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 anyone 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 anyone 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.
