Duguit’s social solidarity theory
Leon Duguit (1859 -1928) was another great jurist of sociological jurisprudence in the continent. He was professor of Constitutional Law at the University of Bordeaux. He belonged to the age of the collectivist legislation. He developed the theory of social solidarity at a period when the doctrine of individualism was crumbling in Europe being replaced by a new philosophy of collectivism.
Duguit was influenced by August Comte, the noted French positivist who had expounded law as a fact and had rejected the theory of subjective rights. Comte’s notion that ‘the only right which man can possess is the right always to do his duty’ greatly influenced Duguit’s theory.
Duguit was also influenced by Emile Durkheim’s work ‘Division of Labour in Society’ (1893). Durkheim distinguished between two types of social solidarity, what he calls mechanical solidarity and organic solidarity. Within early, undeveloped society, men recognised the need for mutual assistance and the combining of their aptitudes. People are bound together by the fact that they have shared a common conscience. Cohesion of a kind existed which is called mechanical solidarity or solidarity by similitude. In such a society because of the collectivist attitude, individualism would exist only at a low level. In more advanced societies in which the division of labour was widespread, collectivism was replaced by individualism. A strong social conscience would produce an organic solidarity or solidarity by division of labour which reflected the functional interdependence of men. Law is an index of social solidarity. Because law tends to reflect different types of social cohesion, different types of solidarity produced their own forms of law.
Duguit propounded a new approach to law based on the interdependence of individuals in social life. As life is lived today, social interdependence has become unavoidable eg. our food, houses, clothes, recreation, entertainment etc. Duguit made a distinction between two kinds of needs of men in society. Firstly, there are common needs of individuals which are satisfied by mutual assistance. Secondly, there are diverse needs of individuals which are satisfied by the exchange of services. Therefore, the division of labour is the most important fact of, social cohesion. He named it ‘social solidarity’. With the development of free individual activities the social solidarity develops. This ‘social solidarity’ is a fact and it is necessary for social life.
In the present day society man exists by his membership of the society. Each man cannot manufacture and procure the necessities of life himself. The end of all human activities and organization should be to ensure the interdependence of men. This is Duguit’s doctrine of social solidarity. Law also is to serve this end. Duguit says ‘Law is a rule which men possess not by virtue of any higher principle whatever (good, interest or happiness) but by virtue and perforce of facts, because they live in society and can live in society.’
Duguit launched a vigorous attack on the myth of state sovereignty. The ‘social solidarity’ is the touchstone of judging the activities of individuals and all organizations. State is also a human organization. They too are under a duty to ensure social solidarity. Therefore, the State stands in no special position or privilege and it can be justified so long as it fulfils its duty. Duguit’s theory of minimization of state function leads him to deny any arbitrary power to legislator. Legislator does not create law but merely gives expression to judicial norm formed by the consciousness of the social group.
Another important point in Duguit’s theory is that he denies the existence of private rights. The only right which any man can possess is the right always to do his duty. Individuals working in any capacity are the parts of the same social organism and each is to play his part in furtherance of the same end i.e., social solidarity. According to him, the essence of law is duty.