The New State · Part III · II · Chapter 29 (1/2)

XXIX

Political Pluralism and Sovereignty

What does group psychology teach us, as far as we at present understand it, in regard to sovereignty? How does the group get its power? By each one giving up his sovereignty? Never. By someone from outside presenting it with authority? No, although that is the basis of much of our older legal theory. Real authority inheres in a genuine whole. The individual is sovereign over himself as far as he unifies the heterogeneous elements of his nature. Two people are sovereign over themselves as far as they are capable of creating one out of two. A group is sovereign over itself as far as it is capable of creating one out of several or many. A state is sovereign only as it has the power of creating one in which all are. Sovereignty is the power engendered by a complete interdependence becoming conscious of itself. Sovereignty is the imperative of a true collective will. It is not something academic, it is produced by actual living with others⁠—we learn it only through group life. By the subtle process of interpenetration a collective sovereignty is evolved from a distributed sovereignty. Just so can and must, by the law of their being, groups unite to form larger groups, these larger groups to form a world-group.

I have said that many of the pluralists are opposed to the monistic state because they do not see that a collective and distributive sovereignty can exist together. They talk of the Many and the One without analyzing the process by which the Many and the One are creating each other. We now see that the problem of the compounding of consciousness, of the One and the Many, need not be left either to an intellectualistic or to an intuitive metaphysics. It is to be solved through a laboratory study of group psychology. When we have that, we shall not have to argue any more about the One and the Many: we shall actually see the Many and the One emerging at the same time; we can then work out the laws of the relation of the One (the state) to the Many (the individual), and of the Many (the individual) to the One (the state), not as a metaphysical question but on a scientific basis. And the process of the Many becoming One is the process by which sovereignty is created. Our conceptions of sovereignty can no longer rest on mere abstractions, theory, speculative thought. How absurdly inadequate such processes are to explain the living, interweaving web of humanity. The question of sovereignty concerns the organization of men (which obviously must be fitted to their nature), hence it finds its answer through the psychological analysis of man.

The seeking of the organs of society which are the immediate source of legal sanctions, the seeking of the ultimate source of political control⁠—these are the quests of jurists and political philosophers. To their search must be added a study of the process by which a genuine sovereignty is created. The political pluralists are reacting against the sovereignty which our legal theory postulates, for they see that there is no such thing actually, but if sovereignty is at present a legal fiction, the matter need not rest there⁠—we must seek to find how a genuine social and political control can be produced. The understanding of self-government, of democracy, is bound up with the conception of sovereignty as a psychological process.

The idea of sovereignty held by guild socialists105 is based largely on the so-called “objective” theory of le droit expounded by M. Léon Duguit of Bordeaux. This theory is accepted as the “juridical basis” of a new state, what some call the functionarist state.106 Man, Duguit tells us, has no rights as man, but only as a member of the social order. His rights are based on the fact of social interdependence⁠—on his relations and consequent obligations. In fact he has no rights, but duties and powers. All power and all obligation is found in “social solidarity,” in a constantly evolving social solidarity.107

The elaboration of this theory is Duguit’s large contribution to political thought. His droit is a dynamic law⁠—it can never be captured and fixed. The essential weakness of his doctrine is that he denies the possibility of a collective will, which means that he ignores the psychology of the social process. He and his followers reject the notion of a collective will as “concept de l’esprit dénué de toute réalité positive.” If this is their idea of a collective will, they are right to reject it. I ask for its acceptance only so far as it can be proved to have positive reality. There is only one way in the world by which you can ever know whether there is a collective will, and that is by actually trying to make one; you need not discuss a collective will as a theory. If experiment proves to us that we cannot have a collective will, we must accept the verdict. Duguit thinks that when we talk of the sovereignty of the people we mean an abstract sovereignty; the new psychology means by the sovereignty of the people that which they actually create. It is true that we have none at present. Duguit is perfectly right in opposing the old theory of the “sovereign state.”

But Duguit says that if there were a collective will there is no reason why it should impose itself on the individual wills. “L’affirmation que la collectivité a le pouvoir légitime de commander force qu’elle est la collectivité, est une affirmation d’ordre métaphysique ou religieux.⁠ ⁠…” This in itself shows a misunderstanding of the evolution of a collective will. This school does not seem to understand that everyone must contribute to the collective will; ideally it would have no power unless this happened, actually we can only be constantly approaching this ideal.108 Duguit makes a thing-in-itself of la volonté nationale⁠—it is a most insidious fallacy which we all fall into again and again. But we can never accept that kind of a collective will. We believe in a collective will only so far as it is really forming from out our actual daily life of intermingling men and women. There is nothing “metaphysical” or “religious” about this. Duguit says metaphysics “doit rester étranger à toute jurisprudence.⁠ ⁠…” We agree to that and insist that jurisprudence must be founded on social psychology.

Five people produce a collective idea, a collective will. That will becomes at once an imperative upon those five people. It is not an imperative upon anyone else. On the other hand no one else can make imperatives for those five people. It has been generated by the social process which is a self-sufficing, all-inclusive process. The same process which creates the collective will creates at the same time the imperative of the collective will. It is absolutely impossible to give self-government: no one has the right to give it; no one has the power to give it. Group A allows group B to govern itself? This is an empty permission unless B has learned how to govern itself. Self-government must always be grown. Sovereignty is always a psychological process.

Many of Duguit’s errors come from a misconception of the social process. Violently opposed to a collective will, he sees in the individual thought and will the only genuine “chose en soi” (it is interesting to notice that la chose en soi finds a place in the thought of many pluralists). Not admitting the process of “community” he asserts that la règle de droit is anterior and superior to the state; he does not see the true relation of le droit to l’état, that they evolve together, that the same process which creates le droit creates l’état.109 The will of the people, he insists, can not create le droit. Here he does not see the unity of the social process. He separates will and purpose and the activity of the reciprocal interchange instead of seeing them as one. Certainly the will of the people does not create le droit, but the social process in its entire unity does. “Positive law must constantly follow le droit objectif.” Of course. “Le droit objectif is constantly evolving.” Certainly. But how evolving? Here is where we disagree. The social process creates le droit objectif, and will is an essential part of the social process. Purpose is an essential part of the social process. Separate the parts of the social process and you have a different idea of jurisprudence, of democracy, of political institutions. Aim is all-important for Duguit. The rule of le droit is the rule of conscious ends: only the aim gives a will its worth; if the aim is juridical (conformed to la règle de droit), then the will is juridical. Thus Duguit’s pragmatism is one which has not yet rid itself of absolute standards. It might be urged that it has, because he finds his absolute standards in “social solidarity.” But anyone who believes that the individual will is a chose en soi, and who separates the elements of the social process, does not wholly admit the self-sufficing character of that process.

The modern tendency in many quarters, however, in regard to conceptions of social practice, is to substitute ends for will.110 This is a perfectly comprehensible reaction, but future jurisprudence must certainly unite these two ideas. Professor Jethro Brown says, “The justification for governmental action is found not in consent but in the purpose it serves.” Not in that alone. De Maeztu says, “The profound secret of associations is not that men have need of one another, but that they need the same thing.” These two ideas can merge. Professor Brown makes the common good the basis of the new doctrine of natural right.111 But we must all remember, what I do not doubt this writer does remember, that purpose can never be a chose en soi, and that, of the utmost importance, the “new natural law” can be brought into manifestation only by certain modes of association.

It is true, as Duguit says, that the state has the “right” to will because of the thing willed, that it has no “subjective” right to will, that its justification is in its purpose. (This is of course the truth in regard to all our “rights”; they are justified only by the use we make of them.) And yet there is a truth in the old idea of the “right” of a collectivity to will. These two ideas must be synthesized. They are synthesized by the new psychology which sees the purpose forming the will at the same time as the will forms the purpose, which finds no separation anywhere in the social process. We can never think of purpose as something in front which leads us on, as the carrot the donkey. Purpose is never in front of us, it appears at every moment with the appearance of will. Thus the new school of jurisprudence founded on social psychology cannot be a teleological school alone, but must be founded on all the elements which constitute the social process. Ideals do not operate in a vacuum. This theorists seem sometimes to forget, but those of us who have had tragic experience of this truth are likely to give more emphasis to the interaction of purpose, will and activity, past and present activity. The recognition that le droit is the product of a group process swallows up the question as to whether it is “objective” or “subjective”; it is neither, it is both; we look at the matter quite differently.112

To sum up this point. We must all, I think, agree with the “objective” conception of law in its essence, but not in its dividing the social process, a true unity, into separate parts. Rights arise from relation, and purpose is bound up in the relation. The relation of men to one another and to the object sought are part of the same process. Duguit has rendered us invaluable service in his insistence that le droit must be based on “la vie actuelle,” but he does not take the one step further and see that le droit is born within the group, that there is an essential law of the group as different from other modes of association, and that this has many implications.

The droit evolved by a group is the droit of that group. The droit evolved by a state-group (we agree that there is no state-group yet, the state is evolving, the droit is evolving, there is only an approximate state, an approximately genuine droit) is the droit of the state. The contribution of the new psychology is that le droit comes from relation and is always in relation. The warning of the new psychology to the advocates of vocational representation is that the droit (either as law or right)113 evolved by men of one occupation only will represent too little intermingling to express the “community” truth. We don’t want doctors’ ethics and lawyers’ ethics, and so on through the various groups. That is just the trouble at present. Employers and employees meet in conference. Watch those conferences. The difference of interest is not always the whole difficulty; there is also the difference of standard. Capitalist ethics and workman ethics are often opposed. We must accept le droit as a social product, as a group product, but we must have groups which will unify interests and standards. Law and politics can be founded on nothing but vital modes of association.

Mr. Roscoe Pound’s exposition of modern law is just here a great help to political theory. The essential, the vital part of his teaching, is, not his theory of law based on interests, not his emphasis upon relation, but his bringing together of these two ideas. This takes us out of the vague, nebulous region of much of the older legal and political theory, and shows us the actual method of living our daily lives. All that he says of relation implies that we must seek and bring into use those modes of association which will reveal true interests, actual interests, yet not particularist interests but the interests discovered through group relations⁠—employer and employed, master and servant, landlord and tenant, etc. But, and this is of great importance, these groups must be made into genuine groups. If law is to be a group-product, we must see that our groups are real groups, we must find the true principle of association. For this we need, as I must continually repeat, the study of group psychology. “Life,” “man,” “society,” are coming to have little meaning for us: it is your life and my life with which we are concerned, not “man” but the men we see around us, not “society” but the many societies in which we pass our lives. “Social” values? We want individual values, but individual values discovered through group relations.

To sum up this point: (1) law should be a group-product, (2) we should therefore have genuine groups, (3) political method must be such that the “law” of the group can become embodied in our legislation.

M. Duguit’s disregarding of the laws of that intermingling which is the basis of his droit objectif leads to a partial understanding only of the vote. Voting is for him still in a way a particularist matter. To be sure he calls it a function and that marks a certain advance. Moreover he wishes us to consider the vote an “objective” power, an “objective” duty, not a “subjective” right. This is an alluring theory in a pragmatic age. And if you see it leading to syndicalism which you have already accepted beforehand, it is all the more alluring! But to call the vote a function is only half the story; as long as it is a particularist vote, it does not help us much to have it rest on function, or rather, it goes just half the way. It must rest on the intermingling of all my functions, it must rest on the intermingling of all my functions with all the functions of all the others; it must rest indeed on social solidarity, but a social solidarity in which every man interpenetrating with every other is thereby approaching a whole of which he is the whole at one point.