Duguit and the theory of social solidarity

The sociological school comes after the analytical and historical schools, and its seeds were found in the historical school. Its supporters include Duguit, Roscoe Pound and Ihering. The school's central image is that law and society are two sides of the same coin: one cannot exist without the other, and law is necessary for regulating society.

Duguit's own contribution is the theory of social solidarity.

The two kinds of need. Society has two:

| | How it is met | |---|---| | Common needs | Fulfilled by mutual assistance. | | Adverse needs | Fulfilled by the exchange of services. |

No one can live without the help of others; even a State cannot exist without the help of other States; no one can produce everything he requires, so he must depend on others. That dependency is social solidarity, and division of labour is what makes it work.

The three essential elements of Duguit's theory of law:

1. Mutual interdependence. In society all persons depend on each other; the individual cannot fulfil his ambitions alone.
2. No difference between State and society. Both are groups of persons; the main purpose of society is to save the people, and that responsibility lies also on the State, so the State has no special or superior status above the people. The State should make law for the welfare of the people.
3. The sovereign and the will of the people. The sovereign is not superior to the people; the sovereign of a State lives in the people, in the will of the people.

No difference between public and private law, because the aim of both is to develop social solidarity, and both are meant for people.

The proposition about rights, which is the one every examiner asks about: there is only one right — to serve the people. It follows that persons have only duties and not rights, and that there is no distinction between public right and private right.

1. The theory is vague. Social solidarity is not clear to a common person, and one cannot gain anything from it.
2. No authority is given. Duguit did not recognise sovereignty, so he provided no authority to explain solidarity. One may imagine that the judge will explain the standard of social solidarity — but there are no guidelines for judges.
3. Public law and private law are not the same. There must be an authority which passes the law, and in Duguit's theory there is no place for such an authority.
4. Public right and private right are not the same. The right of society is public right and the right of common people is private right.
5. Custom is ignored. Custom is the base of any law, and Duguit ignores it.

Duguit discards natural principle, yet the theory of social solidarity is itself based on natural law, which demands that people should serve properly according to their needs. He therefore put natural law out of the door and accepted it through the window. That sentence is worth a mark on its own in a question about either school, and it is the reason a natural law answer that stops at Del Vecchio is incomplete.

Despite the criticisms, Duguit was a sociologist who gave much to the development of society: social solidarity itself contains the welfare of the people, and his position that law should accord with social solidarity has been accepted and adopted by many writers.

• As the first half of a sociological school answer, with Pound as the second: Duguit supplies the account of why law exists — interdependence — and Pound supplies the account of how it works — the balancing of interests.
• In a rights question, as the extreme position: Salmond says every right has a correlative duty; Austin admits duties without rights; Duguit says there are only duties. Ranging the three views on one line is a clean way to open an answer on rights and duties.