which men have and which can be satisfied only by the common 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 aptitudes. The existence of the social solidarity having been posited, the notion of law (droit) 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 are consonant therewith. This rule of conduct is a veritable rule of law (règle de droit, le droit objectif) 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 themselves are juridically obliged to employ the force at their disposal to realize and to develop the social solidarity."

Now, according to Duguit, there are no natural rights (droits subjectifs) 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 juridique), and gives rise to a subjective juridical situation. Such a manifestation of the will, therefore, ought to produce a social effect, i. e., the object willed ought to be socially realized, and the obligation to coöperate towards the realization of that object is imposed upon every one who can contribute to that end. 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

'L'état, le droit objectif et la loi positive, chap. i; Manuel de droit constitutionnel, p. 9.

'L'état, les gouvernants et les agents, p. 153.

'Manuel de droit constitutionnel, p. 18.

* L'état, le droit objectif et la loi positive, p. 116.

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 étatisées.1 Law (droit) appears as a spontaneous formation, a natural product of social evolution. Let it be admitted, for the purposes of the present argument, that the social solidarity is an incontestable fact and that the notion of law may arise independently 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 conflict at this point. Yet ideas of justice have an undoubted influence 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 politique as distinguished from droit. Confessedly, the rule is enforced only by means of a social sanction. The predication 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.

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.' "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 rôle which the state plays in this theory. The state therein is only the "manifestation of a force," and is defined 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." +

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. The national consciousness has no objective existence, but is merely the simple coincidence of thoughts and desires. All external manifestations of the mind are acts of the individual will. There is no collective will, nor any will distinct from the individual will. Hence the individual man is the only real person. Collectivities have no will of their own, and are therefore incapable of rights and duties, and hence cannot be persons."

It follows from this atomistic view that the state has no reality distinct from the individuals who compose it, and is not,

'L'état, le droit objectif et la loi positive, p. 12; Manuel de droit constitutionnel, p. 2.

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 contemplation. It cannot be argued that the state is a person because the law (loi) 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. The pretended personality of the state thus has no basis either in law or in fact. It is merely an a priori 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 necessity 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. If the personality of the state is a fiction, then the rights attributed to it by law are either the rights of the individuals composing it or else rights without a subject. 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 distinction between public and private law." In affirming that there is no collective will distinct from individual wills, and that

1 L'état, le droit objectif, p. 242. L'état, le droit objectif, p. 241.

2 L'état, les gouvernants, p. 79.

4 * Cf. Rehm, Allgemeine Staatslehre, p. 156. 'Jethro 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.

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 developed 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 universal elements in the personalities of its component members forms the corporate personality of the state, the common "I" of Rousseau. The personality of the state, therefore, springs from no legal fiction, but arises as a consequence of its very existence. The law supposes it preëxistent, and does nothing but regulate and limit it.3

The impasse into which one is led by the denial of the personality of the state will be seen from some further consequences 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, however, 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 differentiation 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 communities. Duguit would perhaps not deny this. It is impossible, 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

"Das deutsche Genossenschaftsrecht”, “Die Grundbegriffe des Staatsrechts," et cetera, in the Zeitschrift für die gesammte Staatswissenschaft, XXX.

2 Das deutsche Genossenschaftsrecht, II, p. 36 et seq.

3 Michoud,

"La notion de personnalité morale," in Revue du droit public et de la science politique, vol. xi, p. 15.