Mr. Roscoe Pound’s exposition of modern law is just here a great help to political theory. The essential, the vital part of his teaching, is, not his theory of law based on interests, not his emphasis upon relation, but his bringing together of these two ideas. This takes us out of the vague, nebulous region of much of the older legal and political theory, and shows us the actual method of living our daily lives. All that he says of relation implies that we must seek and bring into use those modes of association which will reveal true interests, actual interests, yet not particularist interests but the interests discovered through group relations—employer and employed, master and servant, landlord and tenant, etc. But, and this is of great importance, these groups must be made into genuine groups. If law is to be a group-product, we must see that our groups are real groups, we must find the true principle of association. For this we need, as I must continually repeat, the study of group psychology. “Life,” “man,” “society,” are coming to have little meaning for us: it is your life and my life with which we are concerned, not “man” but the men we see around us, not “society” but the many societies in which we pass our lives. “Social” values? We want individual values, but individual values discovered through group relations.
To sum up this point: (1) law should be a group-product, (2) we should therefore have genuine groups, (3) political method must be such that the “law” of the group can become embodied in our legislation.
M. Duguit’s disregarding of the laws of that intermingling which is the basis of his droit objectif leads to a partial understanding only of the vote. Voting is for him still in a way a particularist matter. To be sure he calls it a function and that marks a certain advance. Moreover he wishes us to consider the vote an “objective” power, an “objective” duty, not a “subjective” right. This is an alluring theory in a pragmatic age. And if you see it leading to syndicalism which you have already accepted beforehand, it is all the more alluring! But to call the vote a function is only half the story; as long as it is a particularist vote, it does not help us much to have it rest on function, or rather, it goes just half the way. It must rest on the intermingling of all my functions, it must rest on the intermingling of all my functions with all the functions of all the others; it must rest indeed on social solidarity, but a social solidarity in which every man interpenetrating with every other is thereby approaching a whole of which he is the whole at one point.
Duguit, full of Rousseau, does not think it possible to have a collective sovereignty without every one having an equal share of this collective sovereignty, and he most strenuously opposes le suffrage universel égalitaire. But le suffrage universel égalitaire staring all the obvious inequalities of man in the face, Rousseau’s divided sovereignty based on an indivisible sovereignty—all these things no longer trouble you when you see the vote as the expression at one point of some approximate whole produced by the intermingling of men.
True sovereignty and true functionalism are not opposed; the vote resting on “subjective” right and the vote resting on “objective” power are not opposed, but the particularist vote and the genuinely individual vote are opposed. Any doctrine which contains a trace of particularism in any form cannot gain our allegiance.
Again Duguit’s ignoring of the psychology of the social process leads him to the separation of governors and governed. This separation is for him the essential fact of the state. Sovereignty is with those individuals who can impose their will upon others. He says no one can give orders to himself, but as a matter of fact no one can really give orders to any one but himself.[[114]] Here Duguit confuses present facts and future possibilities. Let us be the state, let us be sovereign—over ourselves. As the problem in the life of each one of us is to find the way to unify the warring elements within us—as only thus do we gain sovereignty over ourselves—so the problem is the same for the state. Duguit is right in saying that the German theory of auto-limitation is unnecessary, but not in the reasons he gives for it. A psychic entity is subordinate to the droit which itself evolves not by auto-limitation, but by the essential and intrinsic law of the group.
But Duguit has done us large service not only in his doctrine of a law, a right, born of our actual life, of our always evolving life, but also in his insistence on the individual which makes him one of the builders of the new individualism.[[115]] We see in the gradual transformation of the idea of natural law which took place among the French jurists of the end of the nineteenth century, the struggle of the old particularism with the feelings-out for the true individualism. That the French have been slow to give up individual rights, that many of them have not given them up for any collective theory, but, feeling the truth underneath the old doctrine, have sought (and found) a different interpretation, a different basis and a different use, has helped us all immeasurably.
Group psychology shows us the process of man creating social power, evolving his own “rights.” We now see that man’s only rights are group-rights. These are based on his activity in the group—you can call it function if you like, only unless you are careful that tends to become mechanical, and it tends to an organic functionalism in which lurk many dangers. But the main point for us to grasp is that we can never understand rights by an abstract discussion of “subjective” vs. “objective”—only by the closest study of the process by which these rights are evolved. The true basis of rights is neither a “mystical” idea of related personalities, nor is it to be found entirely in the relation of the associated to the object sought; a truly modern conception of law synthesizes these two ideas. “Function,” de Maeztu tells us “[is] a quality independent of the wills of men.” This is a meaningless sentence to the new psychology. At present the exposition of the “objective” theory of law is largely a polemic against the “subjective.” When we understand more of group psychology, and it can be put forth in a positive manner, it will win many more adherents.
Then as soon as the psychological foundation of law is clearly seen, the sovereignty of the state in its old meaning will be neither acclaimed nor denied. An understanding of the group process teaches us the true nature of sovereignty. We can agree with the pluralist school that the present state has no “right” to sovereignty;[[116]] we can go further and say that the state will never be more than ideally sovereign, further still and say that the whole idea of sovereignty must be recast and take a different place in political science. And yet, with the meaning given to it by present psychology, it is perhaps the most vital thought of the new politics. The sovereign is not the crowd, it is not millions of unrelated atoms, but men joining to form a real whole. The atomistic idea of sovereignty is dead, we all agree, but we may learn to define sovereignty differently.