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CHAPTER X

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.[1] 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.[2]

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.[3]

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 historical evolution.[4]

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[5] 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 opinion.

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."[6] 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.[7]

... 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.[8]

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.[9]

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.[10]

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."[11] 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.[12]

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."[13] And, he continues,

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 inconveniences.

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.[14]

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."[15]

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.[16]

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"[17] 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.[18]

"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."[19] 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.[20] Rights, it is maintained, can arise only from social conditions. They may be acquired only through membership in a society.

To Duguit the basis of law is not subjective but objective and is based on the facts of social solidarity.[21] 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[22] is regarded as a farce, since the unlimited sovereign who agrees to limits may break his agreement at any time with impunity.[23]

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.[24] 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.[25]

The characteristic ideas in relation to this higher law are more explicitly developed in sections dealing with laws regarded as contrary to right.[26]

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 acceptance.[27]

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 unconstitutional laws.[28]

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 enactments:

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 former.

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.[29]

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.[30]

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,[31] Duguit concludes:

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 force.[32]

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.[33] 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.[34] 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.[35] 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.[36] 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.[37]

"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."[38] 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."[39] The criminal code is silent as to the effect of the resistance by an individual to an illegal act of an officer.[40] 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,[41] 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.[42]

When such individual rights are violated Guillemon thinks the courts ought to grant a remedy by checking the illegal act.[43]

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.[44] 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 nations."[45]

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 associational tendencies.

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.[46]

Geny thinks that Duguit in effect turned again to the essential idea of natural law only under a new form,[47] 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.[48]

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, Hauriou says:

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.[49] 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.[50]

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.[51] 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).[52] 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.[53]

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.[54]

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 law."[55]

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.[56] 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.[57]

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 Recht).

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.[58] 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 immature.[59]


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, 1917), 23.

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), pp. 6-9.

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 ff.

24. These extracts have been translated and reprinted with the permission of Professor Duguit and of M. de Boccard, editor of his works.

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, III, 661.

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, 1921).

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, 1910).

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. 492.

42. Guillemon, op. cit., pp. 10, 11. Cf. art. 11 of Declaration of Rights of 1793 to which a super-constitutional value is attributed.

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, I, 212.

45. Gavet, op. cit., pp. 529, 530.

46. W. Jethro Brown, "The Jurisprudence of M. Duguit," Law Quarterly Review, XXXII (April, 1916), 168, 172, 179-181.

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, 1922).

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. 197.

57. Ibid., p. 88.

58. Cf. Krabbe, The Modern Idea of the State, chap. 10.

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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