FRENCH THEORIES RELATING TO SUPERIOR LAW
HIGHER LAW DOCTRINES OF KRABBE
1. Views of Saleilles and Charmont. One of the French jurists who
aided materially in the development of the legal and philosophical bases for a
revival of natural law was R. Saleilles. Saleilles refers to one of the objects of the
Historical School of jurists which was designed "to set aside forever what
was called the chimera of natural law founded on reason" or of anything
permanent and immutable in the nature of man which might become an object of
law. Not only was it their purpose to reject the classical conception of
natural law but also to discredit all references to general principles or to
juridical constructions which were thought to smack of natural law or of
metaphysical connotations. The tendency on all sides was to turn in the
direction of a "practical empiricism" which Saleilles regarded as
deceptive and disturbing to the conscience. Following some of the tendencies of
the thought of Savigny jurists were inclined to limit the function of the judge
and to deny that in his decisions he had any concern with concepts of the
rational, equitable, or just. Similarly they aimed to limit the legislator to a
considerable degree to the interpretation of pre-existing customs only —
customs which might be discovered, noted, and translated into legal formulae.
Hence in the minds of such jurists natural law had been discarded to its last
consequences, to the three degrees of juridical function: legislative,
scientific, and judicial.
In the face of the dogmas of the Historical School and of the dominance of
the tendencies toward practical empiricism Saleilles sought to discover
evidences of the application of the old ideas of natural law appearing under
new or concealed forms. Noting the hurried and confused processes in the
ordinary making and applying of law in which the use of natural law ideas is
likely to be slight, he says: "Recent theorists no longer think of an
ideal or natural type of law applicable to all civilized peoples." But the
general lines of a new natural law are to be discovered in the realm where the
scholar, the legislator, and the judge evaluate first what the law is and then
indicate the rules which ought to apply, following the principles of abstract
reason. It is in this process that the judge, through his independence and his
large powers of interpretation, participates actively in lawmaking.
How can it be believed in fact if not in law [observes
Saleilles] when the text is doubtful, that the judge will not allow himself to
be guided, even if unconsciously, by his rationalising tendencies, even when
legislation has not made it a prescribed duty as is the case for example in
Art. 7 of the Austrian Civil Code? When all the arguments, as was said
formerly, are exhausted, as well as deductive reasons, analogy, juridical
construction, the Austrian Code makes it obligatory for the Judge to decide
according to natural law; the latter thus acquires a subsidiary value. The
modern judge will not wait, undoubtedly, until all the arsenal of logical
processes has been exhausted to obey what was wont to be called the light of
reason. It is really then that the question of natural law assumes a practical
importance of the first order.
In the judgment of M. Geny, the jurist is expected "to have the right
to orient himself and to direct his interpretation toward a future postulate
which is dictated to him by his conscience and by his reason." Saleilles,
following Geny's point of view (in speaking of a revival of natural law), has
in mind principles "deduced from abstract reason and from philosophical
intuition." It is not a question, he says,
of the principles which are at the source of a legal rule itself
but of simple processes of juridical technique, necessary to establish harmony
in a legislative system, in order to coordinate the scattered parts and to
allow the interested parties to guide themselves, in the applications which
they make of the law, by reasonings which can give them a degree of certainty.
It is a question of putting the provisions of the law or of a group of laws in
harmony with the whole, and then to deduce, with this aim in view, certain
directory rules implied by concrete solutions of the text. In this way the
scattered findings are gathered under a certain number of abstract principles,
which will be used as a point of departure for new developments and which the
law can adopt in relation to questions not previously provided for.
Bierling's analysis is then followed, which distinguishes between principles
of juridical technique which have no bases in absolute truth and principles of
a philosophical character which have objective validity and may be used as a
rational means to test legal rules. And attention is directed to the emphasis
on a revived natural law in the works of Geny, Duguit, L. von Savigny, and
Stammler. The failure of the Historical School to recognize the creative force
of reason and the guiding influence of principles is regarded as in part
responsible for a reaction from the tenets of the school which has taken
jurists in the direction of Stammler's "natural law with a variable
content." Stammler recognizes the existence and the legitimacy of this
natural law of a variable content, which does not pretend to be absolute and
immutable, but which nevertheless has its place in the successive stages of
Recognizing that there is a revived natural law and that it is the duty of
the judge to make use of such a law in guiding his interpretations Saleilles sees a danger in that a judge is
likely to be influenced by his individual conceptions and his decisions may
become subjective and arbitrary. Hence if natural law is to find its place as a
factor for rendering justice some objective grounds for its applications must
be found. The objective criteria are to be found, he thinks, in the development
of doctrines and principles which, when tested by the facts and conditions of
the time, are well enough recognized to be accepted as a consensus of current
Great caution is to be taken in selecting these objective bases for
Saleilles thinks the judge in applying principles of jurisprudence should
exercise unusual care in introducing new ideas into his decisions "unless
it is a question of the application of one of the natural laws — which are
supposed to be conceived instinctively by whoever expresses accurately the
collective conscience of a time." And he observes:
That which must be placed in the foreground, and the point on
which I am in complete agreement with M. Geny, is that the judge must accept as
the basis of his methods of interpretation the idea and the conviction that
there is an individual justice existing objectively, which ought to be in
accord with the social justice of which the law is for him the imperative
expression; that, as a result, if he has the duty to guide the changing
interpretation of a law, outside of his formal texts, he must take for a guide
this absolute conviction of the idea of justice in its adaptation to the
exigencies of the social order.
But what concrete conceptions shall he form of this idea of justice and how
between two possible solutions shall he objectively decide which one will
correspond to this idea, applicable to the historic conditions of the time, I
mean to the conception of justice which one should adopt in the historical
milieu of a given time and under the social conditions which it presents. Will
he find in his conscience solely from the innate idea of natural law of which
all the partisans of ideal law speak, a definite and precise answer such as all
the judges, supposedly equally impartial, equally devoid of any personal bias,
would themselves give? It is only necessary to present the question in order to
see that considering the conditions in the progress of humanity and the
complexity of diverse clashing interests, the relationships of which are often
necessarily reversed by the law of history, this objectivity is impossible even
in an ideal sense. The answer would be given by the subjectivism of each
whether political, economic, philosophical or religious. We find ourselves face
to face with the worst dangers of what we have sometimes called, not without a
certain irony, judicial equity.
The judge has the right to make a concrete application of the ideas of
absolute justice that an ideal of abstract natural right can suggest to him,
only if these conceptions have already found an objectivity exterior to him and
susceptible to a juridical command; only if, by some experimental method,
analogous with the process of legal verification which is his first duty, the
judge finds, outside of himself, some elements of a juridical command
imperative, which he only needs to note and apply, in order to remain within
his function, which is, in other words, to ascertain the law and to declare
that it be respected.
... But again in cases where the judge should find, at any rate
in actuality, no support in the law, where he would be the first to recognize
this new principle of ideal justice which has not yet become accepted as
substantive law and to make a concrete application of it, thereby paving the
way for the legislator, in such cases it is from the juridical conscience of
the collective body that he will have to borrow its elements; and in this
regard I could only repeat what I have elsewhere said — consequently I
content myself with merely a reference — about the juridical value
accorded to sound customs and the conception of them the judge must form
wherever the law forces him to take them into account in order to pass upon the
validity of private acts. It would appear that in such cases it is the law
itself which yields before natural law, prompting the judge, as it does, to
have recourse to the latter. It would indeed seem so, if one has in mind a
natural law in process of evolution having objective bases in the popular
conscience; the contrary would appear true if one saw in it an invariable moral
formula; or, at the least, assuming it could vary, if it was used as an ideal,
it would be the personal and purely subjective system of him whose duty it is
to make its application, that is to say, of the judge himself.
These objective criteria, Saleilles believes, can be formed only by means of
legislative analogy, the collective juridical conscience, and comparative law,
by which the interpretations of judges may be guided. In this process the work
of legal scholars in what the French call the development of "juridical
doctrines" has a large place and the judge's function would be a
restricted one, for
when general opinion, under the form it takes and under which it
adapts itself gradually to the economic and social changes of a period, becomes
unanimous as to certain concepts of justice, and when this conception is such,
I have said elsewhere, that those to whom it is presented are ready to
recognize its worth, the judge has the right to make of himself the organ, not
blind and purely passive, of this inorganic sentiment of the collective
conscience, but the interpreter who becomes saturated with its inspiration in
order to adapt it to the legal juridical order of which he is the guardian and
the defender. He has not the authority to substitute at one stroke one ideal
system for another; but his mission is to draw inspiration from it, when he is
sure of his ground, in order to infuse it into his interpretation of the
general characteristics of the law, and to make of the conflict of the systems,
when these become opposed in the abstract, a workable system of justice, which
in the domain of the concrete guarantees acquired rights, giving satisfaction
at the same time to new rights which claim recognition.
The safest and scientifically the most satisfactory method of discovering
these objective bases for a revived natural law, Saleilles claims, is through
comparative law whereby the ideals of the jurists are put to the test by
legislators and judges. In the practical juridical applications may be found
their permanent and enduring qualities, at least, for the particular time and
place. It is in this connection that Saleilles gives a warning, if too large
powers are accorded to the judges in applying principles of justice, that there
is grave danger that personal and political views, not having objective
validity in the juridical conscience, may be applied as if they were immanent
truths. Thus comparative law because it brings together different juristic
concepts of natural law and reduces them to concrete formulae of juridical
application is hailed as a method of establishing a common law of humanity.
Though natural law will always serve in an auxiliary and supplementary
rôle in any national system of law it is, however, regarded as the chief
source of guidance for scientific judicial evolution.
Charmont credits the school of natural law and of natural rights with the
laying of the foundation of modern constitutional law, with the determination
of the basic principles of private and public international law, and with
certain contributions to the amelioration of criminal laws.
According to Charmont, "natural law, as the old school conceived it was
universal, immutable; for all questions of positive law it offered the ideal
solution, satisfying in every respect; and the human reason could and should
find this solution." Positive
law, then, was conceived as contingent and imperfect; natural law as the ideal,
the absolute. The new view considers natural law as variable and not
incompatible with the law of evolution. It has, in the words of Stammler, a
"variable content." In conclusion, says Charmont,
the idea of natural law, then, is differently conceived from the
way it formerly was. It rests upon another foundation, and at the same time it
undergoes certain transformations. It reconciles itself with the idea of
evolution, with the idea of utility. It loses its absolute and immutable
character; it possesses only a variable content. It takes account of the
interdependence of the individual and of the community. It thus tends to bring
into accord the individual conscience and external law instead of setting them
into opposition. In this transformation juridical idealism is not weakened; on
the other hand it has been consolidated and enlarged.
Though Charmont is an advocate of the modern theory of natural law, he
conceives the theory as a sort of an ideal standard for juristic philosophers
and legal thinkers and not as a formal rule of law to be followed literally by
the courts and the judges. In reviewing Geny's theory of free legal decision,
Charmont indicates the weakness in the former attempts to apply the theory of
natural law. "The idea of a right conceived by reason," he says,
leads "logically to the rule of formal law, to an exaggeration of the
element of legality. Law is formulated and sovereign reason; it can and it
should foresee and decide all things. The sole function of the judge is to
assure its application." And,
the traditional doctrine that the legislator settles everything
in relation to a phase of legal relations and that the judge's sole business is
to discover the legislative will has incontestable advantages. It strengthens
the interpreter in making him the mouthpiece of the law; it satisfies the
demands of our classical spirit and it seems to give great stability to our
legal doctrines. But as against these advantages, it is necessary to note
We are bound at the moment the law is made. The law, which is regarded
sufficient to itself, is isolated from the other sciences and loses all contact
with life. The respect of the interpreter for texts is only a vain appearance,
for he himself in reality creates the principles which, in order to gain for
them a semblance of authority, he ascribes to the lawgiver. These so-called
principles which are only subjective conceptions are developed so as to become
tyrannical, embarrassing science and forming an obstacle to progress.
Charmont thus recognizes some of the difficulties and gives the basis for
the criticisms which have resulted in the application by American justices of
the so-called rule of reason as a standard to test the validity of legislative
acts. The decision of a judge, thinks Charmont, "who acts as a law-maker
will always appear individual, arbitrary, and partial; it will not have the
authority of law."
A French authority, whose works are better known than those of Charmont,
also seeks to discover a new juridical idealism in which the ideal of the epoch
supplants the absolute ideal. Demogue conceives natural law as an ideal concept
rather than as a rule of positive law — as a law to be sought in the
struggle to secure harmonious adjustments of social life. He aims to find an
ideal law in the presence of certain facts, historical, economic, and
political, which appear as a result of the investigations of social science and
from the aspirations of humanity.
2. Views of Duguit and Hauriou. Though Léon Duguit was one of
the foremost critics of natural rights theories, he was one of the ablest
advocates in France of the principle that there is a law superior to the state.
Originally presented in his L'Etat, le droit objectif et la loi
positive, which appeared in 1901, Duguit's doctrines were amplified and
developed since this date. He repudiates the notion that rights may be based on
the "high dignity of the human being" and rejects the implications of the theories
of Ihering, Laband, and Jellinek that law is comprised solely of rules
established by society with the coercion of the state behind them.
Duguit sets out to demonstrate that law can be anterior and exterior to the
state. Those who recognize a law beyond the realm of state action find the
origin of this law in a deity, or in the individual, or in society. Rejecting a
religious and metaphysical basis for a superior law, and discarding the
philosophy of individual rights, Duguit turns to the social basis for a law
exterior to the state. He finds the origin of those superior rules of law in
certain norms which condition man's living in society and which form the basis
of other norms sanctioned and enforced by the state.
"We believe firmly," says Duguit, "that there is a rule of
law above the individual and the state, above the rulers and the ruled; a rule
which is compulsory on one and on the other; and we hold that if there is such
a thing as sovereignty of the state, it is juridically limited by this rule of
law." He denies, however,
that there are subjective individual rights or natural rights which furnish a
basis for these superior laws. The postulate of individual natural rights
involves, he thinks, two contradictions — the sovereignty of the state and
the autonomy of the individual. An individual right superior to the state is
considered as a pure hypothesis and not a reality. It implies a social contract
at the origin of society which is deemed a manifest contradiction. Rights, it is maintained, can arise only
from social conditions. They may be acquired only through membership in a
To Duguit the basis of law is not subjective but objective and is based on
the facts of social solidarity.
Conformity to this solidarity is not a rule of ethics but a rule of law. In
accordance with these views Duguit opposes the doctrine of unlimited powers of
the state or the doctrine of self-limitation of sovereign powers which is, he
thinks, a form of omnipotence in disguise. If there are limits on the powers of
the state there can be no sovereignty and if the doctrine of sovereignty
prevails there can be no limits to state action. The German doctrine of
auto-limitation is regarded as a
farce, since the unlimited sovereign who agrees to limits may break his
agreement at any time with impunity.
Therefore, he becomes a defender of the theory of the separation of powers
which has prevailed in America and of the practice of American courts in
reviewing legislative enactments in order to annul acts which are regarded as
contrary to the provisions of written constitutions, or to implied limitations
interpreted as inhibiting arbitrary acts. Judicial review of legislative
enactments, Duguit believes, follows logically from the theory of the
separation of powers.
The philosophy of Duguit is of such interest and significance that brief
extracts from his recent work, Traité de droit constitutionnel,
will present more effectively his advocacy of a superior law (droit) to
which all valid positive laws must conform. Presenting the dominant idea of the entire
treatise Duguit says:
The older I become, the more I study and search into the problem
of the law [droit], the more I am convinced that law is not a creation
of the state, that it exists independent of the state, that the notion of law
is altogether independent of the notion of the state and that the rule of law
[la règle de droit] governs the state as it governs individuals.
It will be seen later that this work is dominated by this idea that the state
is limited in its action by the rule of law, that this ought to be the case,
that it cannot be otherwise, and that the social order would be impossible if
it were not so. Now, this would be impossible if law were an exclusive creation
of the state or the rule of law existed only when an economic or social rule is
formulated or accepted by the state.
The characteristic ideas in relation to this higher law are more explicitly
developed in sections dealing with laws regarded as contrary to
I call contrary to right every formal law which contains a
command contrary, either to a principle of superior right, such as is
recognized by the collective conscience of the people ... or to a provision
written in the declaration of rights, or whether finally to a provision of a
rigid constitutional law, in the countries, such as France and the United
States, which have adopted such a hierarchy of laws. To facilitate the
exposition I would qualify simply as an unconstitutional law every law contrary
to a superior principle of right, written or not in a law superior to the
ordinary law, declaration of rights, or rigid constitutional law. In a word, I
use the expression "unconstitutional law," as a synonym of a law
contrary to a superior law [droit] written or unwritten.
From what I have said ... it follows that the legislator as a matter of fact
does not have the power to create law, that he can only establish and announce
constructive rules in order to put them into effect. The logical consequence of
this is that a law which is contrary to objective right or which does not have
for its end to put into effect a rule of law [droit] and to assure its
execution is a law without value, a law without executive force.
But one discerns with difficulty the practical means to repress a violation
of a law by the legislature. Since the legislature is charged with the duty to
formulate the law and to assure its sanction, one can scarcely understand how
there can be organized against it a system designed to repress the violations
of law committed by it. As will be seen a little farther on, the devices which
have been established in France toward this end have proven ineffective. On the
other hand, although it is not impossible to accomplish this end in any
country, the establishment of a similar organization has been considered only
in the countries which recognize the distinction of two or more categories of
law in hierarchical form as the United States or as France, where we have three
categories of law: the declarations of rights which formulate the superior
principles of right or law which cannot be transgressed either by the ordinary
legislature or by the constituent legislative body and the constitutional laws
which the ordinary legislature can neither modify nor abrogate. In a country
such as England, which does not recognize the distinction between
constitutional laws and ordinary laws, one never has occasion to think of an
organ authorized to test the conformity of laws with right. Besides in England
public opinion is the best guarantee against arbitrary legislative acts.
Whether there is or is not in a country an organ authorized to determine the
conformity of laws with objective right and to declare of no effect the laws
contrary to such right one need not hesitate to accept all of the consequences
of the preceding proposition and to say that to refuse obedience to a law
contrary to right is perfectly legitimate. It is the principle of resistance to
oppression affirmed distinctly by the declaration of rights of 1789 (Art. 2) as
one of the natural, inalienable, and imprescriptible rights of man and by the
declaration of rights of 1793 in the well-known Articles 33 to 35. When one
advocates this proposition he is in general classed as an anarchist, because it
is claimed no society would be possible if all of the citizens could refuse to
obey laws under the pretext that they are contrary to right. I reply that there
are laws to which no one would think of refusing obedience because they
formulate or carry into effect a rule of right which is contested by no one.
And the affirmation of the right of resistance to oppression is the best
guarantee against the arbitrary power of the legislature which would endeavor
hereafter, to make only those laws which would be given an almost unanimous
That there is a higher law to which all governmental acts must conform
whether a constitution be rigid or flexible is Duguit's main thesis. Even in
England, he finds, where the omnipotence of Parliament is considered as an
essential principle there are superior rules which the conscience of the
English people themselves would not permit to be violated by Parliament. The
existence of rigid constitutional laws superior to ordinary laws then is
regarded, not as the foundation of limits to the legislative powers, but only a
positive guarantee, of the restrictive rules which necessarily bind the
legislature of the state.
Duguit regards it necessary to go a little further and to say that
every state which recognizes the principle of its subordination
to law, which recognizes that there are laws which cannot be enacted in order
to respect this principle completely, ought to create a high court having every
possible guarantee of independence and of ability and being authorized to annul
laws contrary to right, or following a formula less general and less exact,
which would be competent to pass on the constitutionality of laws and to annul
Such high and extraordinary powers, Duguit thinks, ought not to be entrusted
to an organ established and controlled on a political basis and because of the
political influences dominating French courts he doubts whether they should be
accorded such powers.
After describing certain devices in French constitutions to establish
special courts to deal with acts regarded as contrary to the constitution and
some recent unsuccessful attempts to revive the plan of a constitutional court
Duguit defends the American doctrine as to the review of legislative
If there is no reason to establish a supreme court before which
recourse could be taken tending to have a law held void on the ground of
unconstitutionality ought we not to grant courts the authority to consider the
constitutionality of a law attacked before them and to refuse to apply it if
they judge it unconstitutional? In considering the question theoretically,
taking into consideration the nature of positive legislation and the
difficulties which arise in practice one must reply affirmatively. The courts
ought above all to apply the law — that is to say, to decide in conformity
with the law all questions of right which are presented to them. They are bound
by the law evidently, by all laws in force in a given country, by the ordinary
laws without doubt, but also and for greater reason by the superior laws
written or unwritten, particularly by the rules inscribed in the declaration of
rights and in the constitutional laws. In a country where there exists such a
hierarchy of laws it is incontestably logical that in a case of a contradiction
between an inferior and a superior law it is the latter which the courts ought
to apply, as a result of which on the same ground they refuse to apply the
inferior law. If there is a contradiction between an ordinary law on the one
part and a constitutional law or the declaration of rights on the other, the
court ought not to apply the ordinary law. Moreover, if there is a
contradiction between a constitutional law and a provision of the declaration
of rights the court ought to apply the latter and to refuse to apply the
Theoretically, then, every person ought to be permitted to contest before
any court a law as unconstitutional, that is to say, to be permitted to claim
that the law invoked against him cannot be applied by the court because it is
contrary to a superior law [droit] written or unwritten, to which the
ordinary legislature is subordinated.
This doctrine follows, in Duguit's judgment, as a matter of course from a
written constitution with a theory of a separation of powers. Referring to the
provisions which have been interpreted as preventing the French courts from
passing on the validity of legislative acts, Duguit believes the doctrine and
jurisprudence of the French courts on this matter are clearly wrong. These
texts, in his opinion, were only an application of the principle of the
separation of powers and this implies that the judges can consider the
constitutionality of laws and refuse to apply all unconstitutional laws.
Referring to doubts expressed in the first edition of his treatise that courts
might consider the validity of legislative acts, Duguit says:
I was in error and today I accept without hesitation the
solution which has been accepted and followed by the eminent jurists which I
have indicated. It appears to me evident that it is a necessary and logical
consequence of the hierarchy of laws. I consider, moreover, that among the
texts of French positive law there is none which is opposed to the recognition
of this power as belonging to French courts. On the contrary, as I have said
above, the texts which establish the principle of the separation of powers give
them this authority implicitly. I may add that a country in which one does not
recognize this authority as belonging to the courts cannot directly be said to
be under the regime of law. This system has always been practiced in the United
States. Certain inconveniences without doubt have been presented in its
application, and the Americans are the first to recognize them. These
inconveniences, however, prove rather that the difficulty lies in the manner of
the practical application of the principle by the American courts and their
method of appointment rather than in the system itself. After all, the
advantages are much superior to the inconveniences and this is sufficient to
require its application in our country.
After summarizing some of the difficulties and inconveniences in the
application of the American system of the judicial review of legislative acts
discovered by Professor Lambert,
Whatever may be thought of political tendencies which may have
appeared in the jurisprudence of the American Supreme Court, there is in the
power which American courts have to consider the constitutionality of laws an
institution highly protective of individual liberty against arbitrary
legislation. I have been able to assure myself that some of the ablest and most
independent Americans retain a profound attachment for this institution and
that the prestige of the Supreme Court is not growing less in the public
spirit. There are some who speak of government by judges. The expression is
applied by certain American authors and it is the title which Lambert gives to
his work. It is not exact. One cannot say that in America the courts of
justice, even the Supreme Court, are truly associated with the government. One
cannot even say that they exercise in a true sense control over Congress, or
that they can exercise a sort of veto of laws passed by this chamber. These
take all their force from the vote of Congress and the promulgation by the
President, which alone can exercise a suspensive veto. The Supreme Court
following the expression of Larnaude does not pass upon, to speak accurately,
the process of the making of a law. It gives a decision to a particular
litigant, but this decision requires that the court decide on the
constitutionality of the law. Evidently, the constitutionality is considered in
this large sense; and the Supreme Court ought not to be blamed, on the
contrary, for refusing to apply not only the laws which violate a written rule
of the constitution but also a fundamental principle of American law. It
recognizes and sanctions a superior law [droit] of which I have often
affirmed the existence, which imposes itself on every legislator and of which,
to their honor, American jurists are unanimous in recognizing the existence and
The doctrine that the positive rules and enactments of the state cannot
interfere with the rights which are pre-existent to all social organization
— certain absolute rights which are superior to the law itself, because
they are inseparable from human personality — is supported by different
groups of French thinkers. Many
agree with Duguit that whenever a law violates a rule of right it should be
regarded as an act of oppression and be resisted as such. Law is, then,
conceived not as a creation of the legislature; it exists in and of itself.
The rule of right gives to positive law its imperative force.
Whenever a law conforms to a rule of right it is valid and should be carried
into effect; whenever it is opposed to such a rule its enforcement should be
resisted, and particularly so when it infringes in a serious way upon the
rights of the individual. To establish and preserve such rights it is necessary
to maintain the doctrine of limits upon sovereign powers. A number of writers
on public law in France believe that the only effective guarantee for
individual rights can be established through the judicial control over
legislative and administrative acts which do not conform to the higher law or
rule of right. Certain principles
formulated in the Declaration of Rights of 1789 are, therefore, considered as
immutable and pre-existent to all social organization, and any enactments
contrary thereto are necessarily unconstitutional. To protect individual rights and to give
validity to the written provisions of the constitution it is regarded as
necessary to have an unconstitutional law declared inapplicable. In the
judgment of M. Wohlgemuth,
this remedy can best be accorded by the courts and this form of
judicial control ought logically to follow from the nature of the laws relating
to individual rights.... In refusing to apply such a law, the judge does not
exercise political power, but confines himself to the interpretation of the
law, just as he does each day, in the application of ordinary laws ...
individual rights are each day menaced by laws contrary to the rule of right
and contrary to the principle of social solidarity. These laws do not have the
force of law, if they have not in themselves certain imperative qualities. It
is logical as we have insisted for the judge to refuse to apply them. This is
one of the established features of democratic government.
"We believe, with L. Duguit, that there exists a rule of law
[droit] anterior and superior to the state, — a rule of law founded
on solidarity and on justice. It is from this rule of law that are derived
objective law and subjective rights." According to Guillemon this is not an
ideological principle but an enforceable limit on the exercise of state powers.
"From this idea that the state is bound and limited by law follows
naturally this other idea, that in the case of a violation of law
[droit], by the state, the subjects have the duty not to obey the
illegal acts and even to rebel against the state." The criminal code is silent as to the effect
of the resistance by an individual to an illegal act of an officer. Guillemon believes that impliedly the
article requires passive obedience. Referring to the comments of Esmein that
the principles of the French Declarations of Rights have no constitutional
significance today in France,
Guillemon claims that they have a "super-constitutional"
significance. There are in France, he asserts, three categories of laws:
(a) Super-constitutional laws.
(b) Constitutional laws.
(c) Ordinary laws.
The super-constitutional laws pertain chiefly to the principles of the
Declaration of Rights, which are beyond change by the ordinary processes of
legislation or constitutional amendment.
When such individual rights are violated Guillemon thinks the courts ought
to grant a remedy by checking the illegal act.
Duguit's repudiation of the concepts of natural law, of the personality of
the state, and of national sovereignty is criticised by many French jurists as
running counter to the almost universally accepted basis of French legal
thought. Accepting the
individualistic basis for natural law Professor Gavet notes how the conceptions
of this school have been misinterpreted and then condemned. He finds the
development of natural law in the progressive evolution of sentiments of law
and justice among men. "We remain," he says, "believers in the
natural and imprescriptible rights of man and, therefore, in the law of
A member of the Positivist School of jurisprudence summarizes as follows the
propositions implied in Duguit's writings:
1. That the state is no longer sovereign.
2. That the doctrine of the unity of the state is inconsistent with modern
3. That in legal no less than in political theory law is justified by
reference to the end which it serves.
4. That there is a droit objectif superior to all governments and
legally binding them.
5. That the rulers are under a legal duty to govern well, but have no legal
right to govern.
Justice Brown criticizes these propositions in turn and claims Duguit's
droit objectif is merely the concept of natural law socialized, and that
the basis of his legal thought involves "a hopeless confusion of legal and
moral ideas." Though most Positivists in France and elsewhere
unhesitatingly reject the main tenets of Duguit's legal philosophy, his
writings have had a profound effect on all current legal thought.
Geny thinks that Duguit in effect turned again to the essential idea of
natural law only under a new form,
and that seemingly repudiating the metaphysical approach to the law he
constructed a system essentially founded on vague metaphysical hypotheses.
Referring to Duguit's principle of social solidarity Saleilles calls it a
"principle of natural law after all" according to the accepted
terminology of this phrase.
However one may classify the règle de droit it is one of the
most interesting and important forms of higher law philosophy which are
affecting European political and legal thinking.
M. Hauriou is among those in France who defends the doctrine of a higher law
above ordinary written enactments and constitutions. He speaks in defence of
this doctrine under the title superlégalité
constitutionnelle. "It is an error," he thinks,
to believe that the superlégalité
constitutionnelle comprehends only that which is written in the
constitution; it comprehends equally other things, as for example, all of the
fundamental principles of organization, that is, all the principles of the
individualistic order which are at the basis of the state and the political
principles on which governments are founded ... these principles constitute a
sort of légitimité constitutionnelle, and which have force
over and above even the written constitution.
Despite the failure of the constitution of 1875 to include a bill of rights,
the principles of our public liberties are not in the written
constitution; this is certain, but they are, however, in the
superlégalité constitutionnelle, for they are part of the
légitimité constitutionnelle, which is above the written
constitution itself.... This is very important, for it signifies that no one's
liberty can be completely suppressed either directly or indirectly by the
establishment of the state monopoly. Other principles can also be ranged in the
category of légitimité constitutionnelle; the principles
of equality and of publicity in taxation, and the principle of the separation
of powers between the administrative and judicial authorities.
It is quite necessary, Hauriou concludes, to substitute for the narrow
conception of the written constitutional law that of a
superlégalité, which allows an addition to the
constitutional text of all the fundamental principles of the state understood
as forming a légitimité. Hauriou practically agrees with
Duguit in supporting the doctrine of a law superior to the state and also the
principle that the courts should review legislative acts to test their
conformity with the terms of written constitutions. In a limited manner Hauriou
and Duguit take the judiciary out of its normal and classical position and set
it up as the power of ultimate sovereignty. With certain reservations they approve the
American doctrine of judicial supremacy.
3. Higher Law Doctrines of Krabbe. H. Krabbe, the Dutch juristic
philosopher, discarding an omni-competent sovereign which is the basis and
source of law, defends the proposition that positive law is valid only by
virtue of the fact that it incorporates the principles of right
(Recht). The principles of
right are then traced to what Krabbe regards as the feeling or sentiment of the
people. In contrast with a sovereign who alone can make law he formulates a
theory of the sovereignty of law.
There is [according to Krabbe] only one source of law, —
the feeling or sense of right which resides in man and has a place in his
conscious life, like all the other tendencies that give rise to judgments of
value. Upon this all law is based, whether it be positive law, customary law,
or the unwritten law in general. A statute which does not rest upon this
foundation is not law. It lacks validity even though it be obeyed voluntarily
or by compulsion. It must be recognized, therefore, that there may be
provisions of positive law which lack real legal quality.
The legislative organ runs the risk of enacting rules which lack the quality
of law either because the organization of the legislature is defective or
because it mistakes what the people's sense of right demands. On the other
hand, it may happen even more easily that what is embodied in a statute ceases
to be law and so is no longer valid because it has lost the basis of its
binding force. In such a case compulsion, — the punishment or legal
judgment which disobedience to the statute entails, — is irrelevant.
Constraint is justified by the necessity of maintaining the law but it can
never bestow legal quality upon a rule which lacks it. Mere force, whether
organized as in the state or unorganized as in an insurrection or revolution,
can never give to a rule that ethical element which belongs essentially
to a rule of law. On the contrary, constraint can gain an ethical quality only
when used in the service of law. Thus the rule must have the definite character
of law and can derive this only from the feeling or sense of right which is
rooted by nature in the human mind.
There is, in the opinion of Krabbe, only one ruling power — the power
of law. Along with other modern juristic writers he predicates an ethical and
moral basis for law. We are convinced, he says, "that in basing the
validity of law upon the sense of right we stand upon the firm foundation of
fact, — only by establishing the authority of law in this manner,
moreover, can full account be taken of the ethical character of
Finding that there is no place for a sovereign in modern society and that
law may not be traced to any such source, Krabbe seeks a basis of law which is
regarded as better fitted to the views of modern social life.
His theory involves an insistence on the ethical foundations and emotional
sanctions for law, on the theory that the real source of law is in the
"sense for right" or "feeling for right." The spiritual
sense of man is regarded as the support of law and legal thinking. The
intellect, it is claimed, must lose its primacy in the development of law;
feminine emotionalism must offset masculine intellectualism. The so-called sense of right, it is
contended, has binding force, and rules not based on it are not law. The
inherent obligatory authority arising therefrom is due to its emanation from an
absolute, or from what is conceived as universally valid standards of right and
of law. These valid standards are built on a uniform standard of right which
exists in each individual, though the idea or the expression of the sense of
right may be obscured by unfavorable circumstances.
In order to secure unity from a diversity of opinions as to the "sense
of right" superior sanction and validity is attached to the opinion of the
majority. That "rule is to be obeyed which has quantitatively the highest
value." In order to render feasible the rule of the majority it is
contended that the majority sense of right must be conceded to be better for
the minority than their own interpretation. There is an emphatic denial of
supremacy or of superior power through organization. This is indicated in the
dictum "no power on earth can control the action of the sense of
right." There is then no authority other than the law. Law is defined as
the judgment of the community on the rightness or wrongness of conduct.
In comparing the theories of Duguit and Krabbe it is apparent that both
reject eighteenth-century natural rights theories and the absolute sovereignty
theory, as bases of law and of legal principles. Both claim that the legal
foundation which is described is developed from facts and a logical
interpretation of social phenomena. Each in turn condemns the Positivist's
theory of the state with its accompanying legal dialectics. Both believe in the
superiority or "sovereignty" of rules of right (droit or
Krabbe does not clearly dispose of implications which result from the
enactment of positive laws which lack true legal validity, such as the attitude
of the individual toward a positive legal rule which does not conform to the
sense of right or the duty of officers toward a statute contrary to popular
conceptions of right. Apparently the author regards the feeling or sense of
right as an ideal or standard toward which actual laws may only approximate.
Though he does not advocate explicitly a doctrine of natural law he finds the
source and sanction of all positive laws in a higher law doctrine which has
certain similarities with the theories of natural law and of inalienable
rights. This theory, however, differs in the source and foundation of these
rights, tracing them directly to the people, rather than to any immutable and
absolute standards to which man's legal concepts must conform.
Discarding the concept of sovereignty for the state in the field of private
law and basing all law on the sense or feeling for right Krabbe predicates a
similar foundation for international law. The difference between national and
international law results chiefly from the fact that the latter is applicable
to a larger domain and that in the international realm the sense of right is
1. "École historique et droit naturel
d'après quelques ouvrages récents," Revue trimestrielle
de droit civil (1902), pp. 80-112. For Saleilles' views regarding the
lights of the individual and of social groups, consult De la
personnalité juridique (Paris, 1910), and Georges Davy, Le droit,
l'idéalisme et l'expérience (Paris, 1922), pp. 5 ff.
2. "École historique et droit
naturel," par M. le Professeur Saleilles, Revue trimestrielle de droit
civil (1902), No. I, éditée par la Société du
Recueil Sirey, Paris, pp. 84, 85. I am indebted to the Société du
Recueil Sirey for permission to use translations of parts of this article.
3. Saleilles, op. cit., p. 87.
4. Saleilles notes that Geny wishes the judge to go
directly, without indirectness, fictions, or equivocations to the only
realities which exist outside of the text, to the inspirations of the idea of
justice, which at once takes him into the realm of natural law.
5. There is, says Saleilles, "a juridical and
social order in which the solution, entirely opposed to the one given formerly
as the immanent expression of justice, is going to appear as incarnating in its
turn the natural law of the times." Op. cit., p. 98.
6. Saleilles, op. cit., pp. 101 ff.
7. Saleilles, op. cit., pp. 105, 106.
8. Ibid., p. 108.
9. Saleilles, op. cit., pp. 108, 109.
10. J. Charmont, La renaissance du droit
naturel (Montpellier, 1910), p. 167, and Modern French Legal
Philosophy, pp. 106 ff. The natural law school, Charmont claims, was
founded by Hugo Grotius, 1583-1645; Pufendorf, 1632-94; and Burlamaqui,
1694-1748. Cf. Charmont op. cit., pp. 10 ff., for a brief summary of the
theories of the different schools of natural law or natural rights.
11. Op. cit., pp. 6, 54.
12. Op. cit., pp. 217, 218.
13. Ibid., p. 174, and Modern French Legal
Philosophy, p. 112.
14. Op. cit., pp. 175, 176; Modern French
Legal Philosophy, pp. 113, 114.
15. Saleilles, op. cit., p. 189; Modern
French Legal Philosophy, p. 123.
16. Les notions fondamentales du droit
privé, trans. in part in Modern French Legal Philosophy
(Boston, 1916); see p. 345, and especially pp. 370 ff.
17. "The affirmation that man because he is man,
taken isolated and by himself, separated from other men, in the state of
nature, as they said in the eighteenth century, is endowed with certain rights,
peculiar to his nature as man — this affirmation is purely gratuitous; it
cannot be supported by any direct proof. It is a purely metaphysical
proposition with respect to the nature, or, as the schoolmen used to say, the
essence, of the human being. This affirmation might suffice in a period of
metaphysical belief, but it is purely a verbal expression — nothing more
— in a positivist and scientific epoch like ours. It can satisfy a
believer, but it is void of all scientific and positive value." Duguit,
"The Law and The State," Harvard Law Review, XXXI (November,
18. See Traité de droit constitutionnel
(2d ed.), I, 11 ff. The chief works of Duguit, all of which have a common
purpose, are: L'État, le droit objectif et la loi positive
(Paris, 1901); L'État, les gouvernants et les agents (Paris,
1903); Manuel de droit constitutionnel: Théorie
générale de l'état-organisation politique (Paris,
1907; 4th ed. 1923); Le droit social, le droit individuel et les
transformations de l'état (Paris, 1908; 3d ed. 1924);
Traité de droit constitutionnel (2 vols., Paris, 1911, 2d ed., 5
vols., 1921-25); Les transformations générales de droit
privé depuis le Code Napoléon (Paris, 1912); Les
transformations de droit public (Paris, 1913); Souveraineté et
liberté (Paris, 1922).
For a summary of Duguit's doctrines, see Roger Bonnard, "La doctrine de
Duguit sur le droit et l'état," Revue Internationale de la
théorie du droit, 1 (1926-27), 18 ff.
19. Duguit, L'État, le droit objectif et la
loi positive, p. 12, and Modern French Legal Philosophy, pp.
246-248; also "The Law and The State," Harv. Law Rev., XXXI
(November, 1917), 23.
20. Cf., for Duguit's views in opposition to
subjective natural rights, L'État, le droit objectif et la loi
positive; Traité de droit constitutionnel, 1, 9-13; Le droit
social, le droit individuel et les transformations de l'état (2d
ed.), pp. 3-5, 10-17; Transformations générales du droit
privé, pp. 9-15; Revue du droit public, XXIV (1907), 419.
21. Traité de droit constitutionnel, I,
22 ff. For the contention that except for some surface differences Duguit is
stating old doctrines akin to the Natural Rights School, see Charmont, La
renaissance du droit naturel, p. 98, and Modern French Legal
Philosophy, p. 131. On the other hand, Duguit insists that a profound
difference separates his conception of a rule of society which he calls a rule
of right from the former conception of natural rights. See Le droit social,
le droit individuel et la transformation de l'état (Paris, 1911),
22. See Ihering's Der Zweck im Recht and trans.
in Modern Legal Philosophy, vol. V; Jellinek's System der subjektiven
offentlichen Rechte and Allgemeine Staatslehre (1900). Cf. Duguit,
"La doctrine allemande de l'auto-limitation de l'état,"
Revue du droit public, XXVI (1919), 161.
23. "The Law and the State," Harv. Law
Rev., XXI (November, 1917), pp. 123 ff. For Duguit's criticisms of the
dogma of sovereignty, see Traité de droit constitutionnel, I, 408
24. These extracts have been translated and reprinted
with the permission of Professor Duguit and of M. de Boccard, editor of his
25. Duguit, Traité de droit
constitutionnel (2d ed.), I, 33.
26. Ibid, III, 659 ff. Duguit claims if there
is no rule of law (règle de droit) above the powers of the state
there is no public law and Treitschke's characterization "Der Staat ist
Macht" is an unescapable truth. "The Law and the State,"
Harv. Law Rev., XXXI (November, 1917), 6.
27. Traité de droit constitutionnel,
28. Ibid., p. 664.
29. Traité de droit constitutionnel, III
pp. 667, 668.
30. Ibid., pp. 673, 674. Cf. Beauregard,
Monde économique (November seventeenth, 1894), p. 505;
Jèze, "Du contrôle des délibérations des
assemblées délibérantes," Revue
générale d'administration (1895), p. 411; Signorel, "Du
contrôle judiciaire des actes du pouvoir législatif,"
Revue politique et parlementaire (June, 1904), p. 526.
31. Edouard Lambert, Le gouvernement des juges et
la lutte contre la législation sociale aux États-Unis (Paris,
32. Traité de droit constitutionnel,
III, pp. 678, 679. "The American solution creates in a singular manner a
positive sanction for enforcement of the obligation resting upon the
legislature, namely, to respect the superior principles of right [le droit
supérieur] imposed upon it." Duguit, "The Law and the
State," Harv. Law Rev., XXXI (November, 1917), 18.
33. Edouard Lambert, op. cit., Introduction and
chap. 11; Wohlgemuth, Des droits individuels et de leur garantie judiciaire
specialement contre le pouvoir législatif.
34. Wohlgemuth, op. cit., pp. 22-23. To M.
Wohlgemuth, "every act which does not carry into effect a rule of right
and which creates a pretended rule of positive law, is theoretically an
arbitrary act, without force, and no one is bound by it." Ibid., p.
20. Cf. also H. Berthélemy, "Le fondement de l'authorité
politique," Revue du droit public, XXXII (1915), 663, 664.
35. Ibid., pp. 95 ff.; Hauriou, "Conseil
d'état (August 7, 1909)," Sirey (1909), III, 145; Jèze, in
Revue générale d'administration, II (1895), 241, and
Revue du droit public, XXIX (1912), 140; Albert Angleys, Des
garanties contre l'arbitraire du pouvoir législatif, par l'intervention
du pouvoir judiciaire (Chambery, 1910); Henri Desfougères, Le
contrôle judiciaire de la constitutionnalité des lois (Paris,
36. Ibid., p. 144, and Jules Coumoul,
Traité du pouvoir judiciaire de son role constitutionnel et de sa
réforme organique (Paris, 1911), pp. 214, 215.
37. Wohlgemuth, op. cit., pp. 149, 150, 156;
see also Angleys, op. cit., Pt. IV, and Desfougeres, op. cit.,
pp. 115 ff.
38. Pierre Guillemon, De la rébellion et de
la résistance aux actes illégaux (Thesis, Bordeaux, 1921),
pp. 6, 71 ff.
39. Guillemon, op. cit., p. 8.
40. Cf. art. 209.
41. Esmein, Droit constitutionnel (5th ed), p.
42. Guillemon, op. cit., pp. 10, 11. Cf. art.
11 of Declaration of Rights of 1793 to which a super-constitutional value is
43. See Guillemon, op. cit., p. 12, and the
following: Duguit, Manuel de droit constitutionnel, pp. 304-307;
Reglade, La coutume en droit public interne, p. 263; and G.
Jèze in Revue générale d'administration, II (1895),
411. Cf. also extract from Duguit, Traité de droit
constitutionnel, II, 13, 14, in which he speaks of the Declaration of
Rights as "super-constitutional" law.
Harold J. Laski notes that M. Berthélemy, a French authority on
administrative law, adopts Duguit's methods and conclusions, whereas M.
Hauriou, another French publicist, seems to reach not very different results.
"A whole school of the more brilliant younger jurists, M. Maxime Leroy, M.
Georges Cahen, M. Paul-Boncour," he observes, "are clearly influenced
at every stage of their work by M. Duguit's speculations. In England and
America its influence is already being felt." "A Note on M.
Duguit," Harv. Law Rev., XXXI (November, 1917), 188. Cf. M.
Hauriou, "Les idées de M. Duguit," Recueil de
législation de Toulouse (1911), pp. 6 ff., and H. Berthélemy,
"Le fondement de l'autorité politique," Revue du droit
public, XXXII (1915), 663.
44. Gaston Gavet, "Individualism and
Realism," Yale Law Journal, XXIX (March and April, 1920), 523, 643.
Esmein calls Duguit's doctrine "chimère anarchiste,"
Éléments de droit constitutionnel (4th ed.), p. 40. To
Hauriou, Duguit is an "anarchiste de la chaire," Revue du droit
public, XVII (1902), 348, 353, and Michaud regards his theory as
"anarchistic and incompatible with social necessities,"
Théorie de la personnalité morale, I, 52. Malberg
relegates Duguit's rule of law to the realm of ideal justice or of morality and
denies that it has a juridical basis. Théorie de l'état,
45. Gavet, op. cit., pp. 529, 530.
46. W. Jethro Brown, "The Jurisprudence of M.
Duguit," Law Quarterly Review, XXXII (April, 1916), 168, 172,
47. Science et technique en droit privé
positif, II, 191, 252, 262-264, and IV, 159 ff.; for similar conclusions,
see M. Deslandres, Revue du droit public, XXV (1908), 10; J. Charmont,
La renaissance du droit naturel (Paris, 1910), pp. 198, 199; and W. Y.
Elliott, "The Metaphysics of Duguit's Pragmatic Conception of Law,"
Political Science Quarterly, XXXVII (December, 1922), 637.
48. Gaston Jèze objects to Duguit's deductions
because, as he sees it, he fails to distinguish between "le droit
positif" and "le droit naturel." Les principes
généraux du droit administratif (3d ed., Paris, 1925), p. 33.
Duguit replies to his critics in the Traité de droit
constitutionnel, I, 17, 35, 59, 397, 497, and II, 68.
49. Droit constitutionnel (Paris, 1923), p.
298; also by same author, Précis élémentaire de droit
constitutionnel (Paris, 1925), pp. 81 ff.
50. In the United States, Hauriou believes, that where
the control of the constitutionality of laws is confided to the judges, they
have progressively developed "the absolute legitimacy of the
individualistic principles of the ancient Anglo-Saxon common law."
Précis élémentaire de droit constitutionnel, p. 82.
51. Principes de droit public (2d ed., Paris,
1916), pp. 31 ff., and Précis de droit administratif et de droit
public (9th ed., Paris, 1919), p. 996.
52. Die Lehre der
Rechtes-souveränität (1906), and Die moderne Staatsidee
(1919); the latter has been translated in The Modern Idea of the State,
with an Introduction by George H. Sabine and Walter J. Shepard (New York,
53. The Modern Idea of the State, pp. 8, 9, 39
ff. Cf. also W. W. Willoughby, "The Juristic Theories of Krabbe,"
American Political Science Review, XX (August, 1926), 509. We find in
Krabbe as in Duguit, says Willoughby, the same mistaken idea, "that an
inquiry into the idealistic or utilitarian validity of law, as determined by
its substantive provisions and the purposes sought to be achieved by its
enforcement, has a relevancy to, and that its conclusions can affect, the
validity and usefulness of the purely formalistic concepts which the positive
or analytical jurist employs."
54. Krabbe, The Modern Idea of the State, pp.
47, 48. Krabbe insists that "the whole legal system under which people
live finds the basis of its authority, its binding force, and its effectiveness
in the operation of the feeling or sense of right." Ibid., p. 126.
55. Ibid., p. 49.
56. Krabbe, The Modern Idea of the State, p.
57. Ibid., p. 88.
58. Cf. Krabbe, The Modern Idea of the State,
59. Ibid, p. 247; cf. also Edwin M. Borchard,
"Political Theory and International Law" in C. E. Merriam and H. E.
Barnes, A History of Political Theories, Recent Times (New York, 1924),
pp. 130, 131.
For a criticism of the views of Krabbe by a modern exponent of the
Positivist or Analytical School, see Willoughby, op. cit., pp. 520 ff.
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