Duguit, Léon
Duguit, Léon
Léon Duguit (1859–1928) was a professor in the Faculté de Droit at Bordeaux from 1886 until his death. The portion of his work that is relevant to social science in general is contained essentially in two major works: one is the two-volume Études de droit public (1901–1902); the other is Traité de droit constitutionnel (1911).
Duguit’s predominant concern was to discover the rules that should “control, direct [and] limit” the actions of those who govern. He sought to ascertain how those who hold political power and the force to compel compliance should use that power and that force—given that they hold them not as their personal right but merely as a means of performing a social function. They should not, therefore, use them arbitrarily but solely according to the interests of society; otherwise their actions would be unlawful, and hence invalid.
In the modern state, political power is primarily exerted through legislation—that is, by the establishment of rules of conduct for the governed. Consequently, to determine “the norm for government action” means, in the first place, to establish what laws the political authority should and should not lay down. This is, then, a much larger and more general task than Duguit implied when he wrote in traditional liberal terms of “limiting the State,” of “limitation of the power of those who govern.” Actually, what is involved is nothing less than determining the entire juridical order that those in power shall create: all the rules of law that go to make it up, whatever their object, whether it be relations among private persons (private law) or between those who govern—or their agents—and private persons (public law).
Duguit did make a basic distinction, however, between two sorts of legal rules, the “normative rules of law,” or “legal norms properly so called,” and the “constructive or technical rules of law.” The former rules constitute prohibitions or commands; in particular, injunctions on individuals to act or abstain from acting—e.g., not to commit murder, to pay taxes, to respect property. The latter rules enact measures to ensure that the former are respected and enforced, defining the authority entrusted with applying a sanction to persons breaking them. There is no doubt that Duguit intended to determine only what normative rules control the actions of those who govern.
For Duguit the “constructive rules of law,” as their name indicates, are consciously made by man, whereas the “legal norms properly so called” are quite different. Another fundamental element of his theories on law is the distinction (in a way more basic than the previous one) between “objective law” and “positive law.” It is not difficult to define positive law: it is those rules of law laid down, applied, and enforced by “the public power” or state. But what did Duguit mean by “objective law”?
On some occasions, he defined it by a sociological criterion: a juridical norm is a social norm in that the bulk of the members of a group accepts as legitimate its regular enforcement by those in power. A rule of law obtains if the conscience of the bulk of the people desires and demands this sanction as necessary to the maintenance of social solidarity. In short, “objective law” consists of the rules of law that in the opinion of the majority should have an organized sanction. Thus, juridical norms are a spontaneous product of mass conscience.
On other occasions, however, Duguit gave a genuinely objective definition of objective law: a legal rule is one that is derived from the current and changing conditions of the life of a given society and determined by observation and rational analysis, and that prescribes certain actions and prohibits others to all the members of the society. Viewed in this way, objective law is contingent on social fact, is in fact a spontaneous creation of social life.
Regardless of his uncertainty about the exact nature of positive law, Duguit considered the task of operating with these notions of law as belonging to the science of law, in cooperation, to be sure, with other social sciences. In fact, he regarded this as the chief mission and raison d’étre of the social sciences; if they fail to perform this task, they convict themselves of futility: “Social research has reason for existing and value only insofar as it can draw up rules of conduct that gain the respect of those who govern” (Duguit 1902, p. xxiii). “[All] juridical speculations are vain unless they succeed in determining … the solid basis of a juridical limitation on the action of those who govern” ([1911] 1921–1925, vol. 1, p. 65). Duguit further admitted that it is possible to establish these rules of objective law by observation alone, by “direct determination of facts” perceived by the senses, i.e., by the scientific method. Bent on being a positivist and realist, he rejected, in the tradition of Auguste Comte, all theological or metaphysical speculation. He insisted that the legal rules are present in social reality and that the role of the jurist consists in “discovering them beneath the social facts” and in noting them, rather than in any way promulgating them because he happens to believe that they are good.
This scientific task will by no means produce “higher principles,” but rather rules that vary from one society to another and, over time, in the same society. Duguit categorically rejected the idea that there are rules of law that are valid absolutely, eternally, and universally. He asserted that all that we observe are rules that are diverse, relative, and contingent. In a word, he rejected the idea of natural law. The higher principle or principles posited by its advocates are posited a priori; they may indeed be “objects of metaphysical or religious belief,” but there is “nothing scientific” about them.
Given these two kinds of law—objective and positive—how did Duguit conceive of their normative relationships? His position is very explicit: only the rules of objective law (which alone are “legal norms properly so called”) have an obligatory force of their own, i.e., validity for those whose conduct they claim to determine. The rules of positive law (what we would call, basically, the law), on the other hand, are not binding in and of themselves, but only if, and hence because, they sanction a rule of objective law. When a legislative rule is not backed up by a rule of objective law, it is invalid, has no obligatory force, and is not juridically binding on the citizens, or on the courts, for that matter. “Obedience is due not to legislation as such, but only to legislation as expressing and executing a juridical norm. … Legislation can only be obligatory if it expresses a juridical norm that is prior to it, created by the very conscience of those to whom it is addressed, i.e., spontaneous” (ibid., vol. 1, p. 153). Logically, then, it is the duty of the state “when it makes a law, to formulate an already existing rule of law that is binding in and of itself, or to take constructive measures to assure its enforcement” (ibid., vol. 3, p. 555) and never to set itself up in opposition to objective law, the “higher law,” which is rigorously binding on it, even if that higher law has not been sanctioned by a source of positive law. Thus, objective law is higher than positive law and is the condition of its validity, its obligatory character, its very character as a rule or norm. At bottom, it alone is truly law or, in any event, original law. The “sources of positive law”—legislation, jurisprudence, custom—are not as such sources of rules of law; they only become that on the condition that the rules they profess to lay down conform to the rules of objective law, which is the supreme principle of all juridical validity.
As Duguit saw it, his theory of the state and his theory of law were positivistic, realistic, and sociological. It was a “sociological-juridical doctrine” that he had “tried to base on pure observation of social facts,” sticking to “the observable facts” and therefore rejecting “metaphysics and all a priori concepts.” He liked to call himself a “sociological jurist.” The two thinkers who influenced him most were Auguste Comte, the positivist philosopher and precursor of sociology, and Émile Durkheim, the great French sociologist of the early twentieth century. These influences can be noted in some of his general views on law and government.
He rejected the idea of natural law and refused to idealize a fortiori or to deify the state and its rulers. He rejected all systems that present the state as an organic unity or even as an ideal unity, and he declared that the state is merely a society in which there is a differentiation between the governed and the governors (i.e., those who hold political power). The state is nothing more or less than “a fact of greater force.” He constantly repeated that “those who govern are individuals like the others,” that they are not higher in nature or qualities than those who are governed, that their will is not higher in essence or virtue than the will of the latter. The only constant difference between those who govern and those who are governed is that the former control the force of constraint.
Duguit’s system did not succeed in establishing scientifically the proper juridical order. Rather than a theory of positive science (whether juridical or sociological), Duguit presented a doctrine of political philosophy or political ethics. His central theses clearly are meant to act on people’s minds, to help anchor in them certain beliefs that will determine their behavior. The absolute intellectual acceptance of facts that he advocated has come off second best. Duguit himself went so far as to admit that the statement that the state is limited by objective law is only an academic formula and that this limitation cannot in fact exist at all, “for there is no law without a material sanction and there can be no sanction against the state” (ibid., vol. 3, p. 549). But he nonetheless advocated that “we should never tire of energetically asserting the subordination of the state to a higher law, chiefly in order to impress that idea more deeply into the consciousness of the collectivity, so that those who hold power will hesitate to oppose [this law] openly” (ibid., vol. 3, p. 550). These dogmatic assertions patently contradict nearly all the basic principles of positive law. Duguit acknowledged this explicitly.
Duguit also failed to found “objective law,” that is, positive law supported by scientific method. He never even provided examples that might indicate how this could be done. He confined himself to propositions just as formal and dialectical as those of the traditional theorists of the “common weal”: social law, which is binding on all, is that law that governs the formation and development of the group; the members of the group, and the governors first of all, should strive to maintain and develop their interdependence, their solidarity with the group, by promoting justice and welfare. At best, these are theoretical principles from which no concrete rules can be deduced, with the possible exception of a few rules that are self-evident in any society.
The great error that vitiates this system is Duguit’s belief in the possibility of establishing, as a scientific truth, that individuals are bound by conscience to observe social rules emerging directly from social facts or, at a deeper level perhaps, the belief that rules of conduct exist in social facts—i.e., that they can in some way be read there, discovered there, and that men, or rather the “learned,” need only declare their obligatory force. He acknowledged these beliefs; they contain in embryo the failure of his enterprise, and the weakness of the major part of his theory of law and the state.
Although many of Duguit’s theories have been criticized, there is no doubt whatever that they exerted a considerable influence on several generations of professors in French law faculties, from the time of their first publication early in the twentieth century. He not only gained wide acceptance among legal scholars for methods of juridical analysis, but he also won adherents among the politically oriented for his realistic approach to the state and for his assertion that the power of those who govern is to be considered simply a social function, existing only in the interest of the nation and to be exercised only in that interest. (This position was the very antithesis of the Hegelian or Prussian tradition that dominated German theories of public law, with their metaphysical or political exaltation of the power of the state.) Duguit’s best-known follower in the theory of international law was Georges Scelle; in the field of administrative law, his most important intellectual descendants were Gaston Jéze, Roger Bonnard, and Louis Rolland. If Duguit’s doctrine as a whole, then, no longer has the impact it once had, his name is nevertheless a great one in the history of French juridical thought.
Charles Eisenmann
[For the historical context of Duguit’s work, see the biographies ofComte; Durkheim. For discussion of similar ideas, seeJurisprudence; Law, article onthe sociology of law; and the biographies ofBrecht; Ehrlich; Hauriou; Heller; Jellinek; Kantorowicz; Kelsen; Llewellyn; Pound.]
WORKS BY DUGUIT
1901–1902 Études de droit public. 2 vols. Paris: Fontemoing. → Volume 1: L’état, le droit objectif et la loi positive. Volume 2: L’état, les gouvernants et les agents.
1902 Preface. In Volume 1, Woodrow Wilson, L’état: Elements d’histoire et de practique politique. Paris: Giard & Brière.
(1911) 1921–1925 Traité de droit constitutionnel. 2d ed., 5 vols. Paris: Boccard. → Volume 1: La regie de droit —Le probleme de I’etat. Volumes 2–3: La iheorie generate de I’etat. Volume 4: L’organisation politique de la France. Volume 5: Les libertés publiques.
(1913) 1919 Law in the Modern State. Translated by Frida Laski and Harold J. Laski. New York: Huebsch. → First published as Les transformations du droit public.
WORKS ABOUT DUGUIT
Bonnard, Roger 1928–1929 Léon Duguit: 1859–1928. Revue internationale de la théorie du droit 3:58–70. → Contains a bibliography on pages 68–70.
Bonnecase, Julien 1928–1929 La science juridique française: Quelques aspects fondamentaux de l’oeuvre de Léon Duguit. Revue générale du droit, de la Ugislation et de la jurisprudence en France et à L’etranger 52:281–288; 53:60–67, 123–131, 205–215.
Eisenmann, Charles 1930 Deux théoriciens du droit: Duguit et Hauriou. Revue philosophique de la France et de L’étranger 110:231–279.