volume 2 : issue 3 || july 2020 || email: editor
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VOLUME 2 : ISSUE 3
|| July 2020 ||
Email: editor@whiteblacklegal.co.in
Website: www.whiteblacklegal.co.in
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ABOUT US
WHITE BLACK LEGAL is an open access, peer-reviewed and
refereed journal provide dedicated to express views on topical legal
issues, thereby generating a cross current of ideas on emerging
matters. This platform shall also ignite the initiative and desire of
young law students to contribute in the field of law. The erudite
response of legal luminaries shall be solicited to enable readers to
explore challenges that lie before law makers, lawyers and the society
at large, in the event of the ever changing social, economic and
technological scenario.
With this thought, we hereby present to you
WHITE BLACK LEGAL: THE LAW JOURNAL
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DUGUIT: SOCIAL SOLIDARITY: IDEOLOGY AND
RELEVANCE IN CONTEMPORARY ERA
Anish Malik
INTRODUCTION AND BACKGROUND
LEON DUGUIT (1859 – 1928) was a distinguished French jurist of sociological school. He
was a Professor of Constitutional Law at the University of Bordeaux for a long period. He
wrote prolifically in the early years of the 20th century on Constitutional law and Jurisprudence.
He emerged at a period when structure of individualism was crumbling in Europe being
replaced by a new philosophy of collectivism and socialism what Professor Dicey calls the
“age of the collectivist legislation”.
Life of society was reflected in its wide concern of community’s collective good with State
assuming wide social functions of public service as in evident in the works of Emile Durkheim,
Jean Piaget, George H. H. Mead and Max Weber all of whom propounded a new social morality
of co-operation. Duguit was especially influenced by August Comte the noted French positivist
who had expounded ‘law as a fact’ and had rejected the theory of subjective rights. Comet’s
notion that ‘the only right which man can possess is the right always to do his duty’ greatly
influenced Duguit’s obsession against the notion of right.
The French jurist Duguit carried forward the belief that scientific progress can be accelerated
by individual behavior in order to satisfy common social needs and interests. As to Durkheim
Division of Labour was pre-eminent factor of social cohesion to indisputable fact beyond
ideology, beyond religious or metaphysical speculation. The constant realization of social fact
which is simply inter-dependence of individuals could at last replace ideological quarrels by
observable facts.
SOCIOLOGICAL SCHOOL OF JURISPRUDENCE
Duguit belonged to the sociological school of jurisprudence as he believed that law is nothing
but a social fact. Sociological school of jurisprudence is the latest trend in legal theory which
is at once linked with discrediting of legal positivism of John Austin and historical pessimism
of Savigny both of which had closed their eyes to ever increasing gulf between law and
society.1 In the functional sense how the law works or what are its social consequences or
1 Dr. S.N.Dhyani, Fundamentals of Jurisprudence The Indian Approach 303 (Central Law Agency, Prayagraj,
2015).
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effects in actual life are the key points that underlie the basis of Sociological Jurisprudence.
Pound has described2 the characteristics of Sociological Jurisprudence which are as follows:
1. Sociological jurists regard the working of law rather than abstract content of law.
2. Law is a social institution consciously designed on the basis of experience, need or
both.
3. The acme of law for sociological jurists is its emphasis upon social requirements and
purposes which the law must attend and answer rather than upon irrelevant commands
or archaic worship of past traditions.
4. Its cardinal feature is its emphasis on functional aspects of legal institutions, doctrines
and percepts and consider law merely as a tool to subserve varying individual and social
interests.
DUGUIT’S DEFINITION OF LAW
Duguit defines law as essentially and exclusively a social fact. It is in no sense a body of
rules laying down rights. The foundation of law is in the essential requirements of the
community life. It can exist only when men live together. Therefore, the most important fact
of social life is the interdependence of men. The aim of the social institution is to safeguard
and further it. Only those rules can be called law which are the popular acceptance and not the
will of the sovereign. The sovereign is not above the law but is bound by it. The law should be
based on social realities. Duguit’s concept of law is to secure and serve social solidarity and is
duty oriented as it enjoins upon individuals to perform their obligation so as to promote and
further community inter-dependence.
According to Duguit the “essence of law” is to reconcile, resolve and comprise the interest of
individuals in the interest of protecting and promoting the larger social good. Law, according
to him, consists of duties without corresponding rights. Duguit’s concept of duty is merely an
antidote to the notion of individualism by giving predominance to community interests and of
the need of solidarity among men by highlighting the importance of social solidarity as the
ideal for realizing social justice, social equality and social accountability. It is, therefore, duty
of every one to contribute to the development of social solidarity and co-operation.
2 Roscoe Pound, “The Scope and Purpose of Sociological Jurisprudence” 25 Harv. L. Rev. pp. 489-516 (1911).
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CRITICISM AGAINST DUGUIT’S DEFINITION OF LAW
Duguit’s definition is criticized as he excludes the notion of ‘right’, from law. Since he
downgraded the sovereign to the status of an agency his definition of law is criticized because
in reality the sovereign is still the ‘electron’ in the atom of the state. Thus the definition of law
as a “social fact” is vague and confusing. The merit of this definition is that it emphasizes the
fact that law is essentially the product of social facts.
STATE AND LAW - DUGUIT’S THEORY
Duguit constructed a theory of State free from all frictions and from the fetters of metaphysical
notions. His theory of State is positivistic, pragmatic, scientific unaffected by abstract
hypothetical preconceived assumption. He denies the State its sovereignty and its claim over
and above law. To Duguit State is merely an instrument for performing the function of
promoting social solidarity. The State is clearly under law, subject to law and bound by law.
He denies the State its personality as it postulates mysticism. This denial of sovereignty which
gives the right to the state to claim obedience to its will, Duguit denies such rights do not exist
within society. The rule of law only imposes duties upon men to perform their duties. Thereby
state is controlled by the purposes it is to serve. Its power is defined and limited by its function
and accordingly is subject to law. Thus rejecting the notion of sovereignty, Duguit also rejects3
the notion of law as a command of the sovereign. In essence Duguit’s legal-philosophy
embraces five fundamental propositions4 which are:-
1. The State is no longer sovereign,
2. The doctrine of unity of the State is inconsistent with modern associational tendency,
3. The law is justified by reference to end which it is to serve in legal theory no less than
in political theory,
4. There is a droit objectif superior to all governments and legally binding on them, and
5. Rulers are under a legal right to govern well but have no legal right to govern.
As stated above the rule of law imposes upon the state the obligation to fulfil its commitment
and the obligations to assume each and all citizens the means to enable them to contribute all
it is in them to give to the fullest realization of social co-operation on cohesion what he calls
“social solidarity”. Thus to Duguit the foundation of law is based on certain facts or reality
which is neither based on state nor on natural rights nor an emanation of Volksgeist - all of
3 Duguit, “The Law and the State”, 31 Harv. L. Rev. 1 (1917). 4 Ibid.
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which are not a fact. Duguit equally rejects the doctrine of auto-limitation of the State as
expounded by Jellinek. Duguit denies all this and asserts that law is a social fact which is above
the individuals and the State, the ruler and the ruled. Indeed according to Duguit law is founded
on fairness, mutuality and respect for the ends which the law is meant to serve. So the doctrine
of State and Sovereignty become meaningless as both become obsolete in type of modern
society envisaged by Duguit as it must move towards decentralization and group syndicalism.
He seems to advocate the replacement of State organization by groups of association in the
service of society as early Marxists envisaged as the ‘withering away of the State’. However,
all powers of the State or groups is limited and conditioned by the norm of mutual co-operation
and mutual interdependence described by Duguit as “Social Solidarity”.
DOCTRINE OF SOCIAL SOLIDARITY
The background of Duguit’s Social solidarity is inspired by the work of Emile Durkhiem on
“Division of Labour”. It is an amalgamation of the common needs of the people as well as their
diverse needs. Durkheim distinguished tow type of social solidarity what he calls ‘Mechanical
and Organic’. Mechanical solidarity, according to Durkheim is based on likeness and a sense
of common identity. People are bound together by the fact that they have been brought up to
act and think alike, follow similar routine and share a common conscience. This solidarity is
mechanical. Organic solidarity, on the other hand, is based on differentiation analogous to
complex living body with specialized organism, each dependent on the other and the whole
dependent on functional integration of the parts. Social differentiation makes people and groups
interdependent - thus outcome is organic solidarity.
Durkheim’s exposition of the doctrine of mechanical and organic solidarity had profound
impact on Duguit in whom law becomes an instrument of securing and promoting co-operation
and mutual inter-dependence. With such a legacy and background Duguit attacked law based
on metaphysical and natural law notions as abstract, imaginary having no reality with facts of
social life. He rejected and discarded accordingly the traditional notions of right. Sovereign,
subject state, public law and private law, personality as fiction, unreal not based on social
reality. Thereby he ushered a new awareness among legal thinkers giving new orientation and
direction to jurisprudence the basis of which was new morality of mutual co-operation and
mutual interdependence between individuals, groups, communities and societies according to
the principal of Division of Labour.
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SOLIDARITY
Solidarity or cohesion, according to Duguit, is the principle requisite of the existence of social
life. Solidarity is nothing more or less than the fact or interdependence uniting the members of
human society, and particularly the members of a social group by reason of the community of
needs and the division of labour. Solidarity is not a rule of conduct, it is a fact – the fundamental
fact of all human society. This solidarity is the product of social reality of social life. Solidarity
thereby, lengthens the life of the individual in the community and lessen his sufferings.
SOCIAL SOLIDARITY
The doctrine of mutual interdependence is the core of Duguit’s theory of law and society which
unite individual members of a social group by the sheer force of their common needs and
interests. For men living together in groups and societies, they are dependent upon solidarity
with another. They have common needs which they can satisfy only by common life and at the
same time they have different needs to satisfaction of which they assure by exchange of
reciprocal services. The progress of humanity is assured by continuous growth, in both
directions, of individual activity.
Man is placed in such a position in the society where he has the obligation to realize this
progress because in doing so he realizes himself. Therefore, the individual in the society has to
act in conformity with social law of co-operation and interdependence.
The social function of law according to Duguit, is the realization of social solidarity. However,
solidarity is neither a charity nor fraternity. Social solidarity is nothing less than the fact of
interdependence uniting the members of human society and particularly the members of a
social group by reason of community of needs and Division of Labour. Law as such is a social
reality which has to promote and protest solidarity among men by imposing upon individuals
duties in order to regulate their conduct according to the exigencies of social solidarity.
In his system of law there is no place for rights within the society and the reluctance in
admission of rights is in the best interest of solidarity. He insists that duties alone exist. The
rule of law imposes upon us the duty to perform those functions as members of society in the
interest of realization of social solidarity. Such is the social function of law and is fundamental
to the undertaking of his theory of law. In this context Duguit aptly observes “the fact of social
solidarity is not disputed and in truth cannot be disputed; it is a fact of observation which cannot
be the object of controversy. Solidarity is a permanent fact always identical in itself, the
irreducible constitutive element of every social group”. In substance remarks “Duguit regarded
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social solidarity not as a rule of conduct or imperative, but as a fundamental fact of human co-
existence”. Duguit also propounded that there is no barrier between Public and Private Law.
They both exist at the same level for social solidarity – exchange of services and co-operation.
SOCIAL SOLIDARITY IN THE MODERN PERIOD
Social solidarity is thus the touchstone of judging the activities of individuals and all
organizations. Social Solidarity in the Modern Period can be seen as envisaged by the concept
of “social justice” in the Indian Constitution. In the Indian Constitution it finds place
significantly in the Preamble, Fundamental Rights and the Directive Principles of State Policy.
Duguit replaced the notion of right by the notion of duty and frequently repeated the right
always to do his duty. Thus the need of rights tend to disappear in his concept of society which
is based on co-operation. He thus talks about what we may term as “Duty-Based
Jurisprudence”.
The Reservation Policy of India is a huge blow on the concept of Social Solidarity since the
traditional hierarchical structure has been changed by the reservation policy and increased the
social-economic status of the weaker sections of Indian population. But politicization of caste,
religion and the nature of their assimilation in reservation category by the succeeding
government has been emerged as a new competition between ethnic groups for taking
reservations, whereby emerging a major problem for nation-building of India. The passing of
the Constitution 124th Amendment Bill, 2019 which makes provisions for giving reservation
to economically weaker sections in public employment and higher education, also added to the
problem of social solidarity as it hindered the stability of the being in the society. The above
bill was challenged by an NGO named “Youth for Equality” which used the nine judge’s bench
decision of the Supreme Court in Indra Sawhney v. Union of India5 as the basis for their petition
and contended that it violates the basic structure of the constitution and the case is still pending
in the Supreme Court. Thus the problem of solidarity arises out of the heterogeneity of society,
whether amongst the common people or in the social positions created by society.
In the Contemporary Era, although Duguit believed that people will adopt the duty-based
jurisprudence but what turned out to be a harsh reality was that the duty based jurisprudence
started withering away as people were reluctant to perform their duties but were enthusiastic
to develop a right and gain a constitutional or legal backing of it so that it turns out to be a norm
5 AIR 1993 SC 611.
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which can’t be questioned and hence were moving towards the development of a “Rights-based
Jurisprudence”.
CRITICISM OF DUGUIT’S THEORY
Duguit’s principle of social solidarity is not free from criticism. Aware of the growing
complexity of modern social life, Duguit attacks individualism as reflected in the conception
of inalienable individual rights. He also rejects the alternative of strengthening the central
power of the state. This savors of natural law although Duguit emphatically rejects any such
metaphysical conception as incompatible with scientific positivism. Yet his ideal of Social
Solidarity is as strong as a natural law ideal as any ever conceived. The criticism of Duguit’s
Social Solidarity theory can thus be discussed in the following pointers as laid down below:
1. His principle of social solidarity is a natural law ideal although Duguit is a positivist and
excludes all metaphysical elements from law. His special emphasis is on the valuation of law
on a social plan. The facts of social life to which he confines his study, in practice, tend
to become a theory of ‘justice’. He wants to establish an absolute and uncontestable rule of
law. Like “natural law” theories, he establishes a standard (social solidarity) to which all
positive law must conform. It is nothing but natural law in a different form. Therefore, it has
been rightly observed that Duguit pushed natural law out through the door and let it come by
window.
2. He confuses with what the law “ought” to be. While defining law, Duguit confused it with
what the law ought to be. According to his view, if law does not further the “social solidarity”
it is no law at all. He laid down certain fundamentals to which the law must conform. His
definition of law instead of giving a clear cut picture of law confuses it as was done by natural
law theories.
3. Duguit advocated for the minimization of state intervention at a time when state was growing
all important. Though he propounded his main thesis from the observable facts of social life
i.e., growing complexity and interdependence in society, he overlooked the fact that the social
problems of modern community can be solved better by state activity. In modern times, with
the development of society, the sphere of state activity has been widened and the state has
grown very strong.
4. Another weakness of Duguit’s theory is its inconsistency at several places. On the one hand,
he expressed faith in the biological evolution of society, and on the other hand, he vigorously
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attacked the idea of collective personality. He denied any personality to state or group distinct
from the individuals who constitute it.
DUGUIT’S THEORY OF JUSTICE
The foundation of law is the fact that of social solidarity which seeks to achieve maximum
good to all. This in essence is a theory of justice which should be enforced in the interest of the
community. Thus state regulation of social and economic life of the individuals for the common
welfare is an instance of social and economic justice which the law must cater if cooperation
is to be promoted and social tension and conflicts are to be lessened. The sentiment of justice
is a social reality like the fact of social solidarity, justice, therefore, does not depend on the will
of the sovereign but is the basis of social life and law. Duguit by insisting law as a product of
social life made an important contribution to the development of sociological jurisprudence.
DUGUIT’S CONTRIBUTION - AN ASSESSMENT
As a jurist Duguit detested the omnipotence of State with its claim of absolute sovereignty and
unaccountability towards its subject. Similarly, he rejected the notion of natural right which
had equality made individual hostile to the larger interests of the society. He in his work stated
that state and government in this scheme of things merely become a part of social organism
with such functions which are within the overall framework of Division of Labour, to serve
and promote social solidarity. This led him to expound a decentralized mechanism of society
with a structure of interdependent and correlated associations which individually and
collectively pool their efforts in the promotion of social solidarity according to the principal of
division of labour.
Duguit’s concept of state, sovereignty and rights, etc., is akin to that of “Hans Kelsen” who
also rejects the concept of State and Sovereignty as a dangerous proposition in the unity of
mankind, although both have different evils in view. Duguit and Kelsen expound parallel
concepts like “Social Solidarity” and “Grundnorm” respectively to provide a valid criterion to
determine the efficacy to their respective laws. But Duguit’s use of law is in order to promote
justice and to Kelsen’s pure theory of law the ideal of justice and morality are irrelevant,
irrational, empty and psychological-ideological ideals.
However, Duguit’s social solidarity is capable of variable interpretations. It can be used to
usher revolution or social reaction, it can be used to vindicate social progress, social reforms
and social change or for the maintenance of social State Quo or it can be used for promotion
of liberty, equality and human rights or for the imposition of tyranny or authoritarianism. His
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ideas had a mixed reception in Soviet and Fascist Jurisprudence. The Communist state used his
idea of duty towards society to deny individuals their basic human rights, the Fascist used his
concept of duty to society as duty towards the leader (Hitler) who enslaved people by seeking
absolute and unquestionable obedience from them.
Another fact of Duguit’s doctrine of social solidarity has contributed in the minimization of the
functions of the all-powerful State and revival of group consciousness or group autonomy to
cater the complex demands or expectations of complex modern communities, within the
parameters of functional and co-operative federalism. It has contributed towards harmonization
and reconciliation of the role of the State vis-à-vis individuals and of group’s vis-à-vis State in
cementing liberty with justice and reconciling obligations with rights. Also by denying
personality as well as sovereignty to the State Duguit attempts to make State subservient to the
social needs which it to cater. Hence all State actions are to be tested and examined by the
judiciary with reference to social solidarity. He advocate the right to insurrection or rebel if the
State commits acts of omission and commission towards social solidarity.
CONCLUSION
Duguit says that “Man must so act that he does nothing which may injure the social solidarity
upon which he depends and more positively, he must do all which naturally tends to promote
social solidarity”. Although, Duguit overtly and professedly advocated a positivistic, realistic
and empirical philosophy of law and society by eschewing from it the metaphysical and
abstract notion of natural law yet his concept of social solidarity is essentially metaphysical
and a new version of natural law with an overtone of sociological temper continually reflecting
the values and ideas of the society. Despite the defect and weakness of the theory his
contribution and influence is great when we talk about the realm of Sociological Jurisprudence.
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