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Leon Diugi, Entsiklopediia gosudarstva i prava (1925-1926), Moscow, vol.1, pp.1064-1068.
From Evgeny Pashukanis, Selected Writings on Marxism and Law (eds. P. Beirne & R. Sharlet), London & New York 1980, pp.166-8.
Translated by Peter B. Maggs.
Copyright © Peter B. Maggs. Published here by kind permission of the translator.
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Leon Duguit [is] a respected French jurist, dean of the law school at Bordeaux, and author of a series of works which criticize traditional juridic opinions and ideas. The first work in which he began to develop the basis of his doctrine (L’etat, le droit objectif et la loi positive) [1] was written as a response to The System of Subjective Public Laws by the noted German jurist George Jellinek. In this and in later works [2] Duguit criticizes the juridic conception of the state; he also criticizes the very notion of subjective law, rejecting it as an “individualist, metaphysical construction” inherited from Roman jurists and medieval scholastics and received through the French Revolution. This construction is outdated, according to Duguit, and is incapable of incorporating the complex and diverse relationships currently existing between individuals and collectivities. Subjective law leads only to fruitless and endless arguments. Having distinguished between subjective law and the realm of jurisprudence, Duguit identifies the only undisputed norms of objective law as those positive and negative obligations which are imposed on people who belong to the same social group. Duguit follows the views of the French sociologist Emile Durkheim and considers that norms of objective law are based on a law of social solidarity. Social solidarity occurs when people have common needs which can be satisfied jointly, and when people have different needs and different abilities which can be satisfied through the exchange of mutual services. Proceeding from these propositions, Duguit, à la Kant, tries to replace laws with obligations: “There is no law other than the law to fulfil one’s duty”. Even private property –the most characteristic institution of individualist, bourgeois society – is presented as a social function by Duguit: “The law of property should be understood only as the power of individuals who are in a specific economic position to fulfil the obligation of the social purpose required of their social status.”
Rejecting the notion of the state and the juridic doctrine of sovereignty as a special trait of “state will”, Dugult considers the state as the person or group of persons who actually possess power (the rulers):
The state is simply the product of the natural differentiation of people who belong to the same social group ... the will of the rulers has no more juridic value than the will of the ruled ... In every human society, to a greater or lesser extent, one can say that a state exists when one group of people has coercive power.
Duguit does not object to the figurative assertion that the state is “the executioner’s axe and the gendarme’s sabre”. But having exposed the state as naked power, and having tarnished its mystical cloak of sovereignty, Duguit quickly opens the doors of juridic ideology. This ideology appears in the form of “self-imposed legal norms”, predicated by the state and standing above the state. Both the rulers and the ruled are in the same degree under the command of a supreme legal norm produced by social solidarity.
Only that which is lawful (and legal), in the relationships between the rulers and the ruled, corresponds with this supreme norm.
The rulers possess the most power in any given society; consequently, the legal norm requires them to use their power for the attainment of social solidarity.
Duguit proceeds with the idea that solidarity occurs through the division of labour and that it assigns each person a social obligation. He thus welcomes all types of corporations, associations, professional syndicates, various business organizations, clerical and mercantile unions etc., and sees in them the phenomenon of “social integration”: this is how the amorphous mass of the nation acquires a “definite juridic structure”, which is composed of people united by their common needs and professional interests. Duguit even dreamed of a special professional representation which would supplement and counterbalance a parliamentary representation that only reflects the power of political parties.
Duguit repeatedly declared himself to be an opponent of socialism but, nevertheless, his theories have often been classified as socialist. After the October Revolution even our jurists attempted to depict Duguit’s doctrine as a practico-juridic basis for socialist revolution. [3] Duguit’s sympathies for corporate and estate representation convinced some of his opponents that the practical conclusion of his conception was the system of soviets. In this respect, of course, Duguit subjectively exhibits great hatred and utter incomprehension for the October Revolution and the Soviet Republic as he demonstrates in the second edition of his Constitutional Law. Objectively, also, his theories are an attempt to conceal and disguise the contradictions of capitalism. He depicts capitalism, driven by the craving for profit and the vicious class struggle, as a collectivity founded or) the basis of social solidarity. He presents capitalist property as the fulfilment of a social function, and the imperialist and militarist state as an institution that is transformed from an authoritarian power to a participant group. Duguit’s scholarship is a, sure sign, on the one hand, that individualist doctrines have lost their ideological pathos and yet are still incapable of fascinating anyone. And this is despite their dogmatic advantages: the dogmas of law and “sovereignty” and “subjective law” remain fashionable notions, and criticism here would not produce any radical change. On the other hand, Duguit incarnates the period of finance capital this has made free private property a problematic notion, and it is overtly apparent on the political scene in the form of the real power of large capitalist corporations. These corporations collaborate with opportunist union leaders, when the need arises, and ignore the outdated fiction of classless state sovereignty.
Duguit’s most noted French disciple is Professor Jaise; in England his ideas are shared by the young political theorist Harold Laski.
1. L. Duguit, L’etat: droit objectif et droit positif (1901), Paris.
2. L. Duguit, L’etat, les gouvernants et les agents (1903), Paris; Les transformations du droit prive (1912), Paris; Traite de droit constitutionnel (1922-1923, 2nd edition), 5 vols. – the first edition was translated into Russian.
3. See A.G. Goikhbarg’s introduction to the translation of Duguit’s Transformations, and various places in his A Course on the Economic Law of the RSFSR.
Last updated on 16.6.2004