volume 2 : issue 3 || july 2020 || email: editor

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VOLUME 2 : ISSUE 3

|| July 2020 ||

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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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