“2
The attempt which Duguit has made to erect a law anterior
and superior to the law emanating from the state will not, it is
needless to say, appeal very strongly to those schooled in analy-
tical jurisprudence. In this respect his theory appears as an
offshoot of the Naz‘urrec/zz‘lehre for which many continental
thinkers have so marked a predilection. Time was when the
conception of a natural law opposed to the will of the sovereign
was useful as forming a basis for resistance to oppression. Now
that practically the whole people have become the paramount
power in the state, there is less need for a theory in which the
1 Le droit social, le droit individuel et la transformation de l’état, p. 94.
*Ibz'dl, p. 58.
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N0. 2] DUGUIT’S POLITICAL THEORY 293
state is”, subjected to a higher law. Such a theory, if acted
upon in a practical way, leads to anarchy. If there were any
constituted authority for determining the content of the higher
law springing from social solidarity and for reconciling any
conflict which might arise between such higher law and the
ordinary legislative law, then such authority would be the organ
of the state legally competent to promulgate its sovereign will,
and we would then have no law higher than the law emanating
from the state. But if, on the other hand, there is no such
constituted authority, which Duguit tacitly, if not expressly,
admits, then every individual must be allowed to judge for him-
self when the legislative law fails to conform with his concep-
tion of the higher law springing from the social solidarity.
Unless, however, the legislative law does so conform, it is not
lawf- Hence we arrive at the conclusion that, from'the material
point'of view, law is indeterminable.
As we have seen, Duguit denies that the will of the governor
is superior in value to that of the lowest of the governed. The
governor is powerless to formulate a command, because one in-
dividual will cannot impose itself as such upon another indi-
vidual will.2 Hence, the mere fact that a supposed law is
promulgated by the government or by a particular organ of the
government is not a conclusive indication that such a law is
really law. Duguit thus rejects the formal test of law, 3 and we
are left without either formal or material tests for the deter-
mination of law. If such be the situation, only the exertion of
superior force can prevent it from degenerating into anarchy.
There would be no a'ejure government, for all authority would
be de facto merely, and there would be no law except Faust-
rec/zt. The basis of obedience would thus be destroyed, and
resistance to authority would be legitimate whenever the indi-
vidual judgment should so decide.
The denial of the personality and of the sovereignty of the
state, and the predication of the existence of a law higher than
the law emanating from the state are, from the point of view of
1 L’état, le droit objectif, p. 424. 2 Ih'ai, p. 366. 316221., p. 502.
294 POLITICAL SCIENCE Q UAR TERL Y [VOL XXIV
analytical jurisprudence, the cardinal defects which vitiate the
whole system. In these particulars, Duguit is perhaps not un-
influenced by his environment. He sees the French Govern-
ment exercising an apparently unchecked power, both constitu-
tionally and administratively. If the state were a real person,
it might be expected to act as a check to the arbitrary action of
the government. The tendency, therefore, is to deny the per-
sonality of the state, and to seek outside the state some limit to
the arbitrary power of the government. Duguit exhibits in
many instances the old repugnance to absolute power. “The
notion of sovereignty,” he says, “leads fatally to the absolutism
of the state,” I and cannot, therefore, be accepted. This is an
argument for the truth of those things whose alternatives are
conceived to be undesirable. Duguit has not yet arrived at the
conception that there must be somewhere a legally absolute and
uncontrollable will,2 and that that will belongs not to any part
or organ of the state, but to the whole state as a political organ-
ism. If there is no law above the state, and if the state possesses
a legally sovereign will, Duguit does not understand how the state
can be the subject of rights and duties. For him there is no
suificient explanation of this fact in the theory of the self-limi-
tation (Selbstbesckriinkung) of the state, which Jellinek has so
admirably elaborated as a corollary from the self-determination
(Selbsz‘éesz‘z'mmung) of the state.3 He does not take sufliciently
into consideration the fact that the modern state is preeminently
a legal state (Rec/ztsstaaz‘), and that, though materially omnipo-
A tent, it is formally limited, since it can act only through law,
and is bound by its own laws so long as they remain in force.
With Duguit the Rec/zz‘sstaat and the Kulturstaat coalesce,4 and
the result is an amphibious creation which is neither the one nor
the other. In combining these two concepts within the scope
of his general theory, he is enabled to arrive at an explanation
of a larger range of facts and their causes than would otherwise
1L’état, 1e droit objectif, p. 614.
2 Cf. Burgess, Political Science and Comparative Constitutional Law, vol. i, p. 52
3 Gesetz und Verordnung, p. 197 at seg.,' Allgemeine Staatslehre, p. 438 et seq.
4 L’état, 1e droit objectif et la loi positive, p. 305.
N0. 2] DUGUIT’S POLITICAL THEORY 295
be possible. Yet the gain therefrom is problematical, for, in
covering a broader field, his theory loses in definiteness.
In nearly every part of his theory, Duguit differs radically
from what I have ventured to call the orthodox doctrines. Yet
scientific progress is often promoted by the conflict of opposite
ideas. It may be that the value of the Duguitian theory will
be found to lie not so much in its positive content as in its
method and aim. It is undoubtedly an attempt to place some
of the most important concepts of political science upon a more
philosophical basis, by coordinating political, economic and
social theory into a complete and harmonious system. The
Hegelian will perhaps see in the attempt an approach toward a
truer conception of political science as an integral part of the
Welz‘ordnung. The Austinian will still be inclined to doubt the
value of the results. Yet it cannot be denied that the Duguit-
ian theory will be useful in promoting a healthy scepticism of
commonly received doctrines, and in subjecting them to a more
searching examination than they have hitherto received. The
difficulty, if not the impossibility, of making a scientific synthe-
sis which shall give an entirely true and perfect account of
actuality becomes more and more apparent. It is perhaps in-
evitable that every tolerably complete system which attempts
to marshal a highly complicated group of phenomena into a
harmonious and systematic arrangement will do violence to
some facts and leave no logical place for others. Each com-
peting system must be judged by the consistency with which it
is developed from its premises, and by the fruitfulness of its
conclusions. Perhaps, after all, the conflict between the Duguit-
ian theory and analytical jurisprudence is more apparent than
real. It may be that each, when viewed from its peculiar stand-
point, is no less true than the other. Both are perhaps neces-
sary in order to obtain a complete and well—rounded view of
the main concepts of political science.
J. M. MATHEWS.
JOHNS HOPKINS UNIVERSITY.
4 POLITICAL SCIENCE QUARTERLY
A Review devoted to tile historical, statistical and comparative study of
polities, economies and public law.
Plan. -- The field of the Quarterly is indicated by its title; its object is to
give the results of scientific investigation in this field. The Quarterly fol-
lows the most important movements of foreign politics, but devotes chief
attention to questions of present interest in the United States. On such
questions its attitude is non-partisan. Every article is signed; and every
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Editors. -— The Quarterly is under the editorial management of the
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Contributors. —- The list includes university and college teachers, politi-
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States, and English and Continental professors and publicists.
CONTENTS OF THE LAST TWO NUMBERS.
December, 1908.
Popular Legislation in the United States
The Development of the System ..................................... ..C. S. LOBINGIER
The Value of the System ................................................ ..J. B. SANBORN
Instruction in Public Business ...................................... ...... H. ALLEN
Federal Quarantine Laws ..................................................... ..EDWIN MAXEY
The Causes of Poverty .............................. ....................... ..LILIAN BRANDT
Marxism versus Socialism. II. ..................................... ..V. G. SIMKHOVITCH
The Manorial System and the Revolution ..................................... M. SAIT
March, 1909.
Political Corruption ............................................................. ..R. C. BROOKS
Municipal Socialism .............................................................. LEVEY
- Unionism in the Iron and Steel Industry ..................................... A. FITCH
A Year of Bench Labor Law ........ .................................... ..D. Y. THOMAS
The Constitution of Oklahoma .............................................. A. BEARD
French Political Capacity ................................................ T. SHOTWELL
Literature.~—Each number contains careful reviews by specialists of recent
publications. At least twice a year these reviews are supplemented by
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