The seeking of the organs of society which are the immediate source of legal sanctions, the seeking of the ultimate source of political control—these are the quests of jurists and political philosophers. To their search must be added a study of the process by which a genuine sovereignty is created. The political pluralists are reacting against the sovereignty which our legal theory postulates, for they see that there is no such thing actually, but if sovereignty is at present a legal fiction, the matter need not rest there—we must seek to find how a genuine social and political control can be produced. The understanding of self-government, of democracy, is bound up with the conception of sovereignty as a psychological process.
The idea of sovereignty held by guild socialists[[105]] is based largely on the so-called “objective” theory of le droit expounded by M. Léon Duguit of Bordeaux. This theory is accepted as the “juridical basis” of a new state, what some call the functionarist state.[[106]] Man, Duguit tells us, has no rights as man, but only as a member of the social order. His rights are based on the fact of social interdependence—on his relations and consequent obligations. In fact he has no rights, but duties and powers. All power and all obligation is found in “social solidarity,” in a constantly evolving social solidarity.[[107]]
The elaboration of this theory is Duguit’s large contribution to political thought. His droit is a dynamic law—it can never be captured and fixed. The essential weakness of his doctrine is that he denies the possibility of a collective will, which means that he ignores the psychology of the social process. He and his followers reject the notion of a collective will as “concept de l’esprit dénué de toute réalité positive.” If this is their idea of a collective will, they are right to reject it. I ask for its acceptance only so far as it can be proved to have positive reality. There is only one way in the world by which you can ever know whether there is a collective will, and that is by actually trying to make one; you need not discuss a collective will as a theory. If experiment proves to us that we cannot have a collective will, we must accept the verdict. Duguit thinks that when we talk of the sovereignty of the people we mean an abstract sovereignty; the new psychology means by the sovereignty of the people that which they actually create. It is true that we have none at present. Duguit is perfectly right in opposing the old theory of the “sovereign state.”
But Duguit says that if there were a collective will there is no reason why it should impose itself on the individual wills. “L’affirmation que la collectivité a le pouvoir légitime de commander force qu’elle est la collectivité, est une affirmation d’ordre métaphysique oú religieux....” This in itself shows a misunderstanding of the evolution of a collective will. This school does not seem to understand that every one must contribute to the collective will; ideally it would have no power unless this happened, actually we can only be constantly approaching this ideal.[[108]] Duguit makes a thing-in-itself of la volonté nationale—it is a most insidious fallacy which we all fall into again and again. But we can never accept that kind of a collective will. We believe in a collective will only so far as it is really forming from out our actual daily life of intermingling men and women. There is nothing “metaphysical” or “religious” about this. Duguit says metaphysics “doit rester étranger à toute jurisprudence....” We agree to that and insist that jurisprudence must be founded on social psychology.
Five people produce a collective idea, a collective will. That will becomes at once an imperative upon those five people. It is not an imperative upon any one else. On the other hand no one else can make imperatives for those five people. It has been generated by the social process which is a self-sufficing, all-inclusive process. The same process which creates the collective will creates at the same time the imperative of the collective will. It is absolutely impossible to give self-government: no one has the right to give it; no one has the power to give it. Group A allows group B to govern itself? This is an empty permission unless B has learned how to govern itself. Self-government must always be grown. Sovereignty is always a psychological process.
Many of Duguit’s errors come from a misconception of the social process. Violently opposed to a collective will, he sees in the individual thought and will the only genuine “chose en soi” (it is interesting to notice that la chose en soi finds a place in the thought of many pluralists). Not admitting the process of “community” he asserts that la règle de droit is anterior and superior to the state; he does not see the true relation of le droit to l’état, that they evolve together, that the same process which creates le droit creates l’état.[[109]] The will of the people, he insists, can not create le droit. Here he does not see the unity of the social process. He separates will and purpose and the activity of the reciprocal interchange instead of seeing them as one. Certainly the will of the people does not create le droit, but the social process in its entire unity does. “Positive law must constantly follow le droit objectif.” Of course. “Le droit objectif is constantly evolving.” Certainly. But how evolving? Here is where we disagree. The social process creates le droit objectif, and will is an essential part of the social process. Purpose is an essential part of the social process. Separate the parts of the social process and you have a different idea of jurisprudence, of democracy, of political institutions. Aim is all-important for Duguit. The rule of le droit is the rule of conscious ends: only the aim gives a will its worth; if the aim is juridical (conformed to la règle de droit), then the will is juridical. Thus Duguit’s pragmatism is one which has not yet rid itself of absolute standards. It might be urged that it has, because he finds his absolute standards in “social solidarity.” But any one who believes that the individual will is a chose en soi, and who separates the elements of the social process, does not wholly admit the self-sufficing character of that process.
The modern tendency in many quarters, however, in regard to conceptions of social practice, is to substitute ends for will.[[110]] This is a perfectly comprehensible reaction, but future jurisprudence must certainly unite these two ideas. Professor Jethro Brown says, “The justification for governmental action is found not in consent but in the purpose it serves.” Not in that alone. De Maeztu says, “The profound secret of associations is not that men have need of one another, but that they need the same thing.” These two ideas can merge. Professor Brown makes the common good the basis of the new doctrine of natural right.[[111]] But we must all remember, what I do not doubt this writer does remember, that purpose can never be a chose en soi, and that, of the utmost importance, the “new natural law” can be brought into manifestation only by certain modes of association.
It is true, as Duguit says, that the state has the “right” to will because of the thing willed, that it has no “subjective” right to will, that its justification is in its purpose. (This is of course the truth in regard to all our “rights”; they are justified only by the use we make of them.) And yet there is a truth in the old idea of the “right” of a collectivity to will. These two ideas must be synthesized. They are synthesized by the new psychology which sees the purpose forming the will at the same time as the will forms the purpose, which finds no separation anywhere in the social process. We can never think of purpose as something in front which leads us on, as the carrot the donkey. Purpose is never in front of us, it appears at every moment with the appearance of will. Thus the new school of jurisprudence founded on social psychology cannot be a teleological school alone, but must be founded on all the elements which constitute the social process. Ideals do not operate in a vacuum. This theorists seem sometimes to forget, but those of us who have had tragic experience of this truth are likely to give more emphasis to the interaction of purpose, will and activity, past and present activity. The recognition that le droit is the product of a group process swallows up the question as to whether it is “objective” or “subjective”; it is neither, it is both; we look at the matter quite differently.[[112]]
To sum up this point. We must all, I think, agree with the “objective” conception of law in its essence, but not in its dividing the social process, a true unity, into separate parts. Rights arise from relation, and purpose is bound up in the relation. The relation of men to one another and to the object sought are part of the same process. Duguit has rendered us invaluable service in his insistence that le droit must be based on “la vie actuelle,” but he does not take the one step further and see that le droit is born within the group, that there is an essential law of the group as different from other modes of association, and that this has many implications.
The droit evolved by a group is the droit of that group. The droit evolved by a state-group (we agree that there is no state-group yet, the state is evolving, the droit is evolving, there is only an approximate state, an approximately genuine droit) is the droit of the state. The contribution of the new psychology is that le droit comes from relation and is always in relation. The warning of the new psychology to the advocates of vocational representation is that the droit (either as law or right)[[113]] evolved by men of one occupation only will represent too little intermingling to express the “community” truth. We don’t want doctors’ ethics and lawyers’ ethics, and so on through the various groups. That is just the trouble at present. Employers and employees meet in conference. Watch those conferences. The difference of interest is not always the whole difficulty; there is also the difference of standard. Capitalist ethics and workman ethics are often opposed. We must accept le droit as a social product, as a group product, but we must have groups which will unify interests and standards. Law and politics can be founded on nothing but vital modes of association.