Maurice Hauriou (1856–1929), French legal theorist, was born at Ladiville (Charente). He studied law at Bordeaux and, after taking first place in the 1882 competition for agregation, was appointed professor at Toulouse. He taught there for 46 years, until his death.
Hauriou taught the history of law for several years. He then went on to teach administrative law, and it was in this field that he was to make his most lasting contributions. He became deeply interested in sociology—in 1893 he wrote Les facultes dedroitet la sociologie—but after his most important work in this area, La science sociale traditionelle (1896), aroused considerable opposition, he decided, as he wrote to Georges Renard, to present in juridical dress the ideas that he had at first tried to get accepted in sociological dress (Renard 1931). Indeed, this approach is implicit in the commentaries on decisions that he made for the Sirey collection for 37 years, from 1892 to 1929 (1929), and in his Precis de droit administratif (1892), which went through 11 editions during his lifetime. But it is primarily in his Principes de droit public (1910), his Precis de droit constitutionnel (1923), and in his article “La theorie de 1’institution et de la fondation” (1925) that his sociophilosophical views may be found.
Hauriou’s thought is marked by liberalism, individualism, and attachment to tradition. He was strongly influenced by Bergson and by the doctrine of the Catholic church; he described himself, in the Principes de droit public, as a Comtean positivist turned Catholic positivist, that is, as a positivist who will go so far as to utilize the social, moral, and juridical content of Catholic dogma. As a traditionalist, he saw himself restoring the classic doctrines of French public law and defending naturallaw conceptions from the menace of the aggressive objectivism of Hans Kelsen.
However, Hauriou was not simply a conservative content to do battle from old positions. He did not regard the substance of law as purely conceptual but saw it as a concrete reality that embodies objective ideas and is subject to their creative influence. In this way he introduced into juridical thinking the sociological data that the normative (objective) method prescribed. Hauriou did not believe that the sociological study of the law meant merely the observation of social facts; instead, he was concerned with discovering how government de facto becomes government de jure (1892). As he saw it, this transformation occurs as ideas are incorporated into facts, thus creating what G. Gurvitch has called normative facts.
What has become known as the “Hauriou theory of the institution” focuses on this process of the penetration of social reality by ideas and analyzes the way in which ideas order that reality. An institution, by Hauriou’s definition, is an “idea of a project, or enterprise, that becomes a reality and persists juridically in a social milieu” (1925, p. 10). An institution is an objective reality, the product of a particular social equilibrium, and the source of legal rules. With this definition Hauriou eliminated all voluntaristic interpretations of the creation of law. He introduced a dynamic factor into the realm of law, for although institutions give stability to the law, this is not a stability that pre cludes change. The continuity of an institution de pends on its constant adaptation to new conditions of social life (1910, pp. 213, 250).
On these bases Hauriou erected a theory of the state. Rejecting the theory of the social contract, he based the origin of the state on the institution: individuals do not delegate power to a governing minority; they assent, by custom, to that institution which is the state. While the subject consents only indirectly to the power of the law, he accepts directly the institution to which that power is linked and in whose behalf it is exercised. Furthermore, Hauriou believed that the state exists only in certain civilizations, that the institution of the state is taken seriously only by certain races, and that with certain others it becomes a mere facade behind which traditions of personal power or the organization of clans and clienteles are perpetuated. As he saw it, there are peoples that are incapable of put ting into effect the idea of the commonweal (1929).
The state, therefore, is distinct from the nation. It is subject to law only at its own will, and this is why Hauriou, on the political plane, believed firmly in the merits of democracy and, more particularly, of parliamentary democracy. But taking a wide his torical perspective, he considered this type of government to be nothing more than a temporary political form. For all its recognized merits, parlia mentary democracy is only a stage in an irrreversible development that begins with aristocratic monarchies and ends with administrative empires (1929, p. 142). The successive types of government evolve as governmental institutions become nationwide; within the nation, more and more numerous elites are formed, which enter into the machinery of government and transform its operation by their presence.
So far as the functioning of parliamentary de mocracy in particular is concerned, Hauriou ad vocated the dominance of the executive over the legislative power. He believed that the best way to maintain the superiority of the executive over the legislative power is to limit the power of the deputies to initiate legislation. In his view, the conciliation of power and liberty is brought about by virtue of order, that order which follows if the people sup port actions originated by the executive. This support is almost always spontaneous; force enters into the picture only in exceptional cases, to keep refrac tory minorities within bounds.
Hauriou stressed that the character of the state is determined to a large extent by what he called its social constitution; that is, its socioeconomic structure, the place of citizens within the state, and the rights and liberties of individuals. He was deeply committed to individual liberty as the prerequisite to law that is based on the juridical person and on subjective right, and he believed that individual initiative is the basis of social order (1929, p. vii). However, he did recognize that human fallibility makes the limitation of individualism necessary: liberty must be conditional on rules of morality and social sanctions. On the socioeconomic level, limitations on individual liberty can be achieved by certain modifications in the structure of power: “Freedom of association, decentralization, corporative representation, here are three essential reforms, all three interdependent, which will assure a harmonious separation between the state and positive society, and permit the development of collective intervention in economic conflicts without a monstrous increase in the power of the state” (1896, pp. 392-393).
In the sphere of administrative law, Hauriou succeeded in erecting an extremely solid body of doc trine that is still suggestive, although it has become outmoded by changes in the extent and modes of action of the state. In general, to be sure, his influence was less in his day than that of Duguit, the other master of French public law at the turn of the century. Yet despite certain obscure points, Hauriou’s thinking is still provocative, and his work foreshadowed the orientation of those French political scientists who are studying the nature of political institutions in general and of power in particular.
(1892) 1933 Precis de droit administratif et de droit public. 12th ed. Paris: Sirey.
1893 Les facultes de droit et la sociologie. Paris: Thorin.
1896 Cours de science sociale: La science sociale traditionelle. Paris: Larose.
(1910) 1916 Principes de droit public a I’usage des etudiants en license (3’’ annee) et en doctoral es-sciences politiques. 2d ed. Paris: Tenin.
(1923) 1929 Precis de droit constitutional. 2d ed. Paris:Sirey. → The second edition is particularly recommended.
1925 La theorie de l’institution et de la fondation. Pages 1-45 in La cite moderne et les transformations du droit. Paris: Bloud & Gay.
(1929) 1931 La jurisprudence administrative de 1892 a 1929. 3 vols. Paris: Sirey.
Renard, Georges 1931 La filosofla politica di Maurice Hauriou. Volume 2, pages 195-204 in Scritti di diritto pubblico in onore di Oreste Ranelletti nel XXXV anno d’insegnamento. Padua (Italy): Milani.
Sfez, Lucien 1966 Essai sur la contribution du doyen Hauriou au droit administratif francais. Paris: Librairie Generate de Droit et de Jurisprudence.