Duguit Law in TH Modern State
Duguit Law in TH Modern State
Duguit Law in TH Modern State
K sieg-DM"""'""*"-'""^
Law in
the
modern
state,
The
original of this
book
is in
restrictions
text.
in
http://www.archive.org/details/cu31924017680145
LAW
IN
Law
Law
in the
Modern
State,
by Leon Duguit,
professor of
New York
B.
W. Huebsch
Mcmxix
B^ss-^^
COPYRIGHT, I919, BY
B.
W.
HUEBSCH
PRINTED IN
U.S.A
-<1
5
1935
CONTENTS
PAGE
vii
ix
xxxv
I
CHAPTER
THE
I.
ECLIPSE OF SOVEREIGNTY
Conception of Imperium
Eclipse of
II.
....
the
How
III.
5
.
.
IV.
Domat
6
10
12 15
V.
The
Revolution Substitutes the Sovereignty of the Nation for the Sovereignty of the Monarch
VI.
VII.
Dogma
....
...
.
vm.
IX.
20
25
And
Against
Despotism
CHAPTER
The Theory Though the
of Sovereignty
II
PUBLIC SERVICE
I.
32
35
II.
Theorists of Public
Law
Hesitate to
III.
39
IV.
V.
Which Which
Is Is
Now Now
the Basis of
the Basis of
iii
Modern Modern
Public
Public
Law Law
44 48
IV
VI.
CONTENTS
PAGE
It
54
61
VII.
Or
CHAPTER
The Nature
pulsion.
III
STATUTE
I.
II.
III.
Has the Force of Com' Meant by Normative Laws What Is Meant by Constructive Laws The Difference Between Laws and Ordinances
of
Law.
Why It
What
Is
IV.
V.
69 74 79 83 89
CHAPTER
Local Acts
IV
SPECIAL STATUTES
I.
II.
Bye-Laws
of Decentralised Authorities
....
.
96
101
III.
Disciplinary Regulations
105
Ill
IV.
V.
VI.
118
122 125
Agreements:
(b)
Franchises
in
Private
Hands
VII.
VIII.
The The
....
to
Forces
Them
128
CHAPTER V
ADMINISTRATIVE ACTS
I.
134
138
. . .
II.
III.
IV.
V.
VI.
VII.
The True Nature of Administrative Acts The State and Its Contracts The Ordinary Business of Administration
Its
142
146
.
150
151
158
CONTENTS
CHAPTER
VI
II.
The The
164
169
172 178
.
.
III.
Method
IV.
V.
VI.
Its
Legal Prohibition
of the Courts
184
191
Some Decisions
CHAPTER
The The
Irresponsible State
VII
RESPONSIBILITY
I.
197
II.
Turning-Point
in Its Evolution
203
III.
Parliamentary Responsibility
rv.
Parliamentary Responsibility
Judicial Responsibility
207 213
V.
VI.
VII.
VIII.
The
....
. . .
.
IX.
Conclusion
Bibliographical Note
247
TRANSLATOR'S PREFACE
The
trknslation of this
book
is
the joint
work
of
my
wife and myself; for the introduction, I am alone responsible. I have to thank the editors of the Har-
vard
Law Review
from an article of mine in that periodical, and M. Duguit for his generous willingness that I should add a few notes where they appeared likely to assist the general reader. For myself, I should like to add that my wife has borne by far the greater
tain passages
H.
J.
L.
YU
INTRODUCTION
intro-
duction had the general attitude it represents been at all widely known in English-speaking countries. But continental theories of jurisprudence have not
found a generous welcome where the writs of common law have established their dominion. Notable comment, indeed, there has been above all, as when Mr. Justice Holmes and the late Professor Maitland showed us how wide must be our search if we would discover the roots of our law. But just as, on the continent of Europe, English jurisprudence has
;
meant little more than an odd reference to Austin, and a partisan perversion of Sir Henry Maine, so, amongst ourselves, names that symbolize great disEugen Ehrlich, Duguit, Stammler, cussion abroad Geny remain but little known. An effort, indeed, has been nobly made to apply what seems most permanent in their teaching to the fundamental principles of Anglo-American law; and it is probable
that the historian of the next age will regard the, work
of
But
Dean Pound as an epoch in our jurisprudence. this is a movement still in its first, fitful beginit is
nings; and
X
some
book.
of the
INTRODUCTION
more notable
of
its
And
first
perspective.
We
threshold of a
new
political synthesis.
ment tow^ards what is vaguely called the socialization of law is, in fact, symptomatic of something far deeper and wider in its bearings. Distinguished thinkers all over the world have not hesitated to examine with scant respect the traditional theory of
representative government.
Psychologists like
Mr.
Graham
M. Emile Durk-
Low,^ are
uct of
all
Mr. Ernest Barker,^ Mr. Herbert Croly* and Sir Sidney of them insistent that the classic defence
government
of representative
the
Benthamites
has
in the
main, a prod-
broken down.
The
mould
to
which the
nineteenth century
life of the
would have fashioned it. The community can no longer be contained in,
its
or satisfied with,
It
is
not so
much
that has been called into question. Rather has a grave doubt been raised whether the present mecha^Cf. his
^
Human
Nature
in Politics
(1908).
(4mje serie)
The
Dem-
ocracy (1915).
^
INTRODUCTION
nisms of politics are likely to take us
the direction of their attainment.
It
XI
much
further in
was inevitable
that,
sooner or
cism should penetrate the sphere of jurisprudence; and, since it was, above all, the effort of Revolutionary France which outlined the character of the modern state, it was in some sort fitting that in France
again
the
attempt to
undermine
its
foundations
of
The
national sovereignty
central
dogma
working
class
modern became
functions
can hardly understand. Hence, of course, the revolt against etatisme which, in its broad perspective,
have arisen about the time of the Dreyfus case, The republic did not emerge unscathed from It had to turn its hand to that tremendous ordeal. the overwhelming labours involved in a general law of associations, on the one hand, and the separation But, even then, its of church and state on the other. difficulties had hardly begun. The general democratic movement had left unseems
to
Its
was inherited
Modern
directly
from
Xll
INTRODUCTION
it efficient.
make
Napoleon did no more than The result was to leave the civil
deputy who had favours to bestow and candidates for their reception. The law of associations, passed under the aegis of M. WaldeckRousseau, strengthened a movement towards tradeunionism in the civil service which, though earlier in
indirectly, of the
become
law opened up a profitable avenue of effort. The outstanding event in the decade between the separation and the war has been the
therein offered by the
its
own
servants.
They claimed
its
themselves against
arbitrary
They
de-
manded power
ests
to
and standards exactly as the workers in an ordinary trade. If they did not obtain all they desired they received, at any rate, immense concessions. They revealed the growth of what M. Paul-Boncour has happily termed economic federalism the desire of each industrial and professional group to render itself, for all internal purposes, an autonomous unit. It was a movement which essentially implied admin-
istrative decentralisation.^
The
effort of
the state
might be
unified, but
its
be various.
And
it
whether, in the
*
new
p.
For an important
criticism,
Law
of the
134f.
INTRODUCTION
tury v^^ould not be superfluous.
Xlll
Hardly less significant was the development of French trade-unionism. The workers deserted the ideal of Marx, whose purpose was the capture of the bourgeois state, and went back to the theories of Proudhon, who denied altogether its validity." It is probable that we have been greatly misled by the attractive glamour which, in this connection, attaches to the work of Sorel and Berth. The real syndicalist movement is to be found in the workshops themselves, and in the effort of men like Pelloutier and Griffuehles to develop a complete economic and social life for the worker outside the traditional categories of the state.
Political action has not been so
much
its
despised as ignored.
as
simply irrelevant.
middle
missed as an institution doing for the commercial class what feudalism achieved for the landaristocracy.
Its
owning
served
to
sovereign
has
purposes.
lies in
The
Proudhon
freedom.
He
*
understood, as
Marx
in
The
Cf.
best account
is
L. Levine, Labor
France
(1912).
^
Pirou,
Pit)udhon et
le
Syndicalisme
Revolution naire
(1911).
Xiy
INTRODUCTION
problem
lies less in
an indig-
He
gave no quarter
to the nationalisation
which was
insist
Rather did he
by the destruction of the centralised bureaucracy created by the Revolution could freedom
become
effective.
He
to
grasped, in fact,
combat in the
Two
portant.
in
im-
The
is,
France
completed by the nineteenth century." Its evils have in France been perhaps more strikingly apparent than elsewhere; and the failure of any govern-
ment
crisis.
adminserious
istrative
to
Not, indeed, that the general atmosphere of scepticism has, in any general fashion, led men away
it
method and
insight.
What
is
Cf.
Guy-Grand, Le Proces de
Wallas,
man Nature
in Politics, Introduction.
may perhaps
refer to
Problem of Administrative Areas, Smith College Studies, No. 1, for a discussion of the technical problem involved.
Humy Vol. IV
INTRODUCTION
riety of forms,
XV
absorptiveness of Paris.
tremities
and apoplexy at the centre." It is a movement which seeks the reconstitution of French local life under all its most varied aspects. It refuses to accept as adequate any administrative reform which merely aims at deconcentration. Whether it seeks
the reconstruction of the ancient provinces, the creation of entirely
new
ground
ing.
in
which
important to remember the legal backthese varied forces have been work-
The
made
it
the
effective
to it the
weapon
poses.
might achieve its purmeant the right to act without being called to answer for such policy as It was reit might consider essential to its aims. garded as a person, with the significant limitation
By sovereignty was
largely
its
an act of grace upon its own part, an assumption In England, of proportionate legal responsibility. for example, the Crown can not be sued save by perCf. Charles Brun, Le Regionalisme (1911) thority upon this subject
^^
XVI
INTRODUCTION
All sorts of limisurround the effort to sue the American state though certain constitutional guarantees, and notably the fifth and fourteenth amendments, have been intended to limit state-omnicompetence. In France and Germany, the performance of public functions acted as a release from ordinary legal responsibility. The divine right of the monarch seemed, by the convenient fiction of national sovereignty, to be transformed into what, if not by definition then certainly
tations
in result,
is
In such an atmosphere,
the sovereign state that
it is
M.
Duguit's
magistral protest.
est exposition.^^
His
earliest
book remains
full-
In a treatise on constitutional law which, in the breadth of its analysis, challenges comparison with Esmein's almost incomparable study, he
has traced
its
In three lectures
at the
Ecole des Hautes Etudes Sociales, he has effectively summarised their bearing.^^ The volume here translated relates his theories to the whole course of modern public law, and is, perhaps, the best summary of
their general result.
The
starting-point of
M.
Duguit's attitude
is,
in
" L'Etat,
2 vols. (1901-3). ^^Traite de Droit Constitutionnel (1911). i^Le Droit Social, Le Droit Individuel, et L'Etat (1908).
INTRODUCTION
reality, a sociological interpretation of the state.
XVU
He
ous of
and has been, indeed, somewhat unduly contemptuall legal metaphysics. He starts from the ob-
We
are
mem-
Observation reveals to us a mass of individuals, each with his own part to play in the world. Social life is constituted by the interrelation of those functions. This fusion of teleologies suggests, each in its due context, general principles of social conduct. sent
what we are accustomed to term the moral code and law is simply the sum of those principles within that code which have won a general legal sanction because they are necessary to the achievement of the
social purpose.
is,
clearly,
it;
independent of the
for
it is
the principle
in extent than
on which
the state
imposed on private persons, either by their compulsory co-operation to achieve the fullness of social solidarity, or by their prevention from performing such acts as might prevent any individual from contributing his utmost to It is imposed upon public perthe common good." more than upon private, because their sitsons, even uation makes incumbent upon them a greater sense These pubof their responsibility for its realisation.
depends.
far vaster
"
p.
lS7f.
xviii
lie
INTRODUCTION
we
call
govern-
ment;
M.
Duguit, a
state is
simply a society
divided into government and subjects. It would, then, be clearly absurd if the more important position of government, relative to the general social end,
What,
rule of
then,
it
is
the function of
legislation,
lays
to
law
is
made
into
statutes.
must recognise. It must respect the equality of men by which is meant, not their identity, but the general needs common to them all, of which food and shelter It must not place are the most obvious instances. hindrances in the way of each man's development,
save in the protection of the
common
freedom.
It
him freedom
of thought, of
and of
shown that, without these, individuality is stunted. It must not, similarly, impose on any persons a system of caste. It must declare nugatory any individual act which is antithetic to its rule of law. If, for example, experience has shown that the use of certain materials in industry
is
it is
ment
Above
all,
since these
" On
perience
Bank
v.
growth of governmental power with new social exMr. Justice Holmes in Noble State Haskell, 219 U. S., 104.
cf.
the observations of
INTRODUCTION
XlX
government should organise securities that can be used by the private citizen to compel their enforcement.
If this negligence continues, the right of in-
power. In such an attitude we have all the materials for a theory of the state. Experience is to suggest a rule of right conduct, and the aim of the state is its realisation.
The
state is
for,
by
its
very
is
definition,
it is
Nor
clear that
must relate itself to the peculiar circumstances of each environment in each age. But it is to be noted that the conclusions annexed to this statement are not less radical. M. Duguit denies at once the sovereignty and the personality of the state. He denies its sovereignty, in the main, on the ground that its assertion is no longer consonant with the facts; though, indeed, his attitude follows logically from his affirmation that the needs of the rule of law are alone
supreme. He denies its personality because he is determined to be relentlessly realistic in his analysis. The action of the state means, in cold fact, simply
that certain officials have carried out the order of a
minister; there
is
any personality differing from that of those concerned in the conception and performance of the order. It is true that the officials have wider powers
XX
INTRODUCTION
;
make
their
This denial of sovereignty may be arrived at in another way. Sovereignty is born of rights. M. Duguit, in substance, denies all rights, and insists simply upon the existence of duties. Each of us has certain functions to perform, born of our position in society. Our duty is to perform those functions. Sovereignty would mean the unlimited and irresponsible will of those
strict fact,
who
exercise
it;
it is
They
have power for their special function, and no more. Obviously, then, that power, being always relative, cannot be spoken of in terms implying either lack of limitation or responsibility. Everything is subject
to the rule of law.
What,
function
then,
is
is
Its
to
more varied, more imperative and more numerous. ,The whole theory of the state,
are growing each day
indeed,
is
It
is
to
them
in that di-
vision of labour
darity
is
born.
the
determination that
shall be served
by government
a special
in a
the creation of
sit-
satis-
INTRODUCTION
fied.
XXl
political in character
that
is
rather their corruption. They are simply technical operations which, like any other social act, are submitted, for their general validity, to the rule of law
whence
duced
their necessity
is
ultimately derived.
In such an aspect
the latter,
tive law.
it is
it is
is
re-
That reduction
acts;
and
M.
how
is
extending on every
of state-responsibility.^*
The
only justification for any public act is that its result in public good should be commensurate with
the force that
after all,
is is
involved in
of us.
its
A real impetus
is
thus given
is
Room
left
upon which,
from the
in
No
fact
view, draws
its
justification
that
it is
He
human
Three
^^
below.
XXll
INTRODUCTION,
he emphasises the distinction between conand ordinary legislation which is the main
stitutional
The
is
nothing so
much
of
its
as
an attempt to
make
contrivers beyond the reach of ordinary legisIt logically follows, therefore, that
lative change.
he should not merely emphasise the value of judicial review of executive acts, but should seek to extend
that control to the policy of the legislature.
It
is
policy
still
it
House
of
Commons,
certainly,
rejected."
course, since
note that
its
main tendency,
been
type of measure
It
upon the
desirability of
which
former
by popular vote
series,
^^
Hansard, 5th
p.
Speech of
Mr.
the
Asquith,
'
cf.
Beard,
of
Constitution.
^^
Hours
in Constitu-
tional
^^
Law,
in
Cf. Brooks
Adams, Theory of
INTRODUCTION
Marshall and Story has told us that he would
XXUi
disappearance of the power over Congressional legislation without regret. This is said, not so much in
criticism of
M.
Duguit,
as to indicate the
presence of
is
per-
haps absent when executive policy is considered. It is, moreover, clear that in such a system the personnel of the courts raises grave problems. foreigner in the United States cannot but observe with the deepest wonder how eagerly possible nominations for a vacant position on the Supreme Court are canvassed.^^ That is not merely true of the present time. From the period when Marshall assumed the chief
War,
;
come
to the Su-
and the method in which preme the United States became transmuted from a pioneer civilisation into the modern and positive state has largely been determined by the interpretation placed, since the Slaughter-House Cases, upon the meaning of the Fourteenth Amendment." Obviously, therefore, the issue has somewhat wider bearing than is
clear
analysis.
M.
^^
new
perspec-
Cf. the immense volume cf. testimony taken by the Senate Committee on the appointment of Mr. Justice Brandeis to the Supreme Court.
2*
Cf- Collins,
The
Fourteenth
Amendment and
the States,
XXIV
tive given to
It
is it
INTRODUCTION
by the importance of
possible, as
social groups."
he thinks, for a unified direction of the whole, centred in the Council of Ministers
no longer
London,
or,
as in
American experience,
adequately
to
us.
in the presidential
mind
alone,
grapple with the issues that confront has nowhere drawn any full picture of the tendency that is emerging but he seems to incline to an acceptance of that ideal of technical au-
M. Duguit
tonomy for each special public utility of which M. Leroy has been the sponsor. He seems also, though with some hesitation, to regard the trade-unions as destined one day to form an integral part of a state federalised not by regions but by functions. He repudiates, indeed, phenomena like the class-war; he does not admit the right to strike in the case of men
publicly employed.
In
this
aspect,
it
is
perhaps
worth noting that M. Duguit has been not a little influenced by the contemplation of feudal society. Class, to him, means simply a group of men whose functions have a specially kindred character^"; and
it is
to
the
whole
This
somewhat
static
character to
us
or, rather, it
For the
Individuel
Le Droit
Social,
Le Droit
et L'Etat.
^^
Cf.
Le Droit
Social,
Le Droit
Individuel et L'Etat,
p.
114.
INTRODUCTION
latter,
XXV
to
we must
turn,
Proud-
in reality, noth-
ing so
much
M. Duguit has
sowed.
Ill
It
would be out
Nevertheless,
come.
directed
against
M.
him
ereignty of the
restated against
state.
M.
is,
argument does not seem answerable; for, must be some one But while the criticism authority beyond appeal.
in the legal theory of the state tt|ere
it
is,
in
The
in
its
strength, indeed, of
political, rather
as
M.
Duguit's
ap-
than
its juristic,
plication.
So long
we
mere
logic of a terminology, the juristic theory of sov"' Principe Federatif Cf. especially, of the nineteenth century.
Du
one
^^The bibliography
ticles
contains a
list
of the
more important
ar-
upon
his
work.
XXVI
INTRODUCTION
it
life.
For, as
M. Duguit
its test by its applicaproblem becomes not so much the statement of authorities as the measure of
shows,
when we attempt
influence.
That, indeed,
is
fessor Gray's
theory of jurisprudence.
More
as
vital is the criticism that M. Duguit has not, he assumes, suppressed in his system the idea of
subjective law.
true,
life.
The
is
is,
it is
made
But there
which
The
essen-
period in which the fundamental content of democratic hypothesis was elaborated but an hythe
;
England alone, aroused eager and serious criticism from such minds as Fitzjames Stephen, Bagehot, Maine and Lecky, in a single genpothesis which, in
eration, can hardly claim objectivity
with any
seri-
ousness.
The
fact surely
is
one of us of what does represent the social need will so differ as merely to transfer the subjectivity involved from the order issued by the ruling
to the
officials
the subjects
who
receive
it.
INTRODUCTION
So
fact
too, it
XXVll
may
be suggested, with
M.
Duguit's de-
upon which
is
built
and from
is
our
lot.
That
development of our capacity for that purpose; and this, of course, involves the condemnation of much But, if this bows out of the present social order. rights at the front door, it is only to admit them again at the back; for if our virtue is thus to be what T. H. Green called our positive contribution to social good, obviously we must demand, have the right to demand, that nothing shall hinder the performance of our
service.
that service
is
to
whether or no we call them rights, will, in point of hard fact, represent substantially the same thing.^'
M.
is
applicable
them
it
of something eternal
is
hardly valid as against a theory of "natural law with changing content" such as that for which Stammler stands as
and imprescriptible;
but
sponsor.
What, indeed,
as
M. Geny
^* Cf. W. Wallace, Our Natural Rights, in his Lectures and Essays; and Laski, Authority in the Modern State, chap. i.
XXVUl
out/"
is
INTRODUCTION
needed in M. Duguit's system is less the scientific denial of any metaphysic than the admission For of the metaphysic in reality implied therein. his refusal to take much heed of philosophic jurisprudence he has, indeed, support so distinguished as that of Mr, Justice Holmes, who seems to regard ideas of right and wrong as nothing more than debased upon the verdict of a transient Such scepticism, it may be suggested, does not in reality meet the point against which it is postulated. The modern theory of natural law, with the ethical and psychological assumptions upon which it is based, does not lay down any eternal or immutable laws of human conduct; it simply urges
sires that are
majority.^^
which are valid so long as the conditions they resume obtain. Such a generalisation must be
clusions
for a scepti-
cism which refused to act except in the presence of mathematical certitude would never act at all. Nor
is it
number
of cases
in
which unanimity
good.
who
law
of a specific church,
may
which
is
at
once
^^
Law Review
for
No-
vember, 1918.
INTRODUCTION
xxlx
empirical and pragmatic, seems necessary to the functioning of any legal system. It is, in fact, no more than the teleology by reason of which it is existent.
Sovereignty apart, the main burden of the criticism M. Duguit has encountered, has centred about his denial of corporate personality. Where, indeed,
as
with
M.
is
held as being no
is
more than
/
/ /
/
/
/
a debate about its convenience. hold the doctrine in a wider form the
is
Here,
it
may
perhaps
is
the
not,
way
in
which
the
problem
to
be regarded has
on the continent, been stated in its most useful Anglo-Saxon jurisprudence has been fortunate in that its definition has come, not merely from one of the most distinguished, but also from one of "Whenever the most practical-minded of lawyers.
form.
men
common
purpose," Professor
Dicey has written,^^ "they tend to create a body which, from no fiction of law, but from the very nature of things, differs from the individuals of whom The nature of that body is essenit is constituted."
tially a
we
are deal-
unified,
made
in
responsible, no one
ed.), p. 154.
who
is
England (2nd
XXX
INTRODUCTION
moment
;
dispute.^'
M.
sion
Duguit, certainly, does not deny it for the admisis involved in the urgency with which he insists
collective responsibility.
upon
He
is,
indeed, hap-
pily free
from
which
endow
associations with
German
and
will,
different
from
M.
quence.
IV
Lastly,
it
may
M. Duguit in England and America. In England, for the most part, those ideas which approximate to his own have not come from
tellectual affiliations of
the lawyers.
The
and Professor Dicey has noted in the concurrent revival of the idea of natural law a phenomenon of which the results are not very different from those to which M. Duguit looks forward.'^ From this
rection
;
^^ Cf. for the injustice that otherwise results, an article on the personality of associations in 29 Harv. L. Rev., 404.
^*Theorie de
2=
la
Law
INTRODUCTION
particularly important; and especially in
its
xxxx
phase of what
is
called gild-socialism,
it
shows, in
with his theories.^^ His criticisms of parliamentary government have been independently worked out by Mr. Graham Wallas in two books that are already classic"; and if Mr. Wallas has been less constructive than critical, where he has dealt with problems of organisation, it has been obvious that the synthesis he envisages would meet with M. Duguit's keen sympathy. On the theory of sovereignty itself, the starting-point of all recent enquiry has been Maitland's
classic
analysis
of
corporate
personality.
Here, indeed, his conclusions have been antithetic to those of M. Duguit; but since Maitland denied the pre-eminence of the state-corporation over all others, the Austinian idol disappeared from his system. Dr. Figgis, in three admirable books,^^ has done much to dissipate the notion of an omnicompetent state; and no one has done more than he implicitly to answer the adverse criticisms of Professor Dicey upon the fedThe whole tendency in England, indeed, eral idea.
cuCf. Cole, Self-Government in Industry esp., chap. iil. rious volume, Liberty, Authority and Function by Ramiro de Maeztu, attempts to give gild-socialism a juristic basis in M. Du'
guit's ideas.
"Human
(1914).
to
=8
Nature
in
Politics
(1908);
The Great
;
Society
The Divine Right of Kings (2nd ed., 1914) Grotius (2nd ed., 1916) ; Churches in the (1913).
xxxii
INTRODUCTION
from government
action.^'
The
social prob-
lems
ing,
it
function-
is
ripe for
new
discovery.
America
The
sown.
classic
home
ground more
It
is,
fertile for
such seed as
tendencies in
significant
and
Mr.
Justice
eral adventure."
at
which, in the
law
has so
earnestly laboured
sistent
with
M.
Duguit's conclusions.
In a very
Mcllwain
*^
has offered a
Cf. my Problem of Administrative Areas; 1-3 [Smith College Studies, IV, i].
Republic, Vol. XII, p. 234. v. Haskell, 219 U. S., 104. *2The High Court of Parliament (1910). *^ Progressive Democracy (1915); and see his remarkable article, The Future of the State, in the New Republic, Sept. 15,
*"
" Noble
Cf.
The New
State
Bank
1917.
INTRODUCTION
xxxiii
But it is above all in the background of English and American life that the broad accuracy of M.
Duguit's interpretation finds
its
of
a belief in the
Fourteenth
The very limitation of the much-criticised Amendment only means, as Mr. Justice
that legislation
must be reasonably conceived, and adopt reasonable means of execution; and since that term is a matter
of positive evidence,
it is
We
are
bring
seem likely
upon
their meaning.
We
much by
uses as
by the
results it
can obtain.
The
is
decline of
to
be inter-
inability to
new demands.
end of each institution of which we make consistent dissection and enquiry. In America, unlike England, there has been less
speculation than elsewh'ere as to the
that
is
being evolved.
1916,
show
nineteenth century
transformation.
In America,
xxxiv
INTRODUCTION
years that the problem has become sufRciently acute Yet it is already to merit an urgent examination.
Commonwealth
is
travelling gives a
new
significance
to ancient terms;
and the
The kind
guit has
background for public law that M. Duserves with accuracy to describe the content of the changes we have been witnessing. Based, of course, on French experience, it needs adaptation to fit English or American affairs yet, in its broad perspective, it is not inconsistent with the facts Certainly no student who patiently examat issue. ined this effort could fail to draw from it at once enlightenment and inspiration.
of
drawn
H.
J. L.
AUTHOR'S INTRODUCTION
It is perhaps worth explaining why there is a special importance in the present development of the theory
of the State.
Law,
phenomenon,
is
In a sense, thereis
formation of
its
law.
a
is
little
deeper.
The
real justifi-
mo-
ments in its existence when, even while obeying the general law of its life, it undergoes a change that is especially fundamental in importance, so it is in the Everything seems to make it history of peoples.
clear that
State.
we
We
merely descriptive.
the evidence conclu-
However
at the
little
we may
like
it,
grating.
very base of our political systems are disinteSystems of law under which, until our own
system that
is
The new
to replace it is built
xxxvi
Author's introduction
Whether
it is
those
mark
a progress or a decline
not our
business to enquire.
scientific social
theory can
meaning
in such terms.
no narrow change that we are witnessing. no legal institution it does not involve. Theories of private law, the family, contract, property, these, no less than the institutions of public law, are deeply concerned. And while this evolution knows no geographical boundaries save those of civilization, it has developed in France with peculiar intensity. It has seemed the mission of France to stand in the forefront of all epoch-making change in institutions and ideas; she holds open the gate through which the sister nations pass. There is thus perhaps a peculiar fitness in the study of these changes from the standpoint of its French significance. I have elsewhere discussed this change in so far as it touches private law.^ I propose here to discuss its
It
is
There
is
Analysis will
two transformations are in fact parallel and similar. Not only do they come from like causes but they permit of resumption in an identical formula. A realistic and socialised legal system replaces an earlier system that was at once abstract and
that the
show
individualist in character.
^The Evolution of Private Law (1912). [This has been translated in the Continental Legal Historical Series in the volume
entitled
tury.
Law
in the
Nineteenth Cen-
author's introduction
The
theory of the state under which the
xxxvii
last cen-
were
a political
many people served with They were, so it was conto the final loyalty of men. They hinterland won for science. It was
It
had
its
Dec-
and
its
Constitutions.
The
it
legislation of
a full expression
so profound unique pres-
an influence as
tige
Two
state.
The
nation, so
we
are
viduals
who compose
it.
constituent individuals
is
superior to the
This superiority
or sovereignty.
consists in
what
is
we
it.
call public
power
The
nation
organized.
volition.
a,
It has built a
government
to represent
That government
name
of the nation
sovereignty of which
cannqt be deprived,
The
xxxviii
author's INTRODUCTIO]S[
organised as a govdefinite territory.
is
The
it
organised nation
sovereignty and
It is
by virtue of
law
that
it
controls
its
members.
Its
commands As
members
which
exercises sov-
name
is
in
is
its
very
Its
very basis
the sub-
command.
to the sub-
The
at
to
is
opposed
It
is
a natural right,
once inalienable and imprescriptible. It belongs the individual by virtue of its humanity. It is a
For
the state
was founded
to assure
men
protection for
in the
So
it
was proclaimed
"The
i.
Law
author's introduction
xxxix
end of all political association is to preserve the natural and imprescriptible rights of man." Clearly, therefore, the first rule of constitutional law obliges the state so to organise itself as to secure the maxi-
mum
human
is
compelled
neces-
power
to
also.
organize its defence against external enemies; for its self-maintenance is essential
It
is
compelled
if
is
to
be secured.
The
state then must organise an armed force for the purpose of war. It must also organise internal order, for it is by internal order that individual rights For the latter purpose a obtain social protection. police-service becomes important. Finally the state submits itself to an objective law based on the subjective right of the individual. Two
its
place,
when
leits
state
and one of
members,
must be decided by a court that the state has organised with every guarantee of competence and impartiality. The decision of that court must
it
xl
Author's introduction
state.
be accepted by the
again must
if
by a court which
every
A respect
univeris
made
For
essential.
is
We
power which
state.
That power
is
consequence has the duty of giving the utmost protection to such individual rights. It is therefore compelled to limit those
the individual.
The
with the rights of all an obligation which entails the creation and function of military, police and judicial services. Such, public law which, inherited briefly, is the system of from the past, was formulated with a marvellous precision by the legislation of the Revolution. It is
rights in so far as they conflict
a subjectivist system.
state there is
To
vidual.
opposed the subjective right of the indithat right is at once a limitation of sovereignty and the imposition upon the
Founded upon
right
It
is,
which
is
power
command
state.
the
as a
The men
AUTHOR'S INTRODUCTIpN
when down
eternal principles.
It
xll
seemed obvious to them and jurists of all times and countries would have no other task than the deduction of their logical consequences and the control of their
that the legislators
practical application.
ferent.
The result has been very difScarcely a century has elapsed before the
is
two basic
see
and
We
now
that both of
abstract
conceptions useless for any juristic system that is to be truly scientific. It has long been clear that divine
delegation does not explain the right of sovereign
National delegation is no more satisfactory. The national will is the merest fiction.^ In reality, all that we have is the will of some individuals and that will, even if it be unanimous, is still only the will of a sum of individuals, that is to say, an individual will with no right to impose itself on any one who resists it. So it becomes clear that Rousseau's Social Contract, even if it has been the Bible of several generations, and has inspired the Revolution, is still, with much splendour of style, only a tissue of It is clear, too, that man cannot have natsophistry. ural rights in his individual person simply because by nature he is a social being. Man as an individual The very idea of is a mere creation of the intellect.
power.
' [See, per contra, Bosanquet, State (London, 1909), chap, v.]
The
Philosophical
Theory
of the
xlii
Author's introduction
life.
If,
then,
man
he can have them only from his social environment, he cannot impose his rights upon it.* We have witnessed in the last half of the nineteenth century an immense economic change. The rigid and abstract system of law constructed by the Revolution can no longer be harmonised with that change. The economists have shown us how in every domain of human activity a national economy has been subThe family can no stituted for a domestic economy.
has rights,
longer satisfy
human
needs.
A vast organisation,
of
Nor
is
that
all.
Scientific discovery
and indi-
human
That
widening so greatly. To organize war, police and justice is no longer adequate. The state must see to it that a whole series of industrial functions are in organised
the function of the
state
is
*
why
clusions, in
Mr.
F.
H. Bradley's famous
essay,
My
Station and
Author's introduction
operation.
single
It
xliii
must prevent their interruption for a Such is the obligation imposed upon the ruling class by the conscience of our age. Clearly enough, it is incompatible with the idea of sov-
moment.
ereignty.
tions that
War,
its
police, justice
these
are indeed
is
is
it
supply needs.
We
recognise
that
governing
power; but they retain power today not by virtue of the rights they possess but of the duties they must perform. Their power therefore is limited by the degree in which those duties are fulThe functions they have to achieve form, in filled.
classes still retain
The
may
it
be summarised
exerts in return
as follows
The
ereignty.
It has a
power which
which
Its
as they
plying to superior and subordinate, to a power that can command and a subject that must obey. All wills
are individual wills
;
all are of
is
no hierarchy of wills. The measure of their difference is determined by the end they pursue. The will
xliv
author's introduction
;
its
valid-
derived from
its
moreover, a relation that permits of degrees. it is that the idea of public service replaces the idea of sovereignty. The state is no longer a sovIt
is,
So
ereign
power
issuing
its
commands.
It
is
group of
individuals
who must
supply the public need. The idea of public service lies at the very base of the theory of the modern state.
No
its
CHAPTER
system and inherent in it; others are external and hinge on philosophical, political, and economic considerations. Indeed, every legal theory is the product of these three factors.
The idea
we find
in the
was the product of a long historic evolution; yet the conditions under which it was formed gave to it a somewhat artificial and precarious character. It
riod,
ought therefore
evolution
to
when subjects demand from their something more than the services of defense,
lice,
of po-
institutions
1
LAW
origin to
IN
Roman
was almost completely eclipsed. Its reappearance It was the action of lawis a modern phenomenon. yers who mingled royal power with the Roman imperium and feudal lordship to make the sovereign power of modern law. In the i6th century Bodin
it
outlined
its
theory; he
made
of sovereignty a per-
In 1789 the nation him. Law found the legitimacy of act in the doubtful philosophy of the Contrat
Social.
legal theory of sovereignty dates only from the beginning of the Roman Empire. It was the possession of the people as a whole. Capable of being delegated to a single man it was confided to the prin-
It was thus possible for the emperor to concentrate in his person all those powers the Republic had divided between the different magistracies. The imperial power was founded on a twofold authority; on the one hand the proconsular impression derived from the system of prorogation, and on the other the tribunitian power derived from plebeian constitutions. The emperor obtained the imperium either from the Senate or from the Army. The people, by the lex regia, transferred to him the
tribunitian power.
In the course of a natural evolution the emperor came to possess both the imperium and the postestas,
^
Cf. Ulpian, L.
i.
Dig.
De
Const., prin. 1, 4.
3
It
command
was no longer a right exercised by popular delegation it had become a right inherent in his character.
;
The development
is achieved at the end of the third century under Diocletian and Constantine. If in the sixth century the Institutes of Justinian still speak of
it
is
as a piece of
antiquarianism, a
phrase copied literally from a text of Ulpian. The fact w^as that the Roman Emperor equaled his will with law. Quod principi placuit legis habet vigorem is a maxim derived from the fact that the emperor now possesses full sovereignty, can, that is to
say,
impose
it is
his will
on others
cause
therein possesses a
quality entitling
nius of
to general obedience.
So the ge-
Rome
later to be called
sovereignty^which was
power
to re-
During the feudal period this theory of the imperium was almost eclipsed. When the Western Empire was overwhelmed by the barbarian invasions
the ephemeral effort of Charles the Great did not
prevent European society from organizing itself in a regime of contract. The various social classes were
co-ordinated in a scheme which agreement made hiDuties and rights were reciprocally imerarchical.
4
posed.
LAW
IN
He was
demanding
texts of the
own prom-
In the
period
we do
word imperium. Rather is the current phrase concordia, that which unites men, be they strong or weak,
by a
series of reciprocal rights
and
duties.^
Despite
is
which
the
middle age
Yet the notion of imperium did not entirely disapIn Germany it was maintained for the empear. peror's benefit; in France it was retained to the royal profit. Even in the feudal world the king remained
the great dispenser of justice.
At
the very
moment
a
when
the Capetian
shadow,
men
to obtain
peace by justice."
Church," M. Luchaire has rightly pointed out, "which above all made the crown the fountain of
justice.
The
whole purpose of the royal office was justice and peace. The oath taken by Philip I and his successors at their coronation bound them to give to each the justice that was his due, to do right to all, and to
give to the people satisfaction for
claims."
^ ^ ^
its
legitimate
Cf. E. Bourgeois,
Le
Capitulaire de Kiersy-sur-Oise,
p.
320.
I,
40.
Regne de Philippe
I,
1912.
elements in the reconstitution of the imperium. By a skillful combination of Roman memory and feudal
institutions the royal lawyers rebuilt for the
King
of
France what the emperor himself had formerly posIt was the king, so they taught, as an individual, who possessed the imperium; it was his property and the legal interpretation of the royal imperium derives from the idea of individual ownership. Just as an owner has an absolute right over his goods, so, in the same sense, is the royal imperium an absolute right; just as an owner can dispose of his goods in whole or in part, can give rights over them, can split up his right of property, can transmit it to his heirs, in the same way the king can alienate his imperium in whole or in part, can split it up or transmit it after his death. So was formed the patrimonial conception of the state a conception so dominant at one time in Europe as to leave profound
sessed.
Two
its
On
ories
Roman
the-
among
Since
their position
king's efforts to
LAW
IN THE
MODERN STATE
dominium. Feudal law in the second place, under the empire of very complex circumstances, established a close relation between power and landed property. There is power only where there is landed property and its possession similarly implies a Of course, as I have pointed out, certain power. even at the height of the feudal regime the king was recognized to have a power so personal as to be independent of his land. But the feudal conception had spread too widely not to influence even the notion Kingship indeed was more than suof kingship. zerainty; but the power of kingship was regarded above all as a right of suzerainty and logically therefore, as a property-right.
When
memory of Roman ideas of dominium the outlines of the new system were already clear. The power to command is a right analogous to that of property. The king, as a person, is the possessor of that right.
In modern terms
his person,
is its it is
model
of pri-
IV
From
regime built up a precise and complex theory. I cannot here discuss it in detail; but it will not be useless in
explaining
is
ereignty
how
sovcite
from the three jurists clearly expounded the principles at public law during the monarchy.
Loyseau, for example, writing at the beginning of the seventeenth century, described the king as follows
:
"The king
is
above
all a
power
and above
. .
all a
lord with full ownership of public power. . Also for long the kings of France have had sovereign
power by
:
In the
Treatise of Lordship,^ Loyseau takes up in detail the same idea "Lordship in its broadest sense is defined
as proprietary power power in common both to public office and to lordship; property distinguishes lordship from office, for the power of office is de. .
rived from
divides
its
exercise
and not
public
Loyseau then and private types.* "Public lordship is so called because it concerns and deals with the right to command public power and public can only be exercised by a public person lordship is called in Latin imperium, potestas, domSo if imperium is a lordship it ination seigneurie." is a property and by definition therefore every lordIt is perhaps worth noting that ship is a property. Loyseau himself draws a distinction between propfact of property."
lordship
into
*Traite des
Offices,
Bk.
II, chap,
ii,
i.
p.
6).
Ibid.
LAW
IN
THE MODERN
STATfi
erty in public and property in private power, Between public lordship and private lordship: "He who is submitted to private lordship is a slave; he
who
is
is
a subject."
This theory is summarized by Domat in a concise and vigorous sentence/ "The head and centre of the king's authority in the state and the starting point of its expansion through the body politic is his own person."
This power, a patrimonial right personally posby the king, has been called sovereignty since the end of the sixteenth century. In its origin sovereignty was not the power of the king, it was only a special character attached to certain lordships and notably to royal lordships. The two Latin words from which the term sovereignty seems to be derived, superanus and supremitas, describe the owner of a lordship who is independent of any other lordship or, as medieval lawyers phrase it, whose lordship depends only on God. Sovereignty in this sense is found quite clearly in Beaumanoir. For here it describes certain feudal lordships. In
sessed
no suzerain, for "each baron is sovereign in his But the character of sovereign belongs barony." ^ above all to the king: "for the king is sovereign and
'Le Droit Public, tit. iv, sec. *La Coutume de Beauvoisis,
11, 22).
1,
No. 3
(ed. of 1842,
has the right of general control over the kingdom." ' From the beginning of the second half of the eleventh century the term sovereign is applied exclusively to the king and in the sixteenth century Pasquier could write " "the word sovereign is usually applied to all who are the first dignitaries of France
;
:
it
has
become attached
is
It
of frequent oc-
currence in linguistic history, that the word sovereignty, originally attached simply to a single char-
power
less
itself.
It
to
mean
the royal
first
used the
word
and thus began, at least in part, the endwe have inherited. He defined sovereignty as "the absolute and perpetual power in the state." Then he analyzes what he calls the charThe first and most essenacteristics of sovereignty. " is "to command all in general and each in partial ticular and that without the consent of its superior,
in this sense
controversies
equal or inferior."
It is
clear, therefore,
that to
Bodin sovereignty is simply the power of the king and that is the meaning of the term in later history. Loyseau himself, who for the most part regards sovereignty only as a quality inherent in certain lord^Ibid, chap.
Ixi, sec. 72 (11, 40, 7). Recherches sur la France, Bk. VIII, ch. xix (ed. of 1723,
"
795).
*^
1,
<Je
la Republique, Bk.
I,
ch, vii
^nd
xi.
lO
ships,
sometimes uses the word to designate the royal first used sovereignty in its original and feudal sense, soon came to abandon it and adopt Bodin's view that it was the totality of
The king
it
exerts
it
just as
is
he
Sovereignty
a prop-
so unified that
vided or alienated.
it is,
with the exception of certain restrictions derived of things, an absolute right. So the edict of 1770 asserts that the pretended fundamental laws cannot restrict sovereignty. It is manifested
above
all in statutes
of the
Such are the origins of the idea of national sovereignty. It becomes one and indivisible, inalienable, and imprescriptible. Formulated in law, it expresses the national will. So at least we have been taught by the declarations and constitutions of the Revolutionary period. These formulas are as arti^^
ii,
14-15).
^*
De
la Souverainetq
du
roi,
Bk,
I,
ch,
ii
II
they express; or, rather, this conception of sovereignty, as the subjective right of a person, was an historical product which was to dis-
appear with the circumstances which gave it birth. Yet it did not. Every one knows the teaching of Locke, of Mably, of Rousseau and of Montesquieu. Every one knows the influence and prestige in France of the American
Full of admiration for its teaching, the Constituent Assembly was yet deeply impregnated with the monarchical conception. It was fortunately discovered that by a simple verbal change
the monarchical theory of sovereignty could be easily reconciled with the teaching of the philosophers and Constitution.
American Constitution. All was necessary was to substitute the nation for the king. The king was a person, a subject of right, the holder of sovereign power like him, the nation will
the principles of the
that
;
ereign power.
will
be a person, a subject of right, the holder of sovThe sovereignty of the king was one and indivisible, inalienable and imprescriptible; nor
national sovereignty be here different.
The
Declaration of Rights and the Constitution of 1791 say categorically that "the source of all sovereignty
fundamentally in the nation. Sovereignty is one and indivisible, inalienable and imprescriptible. It belongs to the nation." " For very different reasons, it is true, but with significant results, that same theory could be discovered in the
resides
. . .
"Art. 3
gf Constitution of 1791,
tit.
iii,
art, 1,
12
LAW
IN
When
with those of monarchical theory, -they could not but impose themselves on the legislators of the Revolution. For if the latter were monarchists by tradition and temper, experience and sentiment
had made
of
them philosophers.
VI
The
nation, as a person,
power
to
comis
mand which we
organized nation
call sovereignty.
;
The
its
state is the
it is
thence that
sovereignty
mans) is the right of the state which consists of the mass of rulers by which its sovereign personality is
made
manifest.
It
is
its
interior organization,
and regulate
its
relation to
are
within
its
it;
where
it
its
own.^^
ception
^'
as I
have described
it,
I3
when
produced
it
The
personality
of the nation,
which
is its basis,
was sanctioned by
monarchical tradition with the principles of a political philosophy which at that time received the enthusiastic adherence of all thinkers. The monarchical tradition is almost dead and its supporters cannot revive it. new philosophy, more fitted to our needs, is being elaborated. With its emergence the conception of sovereignty outlined above can hardly long survive.
Nevertheless,
it
under the
aegis of causes
as quasi-religious in
on the Revolution, de Tocqueville called one chapter "How the Revolution, though political, evolved
a religious Revolution
:
The
causes of this
"it
phenomto tend
enon." "
the
"Because," he
says,
seemed
human
race than to
mere reform of France, it awakened a passion more violent than the greatest political revolution had thus far been able to produce. ... As a consequence it became a kind of new religion, imperfect indeed, without a God, without dogma, and with no
independent
its
life.
it
flung
soldiers, its
apostles
and
its
of the world."
The
basic
dogma
" Chapter
III.
14
It
LAW
IN
was because it was accepted as a new faith, that it was able, even though the product of a peculiar historical environment, not merely to obtain acceptance but even to survive the circumstances that produced
it.
and politisome degree a religious and a mythical character. In each of them is to be found as the secret of its grandeur and its strength some myth to which the conscience of a people of a race, even of an epoch, has passionately clung. Such myths seem to act as principles of action and sources of energy. They clothe in concrete form an abstract They give to that idea a superhuman and ideal. mysterious quality which inflames the imagination
It
is
cal
movements have
when man's
Sovel has rightly said that the myth of Christ's divinity struck
blow at paganism. In our own day a noble spirit like Peguy could see in the Dreyfus case the myth which might regenerate the modern world." Sorel has preached with the same purpose the myth of a general strike. These are no more than the dreams of generous thinkers. But the myth of national sovereignty
is
It
awakens the enthusiasm of men. It overturned the It infoundations of the old monarchical Europe.
spired every political constitution of
ern world gives evidence.
Its
"Notre
Jeunesse (1910).
15
and unchanging world which was the Chinese Empire. But a belief in a myth is by its very definition the
belief in
something that
is
contrary to fact.
Inevis
its
creative fecundity
ex-
its kingdom. In our own growth of the critical spirit, with the obvious weakening of religious faith, myths, if they can still be formed, have yet but a short term of life.
The mythical
power
sessed.
But its creative virtue as a principle of acand of progress is passing away. It is in too evident contradiction with definite facts. It is powtion
erless to protect us against those
who hold
political
class
power.
It cannot secure
formed.
VII
was no class or party in the nineteenth century which did not accept It is innational sovereignty as a religious dogma. deed true that those who drew up the preamble of the Charter of 18 14 affirmed the permanence of the monarchical principle and divine right; but that was
rare exceptions there
a platonic concession to the wishes of Louis
With some
XVIII
and
it
l6
LAW
IN
ereignty;^' but
its
criticisms
had no practical
result.
Peerof in-
form
power.
But
lections of
men and
wills.
made up
ity,
. . .
of numbers.
They
interests
The
is
only force
or
more
in
its
We
deny
due
to their wills
merely because they are wills." ^' That courageous utterance found an echo either in Parliament or in the country. The Revolution of 1848 was made in the name of national sovereignty; and it was again in its name that the monarchies of Europe were overthrown. Universal and equal suffrage and the majority principle which is illogically deduced from it
'^^
l_Cf.
and
my
Duguit, Law and the State, 31 Harv. L. Rev., chap, Authority in the Modern State, ch. iv.]
Series,
ix,
Vol
70, p. 360.
17
has
From France
With
it
a change.
the beginning of
is
new century
de-
fined
by asking what
been ably and boldly criticised. August Comte tilted in his powerful fashion against it. "In the thirty years of my philosophical career," he wrote, "I have always pictured the sovereignty of the people as an oppressive mystery, and equality has seemed to me an ignoble illusion." Since then the dogma has declined, and no one has more powerfully attacked it than the theorists of the Action franqaise and those of revolutionary syndicalism.^"
ereignty possesses.
The former do not deny the existence of public power. They urge, however, that it does not belong
which, from its naIt can belong, ture, is incapable of self-government. as French tradition has long taught, only to a na-
to the nation,
tional
interest
is
at
From
point,
Deherme
though he
The
power and, drawing their inspiration from Proudhon urge that economic organization ought to replace and
2"
is
Democratie.]
l8
tion.
LAW
I
IN
is
rendered the
Guy-Grand.^*-
M.
Of
would be
fruit-
normal theory of sovereignty could adapt itself to the facts of to-day. But everything goes to show that it is in flagrant contradiction with the social and political change that we are witnessing, and with the disappearance of its efficacy, it has become
less if the
even harmful.
There are innumerable social and with which the Revolutionary theory
is
political facts
of sovereignty
incompatible.
(i)
Na-
which
in fact
is
nation; (2) national sovereignty is by definition one and indivisible it implies the suppression in the na;
is
a vigorous existence.
state
there is often no correspondence between and nation can be immediately shown. Sometimes the same government controls several distinct groups each of which is undeniably a nation. Often enough these nations are even rivals and remain
That
common
subordination to supe-
Of such
la
Em-
Le Proces de
Democratic (1909).
19
a striking example.
It is
an agglomeration of
its own. one can speak of an Austrian national will that is one and indivisible; no one can say that the Austrian state is the Austrian nation in its political aspect. The Czechs of Bohemia, the Germans of Austria, the
No
and
Istria, the
Poles of Ga-
Where
is
is
there a collec-
the subject?
Nobody
an English people, but it is not less certain that the Irish people are no part of it. The United Kingdom is of course a state but it is not
;
What we
have
tions.
Again the power of government is exercised over large number of individuals who, without forming
an autonomous nation, do not favor part of that nation of which the state is principally composed.
Every government
not subject to
it
exerts
territory.
The
state
without being members of its constituent nation. The inhabitants of the French colonies are subjects, without being citizens of the French state. There is thus a large number of persons subordinated to the
French government without being members of the French nation. Such facts make impossible the ordinary theory of national sovereignty; but the very
20
LAW
IN
VIII
Sovereignty being, like the national person which possesses it, one and indivisible, the same men and
the same territory must be under unified control.
is it
a person
and
its
will
is
sovereign
command, and there cannot be on its territory any group which shares in its sovereignty. There are numerous texts of the Revolutionary period in which this principle is consecrated. It is sufficient to mention the first article of the preamble of the third clause of the Constitution of i^lgi, which has already
been cited: "Sovereignty is unified, indivisible, inalienable and imprescriptible. It belongs to the nation and neither a part of the people nor an indiBut this principle is vidual can claim its exercise."
two facts of increasing importance decentralisation and federalin the modern world ism.^^ To-day many countries with a unitary system of government, and particularly France, move
inconsistent with
alism
is
almost the
ready Federal
^"^
states
without doubt
[_Cf.
my Problem
of Sovereignty, Appendix.]
21
am
concerned
at the
moment,
is
a system in
which num-
ber according to the state in question, exercise certain prerogatives by means of organs and agents re-
garded
activity
more or
local
rior authority.
is
a very clear
It holds
example of a
power,
it
has a police
nent domain.
can levy taxes, it has the privilege of emiThese powers yare exercised by organs
as
and
agents
representatives
said, this
is
of
the
commune.
Whatever may be
been skillfully suggested, in the effort to conciliate such a disharmony, that the national state voluntarily concedes a part of its sovereignty, that
it it
de-
termines
how much
it
it
can
that
re-
always take an
served.^^
back;
fact,
all
of
which
is
is
taken to
mean
indivisible
sovereignty
thus
implicitly
The
however,
still
is
on the national
tory a public person possessing certain sovereign powers which yet forms a part of the national person.
^* [This is the strict juristic fact. Cf. the classic chapter on Non-Sovereign Law-making Bodies, in Prof. Dicey's Law of the
Qjnstitution.]
22
LAW
this
IN THE To
MODERN STATE
if
But
sovereignty
is
indivisible.
it
urged that these decentralized groups are not really sovereign, that though they exercise sovereign power,
remains undividedly attached to the indivisible national person. This is the merest quibbling. In point of fact local groups qua local groups cannot exercise sovereignty. The only persons who
sovereignty
itself
will.
can are local agents, because they alone have a real It is therefore urged that the state remains
state
As
It
is
to
tralisation
essentially constituted
upon the
exists
on the same territory only one nation but several states invested as such with sovereign power. Every federation is divided into a central and federal state which is the nation regarded as a state and local groups which, themselves states, constitute the federation.
Some
dogma
of
the sovereign
M. Esmein
is
one.
The
federal
state,
sponding
ereignty.
.
23
taken by the constitution from the participating states and transferred to the federal state." ^* M. Esmein
But the German and Swiss problem which has a special practical meaning for them have had to make immense yet unfruitful efforts to resolve it. Some, like Seydel, have urged that only the constituent states are states and that the German Empire is not an empire at all.^^ We can understand why a Bavarian lawyer should take this point of view, but to urge that the German Empire is not a state seems to go beyond the due limit of paradox. Other writers have suggested, on the contrary, that only the central state is really a state and that there is in law no difference between a decentralised area in a unitary country and a constituent state in a federal counThis again is contrary to obvious facts; and try.^ even if it were true, it would explain nothing; but the difficulty would still remain that the mere fact
is
natural.
who
of decentralisation
ereignty.
is
incompatible with
state sov-
Two
Laband and
Jellinek,
have tried to solve the problem by saying that there can be and are non-sovereign states." In this view the constituent states of a federation are
''^Op.
2=
cit.
(5th edition), p.
6, 23.
6.
fiir
Seydel,
das deutsche
1,
5f.
Jellinek,
Allgemeine Staats-
24
states
LAW
IN
possesses sovereignty.
show
that sov-
ereignty
is
Despite their effort, the atit. simply because neither Laband nor Jellinek explains the differences between a decentralIn ised area and a constituent state in a federation.
certain quality of
tempt
is
fruitless
to
without result that Gierke in Germany ^* and Le Fur in France ^* have exhausted the resources of ingenious subtlety to explain the difference between the unitary and the federal state even while the soviereignty of the latter remains one and indivisible. In
It
is
their
unitary state
shows a correspondence between state-unity and national unity. There is only one state as there is only one nation; there is only one sovereign person the
state,
a corporation of states
they com-
bine to
state.
of the federal
They
cratic state.
cal trait
They
participate
and
demoa con-
As
very substance.
"L'Etat
Federal, p. 697f.
2^
No
Nor
sovereignty.
To
nothing at
all.
how,
if
sovereignty
is
the indi-
some of
its
prerogatives.
this
We
lems.
have dwelt on
problem because
de-
modern publicist as the root of all probImmense efforts have been made to solve it. They have only shown that there is an implacable
fined for the
IX
This insoluble antinomy is not the cause which has destroyed the idea of sovereignty. It might even have persisted despite everything
in
its
if
men had
believed
is
practical efficacy.
The
exact contrary
the
case.
The modern
what
we demand from
its
judicial
so derived.
A legal system
it
is
which
creates
and sanctions
men
It is
moment
of time.
;
for
if
faction of them,
26
LAW
IN THE
MODERN STATE
law-giver and a jurist and so without validity or Any system of public law can be vital only so force.
far as
rules
:
it is
power cannot do certain things second, there are certain things they must do.
First, the holders of
;
profoundly convinced that an imperialist system of public law can give no security that these rules can be established. They feel that befeel to-day
Men
They understand
its
futility
It
of course true that when in 1789 the National Assembly proclaimed and defined the dogma of sovereignty, its main thought it is its chief claim to determine at once the basis and extent fame was to of the limits of sovereignty. Their answer was the Declaration of the Rights of Man. They postulated as an antithesis the sovereignty of the state and that
call
is
liberty.
They
limited by
the right of the individual and that the state can act
it
does
it-
But individual
liberty
must
that only
possible.
upon
becomes
If, then,
it is itself
There thus
is
arises a
twofold question:
In what degree
liberty to
be
27
What
guarantee have
we
The
answer, and
the
is
made only by
to say,
its
by
repre-
(Declaration
of
the
Rights of
Man
[1789], Articles 4 and 6.) But these, as experience has shown, are the frailest
of guarantees.
postulates as
fundamental the completest individualism has today but few adherents. Most men see in it only an abstract argument defended just as all such doctrines
find their defenders, but not otherwise.
to say that
it is
That
is
only
is
a dead doctrine.
in a
Assuredly there
some guarantee
Its
liberty.
partisanship in government.
law
is
passionate, eager
justice.
voted directly by the people, it is the work of a crowd possibly without relation to
It
is
ereign being formed only of private citizens neither has nor can have interests opposed to theirs; as a consequence, sovereign
to its subjects since
^^
viu
28
LAW
IN
desire to
reads as no
members."
To-day
this
tragic sophistry.
There is no greater guarantee if the law is passed by an elected parliament. Parliament indeed has
rightly affirmed that
it
is
the individual
work
of a
few depu-
When
it
1848
all
was believed
good
faith,
was saved.
d'etat.
The
coup
The
Empire, enlightened men's minds as to the guarantees be expected from universal suffrage. Indeed the conception of sovereignty has always been, both in theory and practice, an absolutist conception. At the beginning of the Contrat Social Rousseau declares that "it is against the nature of a body for the sovereign to impose a law he cannot enforce, so that there is not and cannot be any kind of binding public law; not even the social contract, on the body of the people." He justifies this proposition by a strange piece of sophistry. "Whoever," said he,'^ "refuses to obey the general will may be constrained to do so by the whole people, which means nothing else than that he may be forced It was in the name of this doctrine that to be free." the Convention laid on France the burden of its cruel tyranny; and the two Napoleons did not hesitate to
to
"7iW, Bk.
I,
ch. vii.
29
Those German jurists who like Gerber and Laband wished to make the imperial despotism into a legal
theory use Rousseau and his false conception of sovereignty for a similar purpose.
That is not all. The ruling class to-day must not only abstain from certain things, but must perform other things. therefore need a system of public
We
law
in
which
Now
in this
very nature impossible. This was not obvious when the state provided no more than police, military and judicial services. Indeed, the holders of power must naturally take measures for the defence of the territory and to impose order and In so acting they serve their own interests, peace. defence against external hostilities and the since maintenance of order within are the very conditions under which they retain power. From another point of view when governmental activity was limited to the performance of these services, their acts appeared as simply unilateral comobviously by
mands.
jurisdiction of the
The imperium of the Roman Emperor, the Roman magistrate made itself apparent above all as a right to command. The kings of France, who inherited the Roman tradition under
the same attributes. and 1791 it was desired to When, therefore, in 1789 determine and analyze the content of governmental activity, it seemed no more than the power to coma
different
name,
inherited
30
LAW
IN THE
MODERN STATE
mand; and upon that basis the theory of the three powers was constructed.
To-day
to as a result of a
complex transformation,
economic and industrial change, the business of government has gone beyond the provision of justice and police and of defence against war. They are required to perform the most numerous and varied services, many of them of an industrial character. They are what the Germans call in their mass Kultur: government must perform the activities necessary to the development of the individual well-being, physical, intellectual and moral, and the material prosperity of the nation. The interest of government It is is no longer identical with that of its subjects. not opposed to it, but it is, definitely, distinct from it.
The
tions.
result
is
to create the
imperial system.
It
is
limited by liberty.
But
to the
is
demand
the co-operation of
accomplishment. When, moreover, government performs these functions what is revealed is not command, the prerogative of a sovereign will, or the manifestation of the
3I
imperium.
When
lic instruction,
gives help to the poor, or assures transto relate these activities nearly
portation,
it is difficult
or remotely to a power to
state
command.
Now,
if
the
by definition and by nature is a group which commands, that must always be its nature. If the
state is not sovereign in one only of never sovereign.
its
activities it is
every day
lighting,
educational, the Poor law, public works, telegraph and telephone the intervenes the railwaysthe but
postal,
Yet
which
increase
systems,
state intervenes,
it
in
manner
and ordered by a
But
this
be based on the theory of sovereignty. It is applied to acts where no trace of power to command is to be found. Of necessity a new system is being built, attached indeed by close bonds to the old but founded
on an entirely new theory. Modern institutions, under the new and fruitful jurisprudence of the Consetl d'Etat, take their origin, not from the theory of sovereignty, but from the notion of public service.
CHAPTER
II
PUBLIC SERVICE
The idea of public service is to-day replacing the old
theory of sovereignty as the basis of public
is
law^.
It
tinction
new attitude. So soon as the disbetween rulers and subjects was established, the idea of public service was born. So soon as it was understood that certain duties were imposed on rulers from the fact of their power and that the justification and meaning of its exercise were therein to
not, of course, a
were obvious.
it
What
is
new
is
the important
place that
Here, indeed, is the source of the profound change we have been witnessing. It is no longer an a priori
formula.
situation.
I
It has
of our actual
There
neglect.
is
we must
not
The
They do
PUBLIC SERVICE
are sufficiently
33
numerous
to
be significant.
Every-
has entered a
new
phase.
The
theorists in
their turn
admit that sovereignty no longer occupies the most important place in public law. In the imperialist
system
it
was
power was
a right, a subject
be limited, that it is only sometimes a person, that it may on occasion have a dual personality, each distinct in its nature. Hesitaits
domain ought
to
tions
and contradictions of
is
this sort
show how
criti-
cal
is
we
are witnessing.
It
We
may
re-
call the
speech of
M.
monument
to
Scheurer-Kestner.
M. Clemenceau
Already the
spoke
as follows
"The
die
was
cast.
crowd
bas.
And
is it
The
we
democracy is not a in the sense in which the partisans of authority interdemocracy must be the govpret government
. . .
34
LAW
IN
ernment of reason. But if we expect from these temporary majorities the exercise of the power which was used by our ancient kings, all we shall have achieved is to change the source of tyranny." ^ A little time earlier M. Barthou expressed an analogous idea when he wrote: "It is necessary to live with the times and not to perpetuate in our customs the dogma of a sovereign and infallible state of which ^ the civil servants are the resigned and dumb slaves."
It
is,
to-
wards proportional representation reveals the same tendencies. This interpretation, of course, is not based either upon the unstable attitude of certain statesmen or the change of heart produced among some of them who are no longer in power. They are but the chance vagaries which any serious observer of social facts has the right to neglect. But no one can deny that there exists in France an intense belief in electoral reform which far-sighted statesmen of every party have quite clearly understood.^ They
perceive quite clearly that
fied
which expresses
is
an electoral majority.
That
to 217,
On the
the
day (July
of
lo,
1912)
first
Chamber
Journal
Deputies
officiel, 4 Feb., 1908. Quoted in L'Humanite, Feb. 1st, 1906. [C/. Georges Lachapelle, L'CEuvre de
Demain.
Paris,
1917.]
PUBLIC SERVICE
ties
35
should be elected by the system known as the scrutin de liste, with minority representation we
reached an important stage in the evolution of public law. It was not only the desire to establish a better
electoral regime, to remove, so far as possible, the in-
What, above all, it meant was the recognition by the French Chamber
tion against political intrigue.
is
modern democracy;
is
no
state.
dogma
of sov-
merous editions of his book on Constitutional Law M. Esmein writes with always the same calm and
strong certainty
cation of the
"The state is the legal personifination, ... it is the subject and the
:
law found in yielding to a sovereignty outside and above those who exercise it at any given moment an abstract and an ideal subject which personifies the whole nation. This person is the state. Its essential
basis of public authority.
is
The
basis of public
quality
is its
relation to sovereignty."
ed., pp.
1-2.
36
LAW
The same
IN THE
doctrine
is
MODERN STATE
accepted by
many German
Laband.
theorists
and notably
in the writings of
What M. Esmein
however, they call public power and they reserve the former term
calls sovereignty,
we have no
is it as
concern.
with both,
while
M. Esmein accepts
a result of observations
German
tocracy.^
jurists is
at least the
appearance of legality
publicists
French
dared
to
di-
admit
it
it
to themselves.
They
under the pressure of facts Sometimes while they deny the personality of the state they desire to maintain the idea of sovereignty, which, thereby deprived of its necessary basis, becomes almost ethereal. I cannot attempt here to summarise these doctrines. I can only point out in a few words how two writers who are admittedly among the most representative of French publicists are led to the denial of sovtion of sovereignty but
they reduce
to a nullity.
ereignty.
So long ago
de
^Laband, Droit Public, above all, Vol. I. [See this well brought out in Joseph Berthelemy: Les Institutions Politiques de I'AUemagne Contemporaine, 1915.]
PUBLIC SERVICE
37
Droit administratif (1909), M. Hauriou has written that "sovereignty and law are no longer of primary importance since they do not any longer fundamentally determine the practical interaction of forces." On page 235 of his Principes de Droit Public (1910) M, Hauriou said "These theoretical reserves (the theoretical limitation of sovereignty) do not
make
lief in
it
its
false
power of the general will. Few doctrines have had so evil an influence as that
the absolute
doctrine."
This
is
new
M. Hauriou
states
it,
is
even more
strik-
He admits that there is a power to command, he does not make that power a subjective right; but he does not create a juristic person as the subject of What he does see is an actual that pretended right. power to compel. "The whole social organisation of a country," writes M. Hauriou,* "economic no less than political, derives from a mass of established situations kept constant by this power to compel. The real function of this power is to create and to
. . .
It
is
garded as a simple form of command and constraint without due attention being given to purpose. The real function of power is to create order and This function it fulfils with more or stability.
. . .
less success.
is
Power is
legitimate
adequate."
38
LAW
IN
M.
Hauriou's thought. Clearly, for him, sovereign power is no longer the essential element in public
law.
The
is
restricted in
its
domain
to a
kind of
juristic effort at
arrangement.
Doubtless the power to compel continues to exist; but it continues to exist not so much as a subjective
right inherent in the state as a social function.
social function
is
This
service; so that
M. Hauriou
is
practically recognises
for a
modern system
Like
of politics.
is
clear in the
work
of
M.
Ber-
M.
not, for
him, a subjective
"Governmental
. .
acts,"
dispensable only
subject of rights.
of
The when we
.
in-
the use
power is
in
A civil
servant
who
if
ereign right.
What
he does
is
and
ensemble of such functions may be said to constitute sovereign power." I cannot here enquire whether M. Berthelemy is consistent when, after having said that what is comthen,
will, the
'
you
PUBLIC SERVICE
monly
called
39
power or sovereignty is simply a function of the organs that build up the state, he distinguishes between functions based on the right to command and functions in which commands are merely obeyed. The distinction has given rise to immense controversy with which I shall deal later. But it is important to remember that both these thinkers insist that sovereign power is a function and not a subjective right to command. Both therefore eliminate from public law the subjective right of power and base it simply and solely on the idea of a social function the rulers must fulfil. This idea of a social function which both statesmen and political theorists are beginning to place, as they begin to perceive it, at the very root of public law is no more than the idea of public service. We must
now
define
its
elements.
Ill
These are
They
consist es-
is
to say of those in
who
This idea, as we shall see, solves every problem by which we are to-day confronted in public law and thus is selfdemonstrative; nor do we desire any other proof of But, for precision's sake, it is imporits accuracy.
tion the fulfilment of certain tasks.
who
what
is
40
LAW
IN
is
imposed upon
already been
sovereign and
collective
person
in
We no
power
ma
more than
the
dogma
of divine right.
The
who
Why
tions
and how do they possess it? These are queswhich can receive no general answer. The fact
is
of possession
and
social forces
which vary
in each country.
Gov-
ernmental organisation cannot evade the categories of space and time. But all these elements, however
important, are not of primary significance.
The
broad fact remains that in any given country there is a man or a group of men who can impose on others
material constraint.
is
power
Right
could be assumed
when we
believe that
it
came from
a divine investiture or
lective personality
from
a delegation of a col-
and as such had a will superior To-day, however, these religious and metaphysical beliefs have passed away. The power of governmental control is no longer a right but simply a power to act. If the right of government has passed away, its obligations remain. In every age the mass of men felt that the holders of
to individual wills.
in
PUBLIC SERVICE
41
return for certain services and to the degree in which they perform those services. Times without number
have lost political poweir because they no longer rendered the social services which were the conditions of its existence.^ This feeling, long dimly felt by men, is to-day everywhere understood. That is why we do not merely affirm it but rather search eagerly to determine, as the essential problem
social classes
of the
tions.
modern state, the legal basis of these obligaIt would of course be easy to postulate a
ethical systems.
moral obligation based on one or other of current But no ethical system escapes criticism.
Any
ethical solution
is
what it is fashionable to call an intuition, and not from a rigidly scientific affirmation. The modern mind demands for its social problem clear solutions based upon the seasoned observation of facts. It is not moreover a merely moral obligasonal impression,
tion that
is
imposed on government;
it is
also a legal
obligation
a scientifically organ-
ised sanction.
When
is
we have
It
is
of government
current doctrine the right of the individual himself could give rise to a legal obligation on the part of
government. To-day, however, individualism is seen to be not less precarious than any other ethical sys*
of Social
Revolutiops, 1913.]
42
LAW
since
IN
at
bottom simply a metaphysical hypothesis. Nor can it give rise to any other than a negative obligation when our requirement is something positive. Rousseau, the high priest of individualism, realised this when he admitted that the right of the individual cannot limit the omnipotence
it is
tem
"It
is
body politic," he said," "for the sovereign to impose a law he cannot enforce." If, then, government is that which has the greatest power of constraint, can they be bound by laws so superior in efficacy as to impose upon them negative and positive obligations? If their actions are thus limited do they still possess supreme power? Is it a contradiction in terms to speak of legal obligations imposed upon supreme power? German theorists would seem to accept this standpoint. Like Seydel," they urge "that it is an undoubted truth that there is no right without sovthe
ereignty, above sovereignty, or coequal with
it.
Sov-
This
is
in
no sense
true.
a conclusion generates no
at bottom,
law is the creation of the human conscience it may be asserted that legal obligations are imposed on government simply because we are to-day determined that it shall not be otherwise. We may assert that fact because, as I shall
show,
we have
spon-
modern
Bk.
I,
chap.
vii.
"Grundziige
PUBLIC SERVICE
State
ij-S
simply to give a positive sanction to these obligations. Sociological jurisprudence has sought to determine the facts from which they are derived.
seems to me clear that its real basis social interdependence." That attitude doubtless
Personally,
it
is is
open
it is
to serious objections
the fact
still
remains that
our problem. It is important, moreover, that this idea of governmental obligation should be so widespread. Law and the rule of law are derived from the profound belief of the mass of men, that a given rule is imperative, that a certain task must be accomplished. Law, in brief, is above everything the psychological creation of men determined by their material, intellectual, and moral needs. That
tion to
adventure.
If
it is
seems equally clear that it can only maintain itself in any durable fashion through the belief of its subit
This
true
stition
whether the belief is accurate or not. Superand ignorance may well make a government
seem profitable to its subjects when in fact it is not. There has been a vital element of political power and
" Cf. my
tionnel,
L'Etat, Vol.
I, p.
I,
p. 23f.
Vol
14f,
44
LAW
IN THE
it is
MODERN STATE
worth noting, is quite outside the realm of the social contract. That theory suggested that men united by an agreement and gave up their natural isolation so was born a sovereignty and collective will which constitutes government. The fact, on the contrary, is that we have to start with a social group. The distinction between rulers and subjects is spontaneously produced and the former's power is imposed on the latter to a degree which varies with the belief and its utility. There exists then an intimate relation between the possession of power and the obligation to perform
;
certain services.
It
is
government.
All over
his
the world to-day every ruler, emperor, king, president, minister, parliament, holds
own
is
so
widespread that every statesman repeats it to nauseation even while in fact he tries to obtain the greatest advantage from his position.
IV
ment
govern-
PUBLIC SERVICE
4^
and in a state of flux. It is even difficult to define the general direction of such change. All that can be
said
is
number of
as a
activities related to public need grows and consequence the number of public services grows also. That is logical enough. Indeed, civilisation itself is simply the growth of all kinds of needs that
can be satisfied in the least time. As a consequence, governmental intervention becomes normally more frequent with the growth of civilisation simply because government alone can
of meaning."
I
^^
make
civilisation a thing
at
every time perform three functions: (i) National defence; (2) the maintenance of internal security and
order,
and (3) justice. To-day these services are not enough. There are indeed some economists of the study antiquated enough to say that the state has no other function than defence, police and justice, and that all other activities must be left to individual arrangement which usually assures a satisfaction of all For such theories the facts are too social needs.
strong; the
It has other
modern
demands,
for example, a
demand
that
the state no longer regard education as a private affair and, in the material field, that the state organise
the
work
Cf.
of charity.
industrial change that
I,
my
pp. 100-1.
'46
LAW
IN
has taken place over the world has created new governmental obligations." The clear interdependence
of peoples, the solidarity of
economic
interests,
all
growhands
im-
and
scientific discoveries,
munication.
permanently assure international comSo in the modern state the postal and
mary importance.
That
and internationally, that is imposed upon the modern state. It shows the solidarity of the rights and obligations by which nations are linked together. Within each state, an economic transformation has occurred which may be briefly characterised by saying that in almost every field of activity a national
economy. As a regroup are made more dependent upon one another even for their daily and elementary needs. For these purposes the family group is hardly sufficient. Its external relations have become essential and the activity of those relations is too vital to admit of interruption. It has become the business of government to ensure their permanence. Examples could be given to repletion. The time
a domestic
men
of the
same
social
^^ [For the history of this change in England cf. Dicey, Law and Public Opinion (2nd edition), especially the Introduction. For France cf. Weill, Histoire du Mouvement Social.]
PUBLIC SERVICE
has passed
rier.
47
public car-
his
own
To-day
to
whatever
social class
he belongs he
groups charged with this service. Both our habits and our economic needs cannot suffer even the shortest suspension and this makes plain every day the greater necessity of organizing transportation into a public service. In the great towns we need tramways and a public motor service; throughout the country we need railway service.
possessions,
;
office,
tends to
become
Not only
public lighting
but also private have been similarly transformed. The peasant in the Hinterland of Auvergne and Brit-
no longer content with the little oil or wax candle by which his parents' home was lighted. The
tany
is
time
is
when
new
demand
electric light.
So soon
as this
becomes a primary
need
it
invention of white oil has caused an economic and industrial revolution which is only at its beginning; and the transportation of electric energy will certainly be governmentally organized in the near fuIt is this that explains the great law of June ture. 15, 1906, on the distribution of electric energy. We need not insist on these economic considerations. What they show in brief is how law evolves under the empire above all of economic needs. I have shown how the theory of sovereignty suffered eclipse immediately it was understood that the duty
The
48
LAW
IN
of the state
ternal tranquillity.
of the state
environ-
ment.
lows:
and development of
it is
tion.
Were
which
such service as needs to be publicly organized could be determined, I should suggest that it is to be found
in the social disorder that results in the suspension
even for a short time of that service. In October, 1910, for example, the French railway strike, partial and short-lived though it was, showed clearly that railroad transport has every element of a public service.
by the disaster that it might well have entailed, showed that the time is coming when the coal miners must be organised as a public service, and when Mr. Asquith persuaded parliament to impose upon the coal owners the duty of establishing a minimum wage he took the first step towards their transformation
into a public service.
Such
is
is
Public law
is
no longer
PUBLIC SERVICE
$9
a mass of rules which, applied by a sovereign person with the right to command, determine its relations between the individuals and groups on a given terri-
its
subjects.
The
modern theory of the state envisages a mass of rules which govern the organisation of public utilities and
assure their regular and uninterrupted function.
The
do not make
rule
is
their appearance.
the
governmental obligation to organize and control public services in such a fashion as to avoid all dislocation.
The basis of public law is therefore no longer command but organization. Public law has become objective just as private
law is no longer based on individual right or the autonomy of a private will, but upon the idea of a social function imposed on every person. So government has in its turn a social function to fulfil.
The
Their detailed examination will show that the formula I have suggested is not merely a theory but actually an induction from the facts. It follows that if governmental action is not the exercise of a right to power it has no special character.
ately clear.
What
quality
it
possesses,
what
effect
derived from the end it has in view. determines the nature of law. In all the imperialist
system law
ereignty.
is
It is
above
all a
command formulated bj
50
the
LAW
IN
sovereign and so imposed upon his subjects. That is no longer the case. Law is simply the for-
mulation of a
facts
rule, the
which government
Most laws
are
util-
Law
is
The importance
the
obvious.
It sets
method in which law to-day functions in a clear Government is legally obliged to ensure the light.
utilities.
operation of public
puris
Their character
sets
before
itself.
The
The
private
which may
pre-
vent
its
legal operation.
That
is
to say that
public
law."
relation to an
Administration thus takes its character from its end connected with a public utility.
must, of course, distinguish between administra-
We
and an act performed by a humBoth of them, howble servant of that government. ever, have a character in common that is derived from the purpose by which they are determined. We need, therefore, make no distinction between the
tion properfy called
Above
p.
all,
"
C/.
(5th ed.),
If;
and
PUBLIC SERVICE
we need make no
official
'51
distinction
between
acts of
admin-
and those in which the humble merely carries out his superior's will. Public utilities have thus an objective character. The law which governs them is only the recognition and operation of a general governmental duty. All administrative acts have a similar character because they serve a similar and public end. In these formulae the new system may be resumed. Government and its officials are no longer the masters of men imposing the sovereign will on their subjects. They are no longer the organs of a corporate person issuing its commands. They are simply the managers It should thus be clear, of the nation's business. contrary to the usual notion, that the growth and
istrative authority
extension of state activity does not necessarily increase the government's power.
creases, their duties
trol
is
Their business inexpand; but their right of conextinct because no one any longer believes
in
it.
It
is
Government has an immense budget, and wealth is the main element in power. It is indubitable also that the growth and
public
expensive.
both taxation and the area of governmental control. It may be added that since, in a democracy, election
is
considerations
make
their
way
in per-
52
LAW
IN
deadly in a democratic regime. There is truth in all this, but it does not alter the
fact.
Day by day
greater.
Theoretically
difficult to
But
it is
deny that
its
power
in fact in-
hand is the important fact power is counterbalanced, if not outweighed, by the movement towards decentralisation which is becoming one of the main charactercreased.
On
the other
istics
of governmental evolution.
to the functions of
government is to bring some service under its control with the guarantee that That, howit is to be operated without interruption. ever, does not involve the immediate and direct subOn the jection of its officials to government control. contrary, in many old and some new services there is coming more and more to be established a system of In some cases decentralisation under divers forms. the method has been that of local territorial decentralisation where the civil service has a regional attachment of a more or less rigid character. Sometimes it is patrimonial, as where a definite service is handed over to the management of an autonomous group of officials. Sometimes, again, there is a kind of administrative syndicalism in which the technical experts of the particular service have a certain right
of direction.
Finally,
its
To add
operation
may be
entrusted
PUBLIC SERVICE
to a private citizen acting
53
under government control. Alongside this decentralization a movement, of a similar kind, which may be called the industrialisation of government activity has evolved. It acts, of course, only in those services which have an inherently industrial character, railways, arid the post-ofEce.
such as transportation,
Where,
in France, the
railways have been handed over to private companies, this involves also the concession of a special in-
and it is only by its maintenance that the companies can make their profits for this concession is in reality the same thing as governmental control. Where the state itself manages
dustrial organisation,
;
it
upon an
industrial basis.
necessary
which invariably
the
It
is
clearly
necessary
that
great
railway district
should provide continuous service and when it is under government control that can only be achieved by
administrative and financial autonomy.
It
is
we have begun
1,
to travel
is
the principle
clearly
i.
"The system
of lines
which
com-
purchased in the West) together with all those that shall be added by future legislation shall be managed by a single administration under the authority
54
civil personality."
It will
all
public serv-
an industrial nature. In Article 33 seq. of the same law the department dealing with gunpowder
and saltpetre has been industrialized to some extent. On June 26, 1910, the Chamber of Deputies heard with amazement the suggestion of M. Steeg, then a private member, "to give independence to the postal and telegraph service that it may be operated as a
definite industry."
^^
In whatever manner the business of the state is managed its fundamental idea is thus clear: govern-
As
an institution of a
its
subjects.
If all this
is
and jurisprudence of such countries The as are influenced by this movement ought to tend towards the organisation of a practical system which shall indirectly constrain government to transform
legislation
such activities
^^
as relate to
Cf. Alcindor,
Revue de Science
de Legislation Financiere,
July-Sept., 1910.
PUBLIC SERVICE
public
services.
55
The
private
citizen
demands a
guarantee that the service with which he is provided shall proceed accordingly to law. And it is exactly
this evolution that is
tion
and jurisprudence.
A whole
juristic edifice, of
is
being
That
surely
is
the best
any public need ought, as the legal conscience of a people believes, to be organised into a public service, and if government refuses to act towards that end, what legal appeal lies open to the private citizen? Undoubtedly, the idea still dominant in public law is that the real guarantee is to be found in the electoral and representative system existing to-day, in
If
world.
Upon
most
still
and the guarantees it can afOf course, this widespread belief is in itself a ford. precious weapon in the hands of private citizens.
The
on parliament; and
on the other hand
inactive
when
its
intervention
imperiously de-
56
LAW
it
IN
when
new
legal institu-
with the usual terminology, we may call the responsibility of the state. Here, indeed, is the great fact
of
modern public
The
its
abstention of
citi-
part to the
zens
in
its
harmed
thereby, even
legislative capacity.
not because a
not required.
operation,
it
possesses
no infallibility. It can be attacked simply because law is no longer the command of a sovereign will but
the totality of measures taken in a general
way
to se-
That
means
is
why
The
details of these
I shall
But
let
in operation.
Even when
is
it
where
its
operation causes
him damage,
shall see,
not deinto
prived of redress.
responsibility
is
The
here, as
we
thrown
its
most
striking relief.
PUBLIC SERVICE
Statute,
57
or
is
demands
it, if,
law of service
is
if,
is
violated,
Even when
still
there
is
no proof of direct
means
ices.
clear light
The importance of this is the throws upon the nature of public servThis action is important and entirely objective
of legal action.
it
in character.
Take such
demand
This ques-
Council of State by the representatives of the Department In one of the first of these cases M. Roof Justice.
tion has been several times discussed before the
mieu, then counsel for government, argued as fol"We must then enquire if users have any lows:^*
right to
tion."
demand
So put, the question hardly brings out the real bearing of the problem or, at least, it is so put The question as as to be susceptible of confusion. to whether there exists any right by reason of which the private citizen can demand the operation of a public service according to law involves the question of the bond existing between the state and the private citizen in virtue of which he can compel it to perform the duties enjoined by statute. This he
"Affaire Croix de Seguey-Tivoli, Decision of Dec. 21, 1906,
Sirey, p. 968,
58
LAW
IN
ment
representatives.
facts are the strongest feature of the situation.
The
Under
empire there is growing up a new rule of new procedure as a result of which action may be made compulsory. The basis of the formatheir a
law and
tion
is
as follows
its due operation according to Should the administration act contrary to it, law. every private citizen can by means of an action have This is legal redress of a purely that act annulled.
objective kind.
That
is
zen does not and cannot ask that the state should be compelled to ensure the regular operation of the service all he can ask is that the illegal administra;
tion be annulled.
bond exists between the state and the private citizen which obliges the state to fulfil his delegal
No
is
to say, a
and if the law its illegal act can be annulled. This is true whatever the service and however it is operated. There is no distinction between services directly connected with public authority and services in which the humble civil servants merely fulfil the command of their superiors. There is no distinction between a public service directly managed, decentralized or operated by delegation. The Council of State has hesitated and its formulas are not always
lation, controls the operation of the service
PUBLIC SERVICE
59
above criticism. But the facts have triumphed and the legal principle I have just described may be considered to-day as finally established.
of the Council of State
We cannot here analyse in detail the jurisprudence upon this point. We can
it
is,
above
all
which
law.
is
coming
upon
realistic study, certainly, must be based otherwise the solution proposed is merely formal and biased by its artificial preconceptions.
it;
Any
The
statement of
its
may
serve to
make
this clear.
The first three related to somewhat peculiar cirpublic transportation system was opcumstances. delegation to a company.^' The question erated by
may
sue on the
ground of
the
law involved.
If
he can
lega,l
means of preventing
the act of violation
is
when
Not without
hes-
Council of
On
February
of the
4, 1906,
Rue Quatre-Septembre
the
which,
services,
of the prefects as
June 11, 1880, Articles 21 and 39, the French however managed, are under the strict control government representatives.
6o
LAW
IN
contrary to the law, authorized the East Paris Railway Company to erect an overhead railway over the
surface of the Opera-Place de la Republique.
The
In the next year the Council went a step further. In the earlier cases the
ity.
plaintiffs
had attacked
a spon-
and conformably
to his duties,
tramway company from giving up a car service which, it was claimed, would have been suppressed
a
The Council
In 1907
it
officer,
long
dis-
War.
refused to compel the Western Railto give the officer a ticket at the re-
article
He
claimed that
this
conclusions of
M.
bye-laws demands. and the remarkable Teissier urged that any person
54 of
its
;
was
illegal
whose
thereby adversely affected may attack an administrative act which is contrary to the charter of a railway company. That charter, the
interests are
decision holds,
is
part of
its
organic law.^"
Recueil, p. 116. Recueil, p.
4, 1805.
961;
Sirey,
1907,
33.
^"Conseil
d'Etat,
Nov.
15,
1907.
Recueil,
1907,
p.
820.
Revue de Drgit
PUBLIC SERVICE
VII
6ll
But the same rule holds also directly exploited by the state, or its diverse administrative organs. If the state had remained a power which issued sovereign commands, it would be impossible to understand how a private citizen could demand from a sovereign power the inprivate direction.
But
if
of the
whose
itself, if every one concerned has means of legal redress against every illegal act on the part of the state, it is clear that public law is now based on a rule of conduct which compels government to fulfil the obligations implied in public service.^^ This objective admission of legal recourse against
is
illegal
grew
up under
elementary education. It may be true that educational neutrality is a chimera impossible of realizaIt is not, however, doubtful that the idea of tion. neutrality is in virtue of the great laws of March 28,
1882,
^^
and Oct.
on
state as identical
to note that M. Duguit throughout uses with government, on the ground that its power is, for practical purposes, exerted by the latter. On the justification of this cf. Laski, Authority in the Modern State, chap, i.]
62
LAW
IN
can a private citizen compel the authorities to give an education strictly in conformity with
It
is is
of course obvious
make the former This was definitely established by the Tribunal of Conflicts (June 7, 1908) in the Morizot case. But the circumstances are rarely so clear.
teacher, the father of the child can
responsible.
The
to
usual situation
is
civil servant.
When,
violated
books with
if
definite
at
tendency
infidelity or
least of
an
anti-Catholic nature,
neutrality
the fact
is
true, the
law of
obviously violated without there is being any personal fault, in the legal sense, committed.
What
is
Can he
is
obtain
annulment of
that head.
There
no doubt on
The
The
question
came up
as a result of the
demand
of
some parents that certain academic decisions should be annulled. It was claimed that pupils had been expelled because they refused to use the text book
that
in the school.
The
plaintiffs
PUBLIC SERVICE
claimed that the expulsion was wrongly
63
inflicted be-
cause the children had refused to use the text books by their parents' orders, since the text books hurting
six cases the
Catholic feelings violated educational neutrality. In Council of State rejected the plea on the
and methods in the schools, and that the children who go there must submit to their regulations. The refusal of a pupil so to conform constitutes the disciplinary fault which comes under the purview of the punishments drawn up to regulate a management of the school. At the same time, however, the Council of State pointed out to parents the way in which their end could be obtained. The text itself of the decision must be reproduced because of its perfect clar"If parents think ity and characteristic conclusion.
the school text books are
drawn up
in violation of
by the law of March, 1882, as a result of the lay system then inaugurated, they must bring their claim before the competent authorities. Notably they have the right to demand from the Minister of Public Instruction the rejection from the public schools, conformably with Article 4 of the Act of Feb. 27, 1880, of such books as may be found blameworthy and only then can they go to the Council of State on the
ground of excess of power." So did the Supreme Court
erect for the benefit
!64
LAW
IN
all
possible violations of
law of
neutrality.^^
In the case where the details are rather interesting In the Council has provided an analogous solution. appearance the case was no more than a mere village quarrel; in fact, it raised the gravest of problems. The case arose in connection with the postal and telegraph service. As a result of quarrels between the postmistress and a householder in the commune who, so the postmistress said, possessed a savage and dangerous dog, the Under Secretary of State for post and telegraphs decided that telegrams should no longer be delivered to his house until he agreed to put a box and a bell at the bottom of his garden. Plaintiff claimed that the secretary had gone beyond his powers.
was contrary to the law regulating the telegraph service and especially conasserted that the act
He
according
to
To
deprive a private
zen of these advantages, some fault must be shown on the part of the recipient, and the administration must prove the fact of the fault. Since all these elements were absent in the decision, the Council of State annulled the action of the Under Secretary and so assured to the citizen the full and regular advantages of the service.^^
^^
April
See the six decisions, Jan. 20, 1911, Recueil, pp. 75-7, and 8, 1911, Ibid., pp. 481-2. Cf. Revue de Droit Public, 1911,
Revue de Droit
Public, 1912, p.
38.
PUBLIC SERVICE
65
This legal protection of the private citizen has sometimes been indefinitely organized by statute. The law of July 15, 1883, gives free medical assistthe infirm
ance; that of July 14, 1905, assures support to the old, and the incurable. It is usually said that
the
not
The
real fact
is
firm
who
the an-
nulment by the competent authority of an adminiswhich, when their age, infirmity and poverty have been legally established, refuses to them an allowance or a lodging. Statute thus establishes for a definite public service the same system of legal protection as the courts have established for the administrative services in general. I have discussed this jurisprudence in some detail because of its novel spontaneity. It is at once the consequence and the transformation I have been trying to deproof of the Because the subjective right of the state and scribe. the individual are disappearing, we get the formation of an objective governmental duty in regard to
trative decision,
is
legally
guaranteed.
glad to think that, by different methods and in different terms, so eminent a publicist as M. HauI
am
riou has arrived at exactly the same conclusion, when he says :" "the public services are considered in re2*Principes de Droit Public (1910),
p.
94.
66
LAW
. . .
IN
established situations.
;
The
public
is
it can do from them. Private citizens have at their disposal a practical means of improving their situation. They can formulate a claim and ask the Council of State to decree that the authority has gone beyond its powers; but this practical means does not is
is
objective in char-
The
administration
practically prohibited
its
own
silence.
from preFor a
long time the government could prevent a citizen from suing it; if it did not answer his request; if there
was no administrative act, the Council of State could do nothing. As early as the decree of Nov. 2, 1864, some means of remedy against this danger was achieved. It was decided that if a minister, when the hierarchy of the administration was concerned, does not answer within four months his silence may be interpreted as a refusal and attacked before the
Council of State. This method has been generalised by the Act of
July
It was there decided 14, 1900 (Article 3). "that in such affairs a case only can be brought be-
means of an action
When
a delay
PUBLIC SERVICE
cision being given the interested parties
67
may
consider
of
So
ill-will
One
remains to be
filled.
pletely protected
responsible in
case.
is comwhere the administration is made the large degree which is to-day the
The Council
which
But how
is
the adminis-
tration to be compelled to execute a decision which condemns it? How make an official respect a decision which annuls his act? How can he be prevented from breaking the law a second time? As a rule, of
The
command
its
decisions.
But
none the less true that to-day there do not exist any means by which the administration can be forced It is essential that in to conform to those decisions. the future these means should be organised and alit is
ready their beginnings can be perceived. It is a purely general question to which we shall come later when the evolution of the boundary line between legal and illegal administrative acts have been considered."
^^
Cf. chap,
vi,
below.
CHAPTER
III
STATUTE
In any system
statute
is
of public
its
clearest
By
it
definition
command,
tional
we need no longer ask who makes the laws. They are clearly acts of the general will. The prince is not above the laws because he is a member
of the state, nor can statutes be unjust because no one
one can be free and yet ruled by statutes, since they are only the edict of our will." Thus was born what has been called the fanatic worship of statute.
is
we
ask
how
It
is
is
It
at-
individual
*
can
possess
against
arbitrary
conduct.
68
STATUTE
The
essential
69
is
protection of liberty
a principle
cerfor-
mulated in advance. In this aspect the new system of public law only gives precision and guarantee to
the elements of the earlier system.
ter system, as in Rousseau, statute
of the sovereign.
As such
it
to reserve or restriction. No tribunal could take cognisance of the constitutionality of statute. It could not ever be suggested that the state in
was subject to responsibility. Such a conception was in clear logical accord with But it is obvious that, if the the imperialist system.
its
legative capacity
theory of sovereignty
in the legal life of the
is
obsolete.
If, then,
modern
state
we
take account
of facts and of situations, such as the acceptance of a jurisdiction which completely contradicts the theory of statute as an expression of sovereign will,
we can
law.
I
A
^
statute
is
[Cf, however, F. Geny, Science et Technique en Droit Prive, Vol. II, ch. V, where it is pointed out that one of the defects of M. Duguit's worii is the absence of an explicit avowal of its implied
metaphysic]
70
LAW
IN
heritance from
statute formulated command of sovereign power. expression of the individual will of the is simply the men who make it, whether they be the leading states-
men
or the private
that
members
is
of a legislative body.
Beyond
we
are in the
realm of
fiction.
In
who
usually
in the
Chamber and
in the Senate.
who
This
a statute
tory,
realistic
Of course
even imperative, force. statute, it may be, is no longer the order of a superior imposed upon an
inferior will.
But it still remains true that civil and private citizens must obey statutes. The power of compulsion at the disposal of the government may necessarily and can legitimately be
servants
It
is
have pointed out, that there is an objective law superior to government. As soon as a human society exists, the indispensable condition of its maintenance
is
a social discipline.
While we
reject
meta-
physical
theory,
it is
STATUTE
environment necessarily gives rise to a rule of conduct. But the idea of this social rule is
sense metaphysical.
in
71
social
no
is to use philosophical terms immanent an element of society, or rather it is society itself. obey this rule, not because it creates a superior duty, but simply because we are, for good or ill, members of society, and therefore necessarily
So
to
argue
It
is
in
it.
We
subject to
its
social discipline.
It
is,
for example,
murIt is
fore
it
was forrhulated
Once
statute
that
is
understood,
it
becomes clear
It
is is
why
compels us
to obedience.
not, techni-
cally speaking, a
command.
It
cause
it
the
statutes I
have elsewhere called normative.^ The clearest examples of them are penal statutes, or at least those which define and prohibit certain offences. Penal laws which actually fix a penalty belong to the character of constructive statutes which I shall have later to discuss. In the domain of civil law there exist certain rules which are also normative statutes, such as those implied in the principles of Art. 1382 of the
^L'Eiat, Vol.
I, p.
551f.
72
civil
LAW
:
IN
code "Whatever act of one person causes damage to another creates by the fault concerned a duty The to repair the damage that has been caused." principles inserted in the different Declarations of Rights are often rules considered superior and anterior to the legislator.
because they contain a rule of law every ruler recognised at a given place and time. This idea has been
remarkably worked out by Prof. Dicey in his fine book on Law and Public Opinion.* "There exists at any given time a body of beliefs, convictions, sentiments, accepted principles, or firmly rooted preju-
which, taken together, make up the public opinion of a particular era, or what we may call the reigning or predominant current of opinion, and, as
dices,
and especially the nineteenth century, the influence dominant current of opinion has, in England,
we
It
in every age.
may be added
making
of
that if opinion
is
the
law
it
only
when men
imposed by
a social sanction.
when
formed
it
There
*Law
STATUTE
comes
rules
a
73
moment when
so
is
by men that
every statute which enacts them is universally admitted and possesses for all an obvious character that is
obligatory/
be added that such normative law must not be confused with custom. Statute and custom Statute is the expression of are two different things.
It should
a rule
finds
to
which
ual consciences.
its first
comIt is doubtless true that the complete expression. pelling power of statute and custom is derived from the same source, but they represent different degrees Often the degree of the expression of objective law. that custom expresses is socially defective and the objective law is first and directly expressed in statute. It has been said that the reality of a rule of conduct founded on social independence does not disguise the fact that the rule itself is ethical and not legal in In itself it is not imperative because it character. only becomes imperative when definitely enacted as
statute gives later a
which
more
precise and
statute.
The
proof of
this,
we
are told,
is
that before
such conduct became statutory there was no prohibiAnd acts which conform tion of acts contrary to it. Positive statute would then to it had no legal result.
^
Cf. Deslandres,
Etude sur
p.
le
fondement de
la loi,
Revue de
33,
74
LAW
IN
be more than the simple statement of a social rule. It would be a social rule to which a legal character
when
there
is
no written
But
law understood not as a command but as a way of life derived from the necessities of social existence. Nor must we confuse the compelling force of this rule with the sanction which society organises to ensure its acceptance. The way in which
that rule of
society organises the sanction
is
may
be
II
modern
is
legislation.
there
would
disposition of
isation
remain the fact that every general government which aimed at the organof a public service would be imposed on all
still
constraint.
Indeed, in the issuance of such dispositions government only fulfils the social function incumbent upon
it
from the
it is
situation
it
occupies.
I
if
that
not necessary to
know
a rule of
STATUTE
law
earlier in origin
75
in force to governif
and superior
for
if
ment.
normative laws
For myself,
it
seems
and
A
to
conception,
Greek
time,
impor-
tance in our
own
here important.
We
have
know why
in the organisation
and operation of
down
general
The answer
that this
is
individual possesses against arbitrary action. So may be defined both in its complexity and unity
the compelling
power
of statute.
It
is
complex be-
cause
serve.
it is
herent
in statute,
based not only on the general character inbut also upon the purpose it is to
because
it is
It is unified
essentially
founded
to assure the
operation of
which does not organically control some social need and derive its power therefrom; and there are many which can only be explained by this means. This is true of all statutes
In truth, there
is
no
statute
76
LAW
IN
we admit the personality of the state, and define law as the command of its sovereign will, it is absolutely impossible to understand how organic laws can
be really laws since the state cannot address a com-
mand
if it is
to itself.
On
compulsion inherent
to organise
in such regulations
very clear
utes
means of satisfying social needs. Statwhich serve this purpose are obligatory in charConsti-
and those which regulate general administration, are fundamental because their object
give the state the best means of serving social
said of penal laws.
is to
needs.
They
are
The more
closely
we
more
it
ap-
because
forth.
it
cannot
tell
us
simply organises a public means and setan act which it foresees and defines and describes as an infraction of law is committed, the courts will pronounce a penalty against the author of
It
tles that if
[But
in the
German
name
virtually possible.]
STATUTE
it.
77
says,' is
The
not
addressed to private citizens. The basis of the right to punish cannot be discovered by knowing on what foundation there rests the right of society to say what
is
is
prohibited.
Government
in-
must
ternal
tion
of
the
nation.
penal
legisla-
is
the
means adopted
its
therefrom
sion.
as
much
as police
and
all
It
may
be asked
how
it
civil legislation,
Napoleon, decides,
ment may abrogate civil legislation. This has led to the argument that civil legislation concerns the officers of justice whose business it is to legislate on quarbetween private citizens. The parties to an action may make agreements contrary to all civil laws without affecting public order or morals but the law He settles the judge's duty in very definite fashion. must judge private relations by the agreements into which the parties have entered. If there are no agreements, or if they are obscure, he must then settle the problem in accordance with the common law. Clearly then the common law supplies a public need Statutes which deal with public that of justice.
rels
;
I, p.
66 (2nd
edition).
78
LAW
IN
and so forth, This in itself settles the role and duty of the judge, who must declare all such agreement null and void. They are
ganisation, or the capacity of parties,
Even
is
not
an order.
force
is
derived from
its
relation to a
means of
admit freely
and that its relation to the facts must be still determined. They are completely antithetic to the imperialist conception. In that system of law four conclusions followed which were accepted as sacred law was a decision derived only from dogma ( i ) the people or from its representatives; (2) law being derived from the sovereign will of the state is subject to no form of action and gave rise to no re:
sponsibility; (3)
sovereignty
fore,
one and
As
a
or
was always a (4) unilateral act. Statutes and agreements were mutually exclusive ideas. A statutory agreement was a
groups.
a statute
command,
contradiction in terms.
To-day none of this is true. There are statutes which are not derived from the people or its representatives. Statutes may give rise to action and involve state responsibility. Districts and groups pass
STATUTE
their
force.
statutes.
79
In the
first
place
it is
clear that
if
a statute
is
the
command
can be made only by the instrument in possession of that power. For a long time, indeed, the principle was considered absoof the sovereign
power
it
emanate only from a body like parliament of which the national composition gives
it
This
bottom the celebrated principle of the sepIn Art. 3 of the preamble of the aration of powers. third chapter of the Constitution of 1791, it was said
at
power is delegated to a national composed of temporary representatives In title 3 it states that freely elected by the people."
assembly
"the Constitution delegates exclusively to the legislative body the powers and functions hereinafter mentioned; to propose and decree laws; the king
^
may
thus
law
is
of legislative initiation.
Nor
is
this all.
Constitution of 1791
of a provisory kind
it
Art.
1,
ch.
iii,
1.
8o
LAW
IN
can only issue proclamations in accordance with statute either to order or to repeal their execution."
However
is is
it
very clear.
king of what
power
of ordinance.
The word
proclamation
royal act
is
characteristic.
itself valid, is
not in
ordering or repealing the operation of a The same principle was clearly formulated
:
"A
statute
is
the
The
or applied, statutes.
there are
from
this
Directory a large number of acts, certainly other than proclamations, which are general rules inherently calling for execution, like statutes,
by the courts
and the
civil service.
Under the Consulate and the First Empire the number of general regulations issued by the government grew to great proportions. The Constitution of the year VIII no longer speaks of proclamations but of ordinances. "The government proposes laws
and makes the ordinances requisite to their execution." The change of terms is characteristic; they are no longer dealing with acts which enforce a law, but with an act containing a rule imposed by its own force. From the year VIII, whatever may be the
^
STATUTE
8i
form of government empire, kingdom, republic the number of ordinances issued by government constantly grows.
Of
course
if
we
1 8 14 which (Art. 14) gives the king the right to issue the ordinances necessary to the operation of stat-
utes
state, all
other constitutional
the general
restrictions
it
These
The
as
than constitutions; the ordaining power constantly grows and we have made ordinances which cannot be merely related to the execution of the laws. So, alongside legislation properly so called, we have a legislation which is really executive in character and yet which has for private citizens, administrators, and the courts, the same compulsion as formal statutes.
cannot here discuss the endless controversy which has arisen over the ordaining power of the
We
in relation to a sup-
him
The
undeniable fact
is
many independent
ordi-
nances which are in no wise attached to a formal Of statute and are yet generally accepted as valid.
this latter kind, for
March
82
LAW
IN
By
To
violate
them
is
the
same thing as to violate statutes. This does not mean to say that the president can There are cerissue ordinances on every subject.
tainly matters, called legislative, w^hich are within
That, howand does not touch the fundamental point that there is no difiference between statutes and ordinance. And, even if there did at one time exist such a difthe competence of parliament alone.
ever,
is
a question of capacity
ference,
it is
is
did exist
it
can
M. Hauriou
has given.
on the
Ordinances
is
to
shown above
statutes.
I have supremely the purpose of The fundamental point is that in the evolu-
that this
is
tion
we
utory character which do not come from the general organ of sovereign power. As a consequence statute
[On the president's power of ordinance cf. Berthelemy, Le Pouvoir Reglementaire du President, in Revue Politique et Parle^^
p. 50.
STATUTE
tion."
It
83
may be
and ordinance consists in this, that an ordinance may be attacked for illegality while the statute is not subject to legal defect. While this is true, it is tending
disappear and in some countries is non-existent. Nor does it touch the intrinsic nature of the acts. To attack legality does not depend on the intrinsic nature of the act considered but on the character of the into
whom
it
emanates.
is
If
only be-
cause French law has not yet admitted that the acts of
the legislative
to the courts.
the nation.
But, as
we
less
shall see,
it is
exactly at this
is
point that
tant
we
are arriving.
The
time
when
statute
no
lY
statute
In the imperialist theory the irresponsibility of was natural. As the order formulated by the sovereign will it could be presumed to express a rule
of law.
because
is
its
business
to
statute
the
L.
I'Moreau, Le Reglement Administratif j Duguit, Traite. 137, 201 seq. ii, 451.
84
LAW
is
IN
principal source.
more
;
ereignty
is its
direct manifestation
measure its validity. In England this point of view is still good law. Everyone knows the famous saying that the English parliament can do everything except make a man a
to
woman.
ment means, in the mouth of a lawyer (though the word has often a different sense in ordinary conversation) the king, the House of Lords, and the House
of
Commons
may
"The
principle
of
Parliamentary
sovereignty
means neither more nor less than this, namely that Parliament thus defined has, under the English Constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of parliament."
^*
In
the
this respect
moment
at least, to
England does not seem likely, for change its system of juris-
prudence.
not
is
The
i*Law
STATUTE
85
of a distinction between ordinary laws and constitutional laws. To avoid confusion, Professor Dicey
calls
such constitutions as make the distinction rigid. I cannot here explain the circumstances of its origin and development, particularly the mutual relation of
French and American ideas," By the end of the eighteenth century the distinction had become both in France and America an essential principle of public law. We must not exaggerate its importance. It in no wise implies the recognition of a constitutional law-making body and an ordinary statute-making body each equally sovereign in its own domain. Still less does it imply the recognition of a constitution making body superior in power
to the
ordinary legislature.
law founded on sovereignty that sovereignty is unified and does not admit degrees. Every statute, whether constitutional or not, is a command of the But the order is exstate in its sovereign capacity. different forms where the law is constitupressed in This is important because it tional in character. means that the nature of constitutional law forbids its change by ordinary law; and modification can come only by another constitutional law or some special method. This defines clearly the question that must be put When the ordinary lawin France and America.
^^
(1893)
Gajac,
De
Constitutionnelles (1911)
Duguit, Traite,
II, 513f.
86
LAW
can
IN
it
making body
stitution,
passes a statute
be annulled by the courts? Is there a court competent to pronounce this annullment? At It is of course true that present no such court exists.
in Art. 21 of the Constitution of the year
VIII and
the Art. 29 of that of 1852, the senate, being a conservative body, was given the right to maintain or an-
nul
all acts,
were submitted
But neither Second used the power so conferred they were no more than an instrument which permitted the Emperor to alter
the senate of the First
Empire nor
;
that of the
Another question which differed from, but which was connected with, the first, may be asked. Where
a
man
is
charged before a
civil or
is
the plea of
unconstitu-
May
pronounce the statute void, but refuse to apply it on the ground of its unconstitutionality. The United States has answered this question in the affirmative. It is to-day well settled that any court can accept the plea of unconstitutionality and refuse to apply an unconstitutional law. At the same time not even the Supreme Court can annul a statute. Let us consider the development of the solution in America. It surely derives from the memory of the Colonial period when the courts could, and logically had to, refuse to uphold statutes which went outside the limits of legislative power conferred on the col-
STATUTE
onies
87
necessity of setis
by the mother-country.
The
an obvi-
voked
is in fact unrelated to the question, it has been used as a basis for this jurisprudence. And the path
that the
lowed.
Supreme Court has trodden others have folBut I cannot dwell longer on this matter."
dififerent.
The
It has
long been an accepted dogma that no court could accept a plea of unconstitutionality and refuse to apply a formal statute even where they considered it unconstitutional. That an ordinance might give rise to a plea of illegality was undoubted even where the
president had acted by express delegation of parlia-
ment.
The
found in
the Penal Code (Art. 471, No. 15), which as a fact deals only with ordinances to which a penal sanction attaches. But it now applies to ordinances of every
kind.
There we have stopped. For a long time legal theory and legal decisions have unanimously agreed that no court can pass upon the constitutionality of a The statute or refuse to apply it on that ground.
thought underlying
statute, in its
enough.
view,
is
ereignty
competent to pass
the Constitution, for a
"
[See Beard,
Cf. Nerincx, L'Organisation Ju-. full discussion cf. this question.] diciaire aux Etats-Unis (1909), p. 36 seq.; Laraude, Bulletin de la Societe de Legislation Comparee (1902), p. 179 seq.; Boudin,
Pol. Sci. Quarterly (1911), p. 338.
88
LAW
IN
judgment.
It is the logical
however different from this. It is generally deduced from the principle of the separation of powers. The judiciary must not encroach upon the legislature or the executive. Texts are cited insisting on this separation." These texts in reality have no connection with the question. The principle of the separation of powers leads to an entirely different solution. A court which refuses to apply a statute on the ground of unconstitutionality
usual explanation
is
The
powers.
It does not
suspend
its
application.
The
It
is
distinct
two
it cannot be forced to apply the statutes deems unconstitutional. This has been understood in America, and the principle of the separation of powers has logically given American courts the right
others that
it
of judicial review.
For, after all, to take away that power is to make the courts inferior to the legislature and, by that dependence, to violate the principle of separation. So that the real reason why French courts do not exercise the power of judicial review is
chap, v.,
tit.
iii;
Law
of Aug.
STATUTE
reservation.
->,
If, as I suggest,
89
^
is
in
process of disintegration,
we ought
judicial review.
It
is
course the judges themselves have always refused France to discuss the constitutionality of statutes, and to-day they would not decide differently. The
in
Of
precedent of 1833,
ist
when such
still
a plea
was
rejected
by
holds good.
A journal-
had appealed against the law of Oct. 8, 1830, on the ground of its unconstitutionality. This plea was held bad on the ground that "since the statute was discussed and promulgated in the form prescribed by
the Charter the courts cannot entertain an attack on
its
legality."
"
On the other hand, French judicial theory and the jurisprudence both of the Council of State and certain foreign systems of French inspiration tend more
and more clearly to accept the necessity of judicial review. In 1894 in an article in the Monde d Economique, Professor Beauregard, now a member of the Chamber, urged that the courts were in duty bound to hold of no effect a statute establishing the principle of Cadenas on the ground that it violated the constitutional principle that taxation could derive only;
^^Sirey (1833),
I.
351.
90
LAW
IN
of Parliament. In 1895 M. Jeze did not hesitate to urge " that if a statute violates the
it,
because in the
presence of contradictory authorities they must enforce the superiority of the constitution.
That
atti-
tude
is
among compe-
tent authorities.^"
This
riou.^^
been defended by
M. Hau-
In
its
decision of
Aug.
7,
which dismissed
number
decree obviously violated Art. 65 of the Financial Act of April 22, 1905. By its terms no
civil servant
The
of his dismissal
ing dismissal
being
communicated
approachto him.
M. Hauriou
who
sup-
by the Council of State itself. That solution can be explained only on the theory that if Art. 65 of the Financial Act of 1905 was applicable even to a case
when
that
19
^
servants,
it
would be
411.
and Thaller, Bulletin de la Societe de Legislation Comparee (1902), p. 240 seq. [Cf., however, Mr. Asquith's repudiation of the idea of judicial revievir during the debates
on the third
p.
Home
Rule
Bill,
Hansard, Fifth
Series,
Vol. 42,
2229.]
^^Sirey (1909), III, 14.
STATUTE
of state existence.
91
of ad-
ministrative business
state.
When the Council of State therefore supported the decree of dismissal it simply refused to apply an unconstitutional statute. M. Hauriou is
patently right and his theory involves the conception
;
This
won
the adherence of
Professor Berthelemy.^^ At the present day it is extending itself all over Europe. In Germany Professor
judicial review.
much discussion the German jurists are in favor of In Norway the power has been
us that after
of
deduced from the recognised character of the judicial function without the need of a formal text. It was recognised in 1890 by the Supreme Court of Norway and in 1893 ^Y t^^ District Court In 1904 the first Chamber of the of Christiania. Areopagus asserted this doctrine in the clearest terms.^* A recent decision of the Court of Ilfor confirmed by the Rumanian Court of Cassation has adopted this attitude in very remarkable terms. They owe their clarity to a most remarkable opinion given by MM. Berthelemy and Jeze ^^ in a case between the The city of Bucharest and its tramway company.
logically
^^Sirey (1912), IV, 12.
2^ =* ==
Droit Public,
II,
322.
p.
481.
Sirey,
IV, 9 (1912).
92
LAW
law
IN
company asked
of the
on the ground that since and 30 of the Rumanian constituit violated Arts. 14 tion by attacking the right of property, it was unconThe court accepted the plea in a very stitutional. month later the judgment was striking judgment. confirmed by the Supreme Court in the following
of Dec. i8, 1911,
is
made
that a statute
is
un-
where two ordinary statutes conflict it is and duty to decide which of them must be applied and it is as much his duty even where one of Within these limthese two laws is the constitution. its, the right of judicial review is incontestable. The power flows primarily and naturally and logically from the nature and character of the judicial function of which it is the business to enforce the law; and the law of the constitution equally. There exists no
Exactly
as
his right
judi-
power."
^^
from
juris-
prudence does not yet admit that a court can annul a statute for violating a superior rule of law, it very clearly tends to admit the plea of unconstitutionality French jurisprudence will to any interested party. certainly be led by sheer force of facts to this concluProbably the evolution will be inaugurated by sion. I have already suggested the the Council of State.
2
p.
365
seq.
STATUTE
avenue of approach in discussing
93
M.
Hauriou's very
plausible interpretation of the decision which upheld the decree of 1909. For a long time past the Council
gard
even though
it
considers
gation.
them
Since 1907 the Council of State had admitted the plea of excess of power against these same
regulations even while
it
delegation." if there is delegation, logically administrative ordinance is in reality the work of parliament; for unless delegation means nothing, it
Now
institution to an-
its own power. path from the consideration of administrative ordinance to formal statute is easy and short. It is
The
become
established fact.
It is in this connection
been presented with certain measures directed to this end. On Jan. 28, 1903, MM. Jules Roche, Charles Benoist, and Audiffred proposed a bill which added the following article to the constitutional law of Feb. 25, 1875: "A Supreme Court should be established charged with passing upon the claims of
citizens for the violation of their constitutional rights
On
the
same
day
M.
"Recueil (1907),
913; (1908),
p.
1094; (1911),
94
LAW
IN
Journal
Chambre (1903),
CHAPTER ly
SPECIAL STATUTES
Other
from
facts tend to
make
command.
And
is
to be discerned
modern
times.
The
the-
indeed, its emanation from a on definite territory, and organised into a government, was rigorously logical enough. It swept all wills save its own from the field of control. The texts bear witness to the im-
ory of a sovereign
state,
nationality, situated
mense influence
it
exerted.^
The consequence
of this theory
is
clear.
If
law
is
it is
form of
statute.
But we
modern
citizens accept
title
iii,
art. 1
Constit. of 1848,
art. I.
96
LAW
IN
Obviously the sovereign cannot admit a federalist Every one knows with what fierce inorganisation. Convention attacked every governmendignation the
attempt into which federalism might rightly or wrongly be read. By federalism the convention untal
derstood what
is to say,
we
that
is
any system
governing.
of unified
which a territorial area is selfwas contrary to the principle sovereignty had been clearly announced by
That
this
those
who wrote
It
true
a
had established
rowed. But the constitution laid it down that "the Administration is not a representative agency. Its
members
are elected
from time
to
under the supervision of the authority of the Crown." ^ Thus although the local organs were elected, the representatives of the local group and its will, so far as it had a will, had no representatives who could pass a local law. Country, nation, sovereignty, law all these were one and indivisible. To-day all this is changed. Every impartial observer must be impressed with the variety of law and especially with its localisation. It is very striking in
to exercise administrative functions
Constit. of 1791,
tit.
iii,
chap,
iv, sec.
ii,
art.
2 and
3.
SPECIAL STATUTES
federal countries
ffj
when on the same territory federal law are both applied.^ If we do not insist on this evidence it is not because the growing conception of federal government is not important, but because the antinomy between imperialist theory and federalist fact is so clear as not to need discuslaw and
state sion.
Moreover,
tion of
it is
France that this localisais apparent. Law, above all, is a rule which derives from the central government and is apstates like
even in unitary
law
by
its
side,
local
laws begin to
make
their
appearance.
In France, since 1871, the question of decentralization has been frequently discussed.* The law of Aug. 10, 1871, on general councils was a step in this direction. The authors of the law of April 5, 1884, tried, with little justification, to create a decentralParliament has for several years disised system. cussed different proposals which have aimed at substituting a district for a department in order to create a real autonomy and to enlarge communal powers. Several men of ability have hoped that a system of
' [On the other hand, the observer should note the growing tendency towards federal control. Cj. Franklin Pierce, Federal Usurpation, 1908, and Laski, Problem of Sovereignty, Appendix B.] * [The literature is enormous. Cf. especially P. Deschanel, La Decentralisation, 1895; M. Hauriou, La Decentralisation, 1893, and Charles Maurras et J. Paul-Boncour, Un Nouveau Debat sur la Decentralisation, 1908.]
9B
LAW
IN
electoral reform,
liste
and minority representation, would be the prelude of a great administrative reform in a decentralizing direction. But since neither of these has happened we must discuss only what has actually occurred.
To-day, both in fact and in law, the comriunes, or have undoubtedly a power of legislation distinct from that of the central government. The limitation derives from the fact that even
at least the great towns,
is the same both for communes, the force of circumstance has made the autonomy of the great towns alone a
if,
in law, a
municipal system
reality.
It
is
away.
to
render
its
complete
However
that
may
and no-
mayors can make, under the name of ordinances, true communal statutes. These ordinances constitute in a real sense an objective communal law applicable to every one in the area to which they apply. If they do not modify, they may at least augment, the duties derived from the national system of police. They
are real statutes in the sense that they are general regulations to
sanction.
which obedience
is
secured by a penal
To
act in conformity
with them
may
pro-
SPECIAL STATUTES
duce
a situation entailing legal rights
;
99
to violate
them
By
statute,
courts,
by custom, and by the attitude of the these communal statutes have come to be re-
garded as made in the name of the local group. In every French commune to-day the mayor is elected by the municipal council which is in turn elected by
universal suffrage within the
commune.
But is no
The law
in fact
custom has given it town in France where its wide exercise is not apparent and some recent legislation, such as the statute of Feb. 15, 1902, associates the Municipal Council with It is everythe drawing up of police regulations. where recognised to-day that the prefect, though
;
There
he
is
the mayoral regulations, but only annul them for illegality, and cannot take the mayor's place when the
latter has taken all necessary police measures.
If
powers on this question, the prefect goes beyond the mayor can go to the courts and have the prefechis torial
decision
is
annulled.
Clearly,
therefore,
the
mayor
for his
commune
of the prefect but a real legislator who acts as a representative of his locality in its decentralised form.
Several decisions of the Council of State have thrown this into striking relief. Most notable is the
decision of June
the
mayor
1902, which accepted the plea of against the decision of the prefect of Neris
7,
lOO
LAW
IN
The
of Allier/
gard
in contradiction to
had issued regulations in reholiday resort which were those issued by the mayor for the
territory
In 1910 the Council of State decided in the mayor's favor, and it has accepted the plea of a mayor against a prefectoral decision, annulling a decision in which a mayor has rehis control.
under
That municipal regulations are clearly communal statutes is clear also from the point of view of liability. The Council of State tends more and more to recognise communal liability for municipal regulations.
The
cases
on
them-
dent implication
really a
is
communal
statute because
the
commune
This
a
re-
which bears
sponsibility
mayor
bells and,
notably, ordered
The
be used for civil funerals. Council of State annulled the decision and recto
them
iii,
commune
to
p. 81. p.
957.
SPECIAL STATUTES
11
^ f HOI
I
\ J93S
Not only
statutes
a similar limitation.
isation
is
our time. I have already pointed out the increasing development, especially in France, of an administrative decentralisation which associates the civil servants with the control of the service concerned. This system is concerned only with technical services and not with such as those of war and justice which must always remain under the control of the central government. The elements of such a system consist, outside the participation of its agents and the direction of the service, in its corporate organisation and its patrimoThat is to say, it is given an independent nialisation. budget of which the management under government
supervision
is
confided to the
is
officials
themselves.
all,
found, above
;
in
that
is
to say,
power of government to compel certain expenditure deemed by it necessary to the proper functioning of the service in such cases as its managers should disagree with the Budget. The necessary counterpart of decentralisation
is
102
LAW
IN
We have taken
ganisation.
only the
first steps
towards
it is
this or-
But
will proceed
more
becoming
if
is
the vital condition of the extension of state powers the excessive absorption of individual initiative
to
be avoided.
These de-
own budget
and their own administration. Their officials form managing council which, while it is to-day of a nar-
row
The
ideal type
is
lo,
They have each an autonomous budget; under supervision, they are managed by a council encomposed
its
is
tirely
who
president
colleagues
from
university
concerned.
The
and are subject to the discipline of a which is nothing so much as the council of an independent corporation; while appeal
tected status
university council
lies in
made up
for the most part of elected members. Parallel with the tendency towards administrative
autonomy
in each service, there is a tendency also to give the civil servants a special status. This status
SPECIAL STATUTES
connects two intimately related ends.
103
On
the one
hand
it
aims
from arbitrary
attack, at securing
him
vancement, and the means of defence against political influences. On the other hand it aims at securing the civil servant's affection for his employment with a view to its improvement. It is this second aim that is the most important. Law tends to protect the civil
servant not in his interest but in that of the service
or rather
service.
only protects him in the interest of the This status will vary with the different deit
partments.
the
It
is
Chamber of Deputies
and that
at the
end of 191
M. Maginot
presented a remark-
But the Chamber has and it is doubtful if it not yet discussed the project ever will do so. The variety of the departments is already so great that it is impossible to secure any general status by law.* The solution of the problem is a separate departmental status established by agreement between the Minister and the permanent offiable report on this question.
cials.
The
sation
and the status of officials is clearly set forth in the financial law of 191 r (Art. 41 following), which gave some degree of autonomy to the state railways.
^
ant.
Cf.
G. Demartial, Le Statut de
Fonctionnaires, 1909.]
104
LAW
IN
System to which four officials are appointed, chosen by the Minister from the delegates elected to the diverse committees and commissions of the system. This council must give its advice on the rules relating to official status (Art. 58, No. 2). This status which, according to Art. 68, was to be applied within a year, was established as the result of an agreement between the minister and these respective delegates. There have been some protests from the officials concerned. But with the coming of calm the agreement has been applied. Inherently interesting as it is, it is above all important as the herald of what will probably be the future organisation of such public services as
mal evolution
to serve.
to the
detriment of those
it
pretends
The
centralised service
distinct
from national
An
autonomous
department with its own budget is a self-sufficient legal organism and must therefore have its own law. The whole object of that law is simply to regulate its organisation and functions; and the law established
is
is
to say,
it is
An
which brings the offender before the courts. from national legto a decentralised service ap-
islation
and applied
SPECIAL STATUTES
istration of a great town.
IO5
This settles its own organand its own bye-laws. Under the name of ordinance it issues a mass of rules which in reality are laws dealing with the management of its business. Their violation again, as the Council of State has
isation
The statute governing an autonomous service is thus distinct from national law both by its purpose and its origin and
;
the
same may be
its
by each
university for
sity
own
administration.
Each univer-
petence.
Ill
The law
is
seen in still more striking relief in its relation to the special status which is being established for the civil servants of the different departments. The word status, which has become a technical legal term, generally describes the legal situation of a definite per-
a given
Thus, to speak of the status of the civil servants in department is to recognise that because they belong to that department they have a special legal
position.
If,
had the
same status, it would probably follow that its origin was a piece of national legislation. It would be different from the status of the ordinary citizen but it
;
Io6
LAW
IN
would be
parlia-
Each department sometimes completely participates in deciding, and determines, the kind of status it will have. Sometimes that status applies, and can only apply, to a single department. We have then a statute distinct from a national statute dealing with a definite group and applying only to those officials whose membership of
different.
its
special needs.
September, 1912, I the railway service as a result of an agreement between the management and the employees was given For that purpose a code of a special organisation.
in
how
was drawn up which was essentially a statute in that it was a general regulation to which a legal sanction was attached. It was not national legislation, because it applied only to a group distinct from the nation, and derived both its origin and its purpose from the special position of that group.
rules
This statement perhaps contains the answer to one of the most difficult questions of public law. French and German publicists have devoted much attention
in the last
few years
foundation
practical
The
question
is,
how
How, moreover,
SPECIAL STATUTES
repression at one and the same time?
107
In
all that
is
has recently been written on this quesa clear tendency to see in disciplinary a
tion there
group
distinct
from the
state.
Pro-
who
has so strikingly
as the pos-
entirely different
is
from
not derived
from the state's power to command. For him, the power to discipline belongs to groups like churches, communes, societies, the family^ the public departments and sometimes even the private
are entirely distinct
citizen,
who
from the
state.
My
colleague,
M. Bonnard,
seems
to
me
given the best explanation of the f acts.^" the right to discipline is the penal law of a corporation distinct from the state so that the two laws have
an origin and a
tinct.
modern law public activiassume a corporate form. The right to discipline in a public activity thus becomes the penal law of a corporately organised civil service. This fits in very well with a marked tendency of recent
insists that in
ties tend to
He
statutes
and ordinances
p.
214f.
^^
De La
Io8
LAW
it is
IN
I think
clear that
rows the
field of disciplinary
law when he
he does not use the word corporation in its historic and legal sense. But he certainly goes too far when he urges, without sufficient limitation, that public acIt is neverthetivities tend to take corporate form.
beyond question that disciplinary law is neither national, nor from the state, and is, in fact, the penal law of distinct and more or less autonomous groups. Such are associations of a regional or of a social charless
voluntary
so-
type.
which
The
partment is, then, the penal law of the group. That group has an organic law. But it has also a penal law of which the basis is the same as that of all repressive law; namely, the need to punish every act
which may inherently compromise the life of the group which is here the operation of the service. So
public
officials are
law has end the security of the people as a whole. The penal law of their particular service assures its operation in conformity with its fundamental purposes. Their domain is obviously distinct; but the official
national penal
The
SPECIAL STATUTES
;
lOQ
must nevertheless obey both. An act may be punished by one and not by the other it may on the other hand be punished by both. Penal repression does not exclude disciplinary repression and vice versa.
Obviously this renders impossible the imperialist theory of a unified law for all men in a given state.
This discipline is thus simply a part of the objective law by which any given public service is organised and it may thus itself be organised in the form
;
of jurisdiction.
fault of discipline
may be
fore-
no
act
it
falls
within those
categories.
So too with the penalties concerned. Statute may define the penalty to be pronounced by the disciplinary authority for any given fault. Finally the disciplinary penalty may be pronounced by a real court which assures the accused all the
which disciplinary reFor some officials the power to pression is evolving. discipline is exercised by real courts like the Superior Council of the Magistracy, which is only the Court of
This
is
certainly the
way
in
Council of Public Instruction. In some departments the scale of penalties is definitely established. It is clear enough that one day the faults that are to
be punished will be defined by
statute.
evolution of discipline, in fact, goes, step by step, along the same road as the public services see being built up a penal towards autonomy.
The
We
no
law.
LAW
IN THE
MODERN STATE
law by the
and yet outside of the national penal Public law is clearly no longer monistic in its
side
officials are subject to a discipline
imperialism.
Certain classes of
of a particularly interesting kind. These members of the deliberative assemblies and larly members of parliament.
The
utes.
They
voted by each chamber. They yet constitute for every member a definite law. The chamber may of course modify its ordinance, but so long as it exists
it
These ordi-
They
may,
which
cen-
mem-
in the
Chamber
(Art.
This penal law is applied either by the president or by the chamber and is obviously a sentence pronounced by a court. It is difficult to reconcile all this with the conception of law as the command
126).
of a sovereign will.
tion.
It is doubtless a
general regulastatutes
But
it
it
tutionally
established
formulate
even
though
to explain
I have tried by suggesting" that each political asan autonomous corporation exercising over
its
disciplinary
"Tralte.
11,
members a legislative power, so that its sections would be its penal law. But it
317.
SPECIAL STATUTES
is
III
perhaps simpler and more accurate to see in the legislature not a corporation but an autonomous public service of
which
legislation
is
the function.
Its
would then be its organic law and as an autonomous body it would have its special law like the public services of which I have spoken above.
rules
lY If deliberate assemblies are not
autonomous corthis
par-
mains the distinguishing feature of the end of the nineteenth and the beginning of the twentieth century. The Revolution did not recognise the right of association. Le Chapelier's law expressly prohibited professional groups." The penal code prohibited under heavy penalties every association of more than twenty persons.^^ An association, indeed, is a It was logical enough. group so formed in the midst of the national life as The association has its to break its absorptive unity. law distinct from the national law a concept quite impossible in the imperialist theory, which, making
him
to
law
as a sole
^* Arts.
d'Association,
[On the right of association, cf. Weill, Droit 1893, and the valuable note in Dicey, Law and
112
LAW
IN
was compelled to renounce allegiance to any group save the nation for that would have been to admit the authority of a law different from its own and so to destroy the unity of sovereign power. Le Chapelier's law expressed these ideas in their In its view, professional asfull and logical clarity.
sociations are contrary to the principle of liberty
He
which is the fundamental basis of the constitution; they must then be prohibited under every shape and form. Very notably it is forbidden for citizens of the same class or profession "to form regulations dealing with their supposed common interests." ^* Such a corporate law would clearly be directly antithetic
to the principle of a unijSed legislation.
Clearly, the
^association has
way
in
come
We
That is a theory defended to-day only by antiquarians. Those who drew up Le Chapelier's law were in no wise deceived on this point. They saw clearly the way in which the statutes of an association control their members and that is why they forbade them as conclauses of a series of individual contracts.
The law
of 1901 on the
an association
the civil
SPECIAL STATUTES
tit.
II3
This
is
merely a
legislative error.
And
it is
worth noting that the law of 1901, which is the antithesis of individualism and derived from an evolution fatal to individualism, was drawn up by men
who
is
invoked
at
It
new
proof,
amid
which
his
own
statute is yet a
The
statutes of
by the Napoleonic code, is entirely an individualist conception. It implies two declarations of will, each
with a different object in view; these declarations come after an agreement by which they are mutually
determined.
tract
is
The
who
studies the
formula of stipulation in
several wills
Roman law. But when come together without prearranged agreement, when they have the same object without
common
pur-
We
have what
oration,
is
to-day termed
the
common
action in collab-
what
barung;
we may
in a sense quite
Germans call (^esamif}fakt, ^ereinword contract, but we use it different from its original meaning.
use the
is
no contract bepurpose,
common
114
all will
same
thing.
Their declarations of
in-
cur in a common end. There is no agreement of will between the thousands of persons who may belong to the same association without knowing each other. On the other hand, contract always gives rise to what is called a subjective legal situation. In these technical terms contract creates a concrete and immediate bond of law between the two contracting parties of whom one must do something and the other can command the doing of it. The situation is entirely individual; it binds these two persons and no others. It is a well-known principle of the civil law that agreements only affect the contracting parties. The situation is, moreover, a temporary one; when
the debtor has fulfilled his obligations the
bond
of
law
ceases to
The
statutes of an association
members
as,
are defi-
bound by
is
certain obligations,
for instance,
This
obli-
gation
It
is
the result of
to its
The
to
thenceforward a legal obligation entirely analogous paying one's taxes. He may have to pay it even
it is
when
^^
raised in
amount
if
Laski,
The
SPECIAL STATUTES
position.
I15
He can of course resign from the associahe always owes his annual subscription, and even more, if the rules so decide.
tion;
The
law
;
purpose of the association and by setting its purpose its legal capacity. The law of 1901 rightly made its purpose the essential element in the association. The third article gave legal existence to every association with a legitimate purpose. The sixth article permitted every association of which the purpose and formation were declared and published to acquire such immovable goods as were necessary for the accomplishment of its end. Since this end is determined by its rules, they form an organic law.
they settle
Nor
pacity
is
this all.
The
Here, again, the pressure Every act done in of a real organic law is violation of the rules, for example, without the apously their competence.
that
proval of the general body of the association, where is necessary, or by the president alone, when the
void.
co-operation of the directors is demanded, is null and This nullity can be brought into play not only
also
by third
parties.
It is thus
On
They
tion of
illegal
by the courts.
Il6
LAW
is
IN
This
public character.
nition.
by the decree of recogbe found in the rules: "They (associations pursuing a public purpose) can do every civil act which is not prohibited by their rule" (Art. II, Sec. i). The decree of recognition only
their agents are not instituted,
These are
company.
of gain.
The
view.
is
whether
this distinction
well founded.
In any
it
memis
while
may
can have no influence on the nature of these rules. Like the rules of associations, those of a company are real laws which determine its end and its capacity,
create
its
organs, regulate
its
transactions
This
it is
may not be
company; but
are
organisations of
is
which the number and importance growing from day to day. Every modern country, and very notably France, a mass of groups. We have associations, federa-
_.
SPECIAL STATUTES
II7
industrial companies,
mining companies, insurance companies, public contractors. Each constitutes a social group with its own law of life. The theory of the modern state is therefore compelled to adapt itself to the existence of these powerful groups. It must determine a method of their co-ordination. It must settle their relations with the government that exercises public power.
It
is
Certainly
it
cannot
be solved by maintaining the traditional notion of sovereignty and statute. Conservative thinkers have believed that it was possible to prevent a formation and development of their groups. Until 1867 governmental authorisation was necessary to the formation of a limited company {Cf. English Companies
Act
of 1862).
The
right to
granted in a limited fashion in 1884. It was not till 1 901 that any general freedom of association was es-
and even then a system of limitation was erected. But erected in vain. The movement towards association swept everything before it. Group after group was formed despite the anathema
tablished;
of the impenitent individualist.
The
collectivist an-
state
would absorb
these groups.
He
in
saw
war
to the nationaliIt
was an
er-
It
found
its
root in the
Il8
LAW
IN
At bottom the
collectivist
The facts made havoc of these theories. Prophecy may be a dangerous adventure, but the immense development of group
ity
life in
seems so general, so spontaneous, and so characteristic of our time as to demand the admission that it contains at any rate the elements of the social organisation of the future.
to
be based on the idea of a unified and indivisible sovereignty. It is and it will be an objective law of
law of government which does not command. It is the law of a government which serves the public need and secures the co-ordigovernment; but
it is
the
nation of the
modern corporate
life.
The next phenomenon we have to discuss reveals even more completely the collapse of the old concepStatutory agreements are in their nature tion of law. simple enough they are laws properly so called, gen;
eral regulations of a
tle for
set-
an indeterminate length of time the situation of individuals and determine capacity under the
cBgis of a legal sanction.
They
work
of a
unilateral will
which commands.
They
work
SPECIAL STATUTES
association or a decentralised public service.
I19
They
are the
work
of wills
which
is
really
form an agree-
ment.
civil
The word
contract
them; but since that has a technical meaning in the law it is better to use the term agreement. The agreement is formed between two or more groups. It creates a set of rules which applies not only to those who belong to those groups at the time when the agreement is made but also both to those who will later belong to them and to third parties who do not
belong.
A statutory agreement
the history of law.
tion the
It
is
not a
new phenomenon
If
in
is
law
is
by
it
defini-
command
of a sovereign power,
cannot
terms are mutually exclusive. That is why statutory agreements have made their appearance in legal history at times such as the feudal period
when
the idea
how
Roman
how
on a regime of contract,
men
duties. The king as suzerain superior was charged with the assurance of their fulfilment, because it was his business to secure peace by means of justice. No society was more strongly intrenched than the French
I20
LAW
IN
it;
and the twentieth free century no more than any otherhas been able
that disturbed
from violence. Feudal anarchy and feudal barbarism have become cliches w^e no longer use. The fact is that the feudal regime w^as essentially both legal and contractual.
itself
many
social relations
from
from contracting purposes. Now since this same phenomenon was produced in that feudal period when the notion of sovereignty had almost completely disappeared, it may be urged that the renewed appearance of statutory agreements is so
significant as
above
all to
make
Wide enough
;
domain
it
they are distinct because they apply to different situations, each display very clearly the combination of
statute
tive labour
and agreement. The first type is the collecagreement and the second the delegated
utility.
operation of a public
The
collective labour
'
agreement
still
is, it
must be admitted,
a legal institution
in process of formation.
It intervenes
between
As
and puts an end to it. But often enough the problem of its interpretation
arises out of a strike
soon raises
new
to
difficulties.
it
have tried
give
a theoretical basis
by applying
to
SPECIAL STATUTES
it
121
The
its
members, v^as compelled to give up the proposed statute it had attempted to formulate " and the
;
Chamber
before
The
is
not as-
tounding.
act w^hich
to
be made.
Collective
labour agreement can reveal neither its value nor its implications until the employers and the workmen in any given industry are so strongly organised both in
structure and
numbers
as to
make
cerned almost a legally organised body. It is then that the collective agreement will so regulate the relations of capital
and labour by
as to be^the
law of an
organised profession.
ordination of classes
tracts
agreements between the different groups in which each class is integrated." It is difficult to say when the evolution will be acseries of
^^ Bulletin de la Societe d'Etudes Legislatives, 1907, pp. 180, 505, espec. the report of M. Colson. "Bill of M. Doumergue, July 2, 1906; Bill of M. Briand, July 11, 1910. **
by a
122
LAW
IN
complished, but
clear.
its
perfectly
vention of parliament
In any
tion
is
mandate. It must be inspired in its action by the idea of a law of conduct based on agreement and applied to the relations of two social groups.
tract or
VI
There
is
drawn important conclusions therefrom. I mean where a public authority confides some business
to a private contractor.
citi-
company, with assuring the operation under certain determined conditions which are comprised in a deed called its charter. The company accepts the task and this concession has the same general character all over the
zen, as a rule a
of a public service
world.
The
Such
a concession
is
a definite agreement.
It
is
preceded by negotiations which lead to an understanding between the administration and the com-
It comprises
SPECIAL STATUTES
a
123
number
which
between the public authority and the company being thenceforward the relations of debtor and creditor. Some of these clauses deal entirely with the relations
of the two parties; others contain material which would not be agreed upon if the public service were directly managed by the state. Such, for example, are the financial clauses which we find in almost all these charters clauses which deal with grants in aid
promised by the company or with the division of profits. All these clauses, and others of a similar nature, are regulated by the rules of the civil code dealing with contracts since they are effective only for
;
Most Most
of of
utility shall be operexample, it is a railway or a tramway ated, if, for service, the agreement settles what lines are to be controlled and operated, how many trains shall be run, how the safety of the employees and travellers shall
Other clauses deal with the conditions under which the public may use the service probe secured.
vided; the price of
light rate.
settle
tickets, the
In most charters there are clauses which how. many hours the company's servants shall
124
LAW
IN
work, the
ditions of
minimum wage
employment, and the organisation of a penSuch charters give the service concerned sion fund. practically a statutory organisation. In France by the Millerand decrees of 1899, clauses dealing with the maximum hours of work and the minimum wage must be inserted in all state contracts and may be inserted in those made by departments, communes, and the different public offices; and in most of them
they are so inserted.
less a
Were
managed
by the
settled
by statute or by administrative regulation. No one would then deny their inherent statutory character; but the mere fact that they are inserted in a charter can not change their character. They still remain general regulations which any person, either
directly or indirectly interested in the service, can bring into operation. That would not be the case if
these clauses
tract
is
were merely contractual. Such a conbetween the parties to it. We are compelled, therefore, to call them statutes; but because they are established after an agreement between the government and the company they are
effectual only
really "lois-conventions."
is
no longer conceived
as
command
fact that
of the state.
it is to
Its strength
derives
from the
SPECIAL STATUTES
terest.
12^
When
It organises the fulfilment of a public need. the organisation and functioning of a public utility are regulated by a unilateral act of the state its
statute
remains unilateral.
But when,
as
with a pub-
confided to private enterprise, its organisation and functioning are settled by agreement, the
lic utility,
statute
which
vention.
with
all
the
character of a
is
at-
VII
This is not mere theory. The decisions of the Council of State are beginning little by little to recognise in the clauses of such a charter a statutory convention.
The terminology
of Justice
is,
indeed, still uncertain and on occasion the persistence But the phrases matter litof the contractual idea. tle the real fact is that the decisions definitely imply
infcxact, in that it reveals
;
Department
is
thus
If such a charwith the legal sanction that attaches to statute, it follows that every administrative act done in violation of it must be void and every person af-
it
This
is
actually
126
I
LAW
IN
have already cited the Storch cases of 1905, in of State admitted the plea that the prefect could not permit a tramway company to perform an ultra vires act/ It must be said, however, that the real problem in
this decision
charter as
of
was not so much the violation of the In the the police power of the prefect/"
and taxpayers prefect of the Gironde who
to operate a certain
had refused
cision bears
compel
company
its
line in conformity
with
charter.
it
Though
opened up
the dea
marks
of hesitation,
new
path/^
State, acting
M.
Teissier, of the
Department
admitted a statutory character for the clauses of the charters of the great railway companies." Finally
in 1912 in the
Marc
The
is
settled
by
a regula-
tion affixed to the municipal budget in accordance with the charter voted by the town council and approved by decree of 1907. By a decision of 1908 the prefect of the Seine decided that the provision of
Chap, n,
vi,
supra.
Sirey, 1907,
iii,
33.
SPECIAL STATUTES
ing should be
"127
made under
different conditions
from
The
Chamber
of Paris
Landowners went to the courts on the ground that the charter, a law of service imposed on the administration no less than on private citizens, had been violated.
The Council
decided in substance that the decision of the prefect of the service was in violation of the charter.^^ This surely can only mean that the charter is a statute for an action of ultra vires is a good plea only when a statute has been violated. The actual decision, no less than the governmental note upon it, is somewhat confused; the court still speaks in terms of contract and does not admit that
;
the charter
ity.
is
If
it is
a contract,
inexplicable
it
how
private
citizens
who
It
is
of
it.
ground that
it
quest of persons
who have no
is
:
connection with
it.
The
contradiction
mental note
in the decision
is
to say,
unacceptable.
how
bad,
Recueil, 1912, p. 75
Revue de Droit
Revue de Droit
128
LAW
we
IN THE
MODERN STATE
but
finds favour
with the Council of State. That court in fact must accept, with the great majority of modern writers, the theory that the charter
tract.
is
not a con-
Only
No
theory is good that does not fit the facts ; the Council of State recognises that its theory is unworkable; let
it
change
is
it."
M.
Jeze
is
ory
we
the
are given.
theory,
it
From
tramway
companies
of
its
is
apparent.
It
is
with finance, create and are thus contractual. But that is not the case with the clauses which deal with the operation of the service. The government has the power to modify them by its own act, which would not be the case if the relationship were one of
clauses, like those dealing
contract.
Nor
is
which
is
power
made with
the state.
It
is
legal
dangerous sophism of which the result is to give a Contract basis to arbitrary public power.
only.
It
means the
SPECIAL STATUTES
same thing
in public
I29
law
as in private.
The
finan-
can modify them, even if an indemnity is ofifered. That part, however, of the charter which is a statutory convention and governs the operation of the service cannot be completely withdrawn from the action
of the administration.
It
is
not to be forgotten
that the
it is
function of government
so to respond to the
Government cannot abdicate that power; it must therefore modify in the public interests the means by which a public utility even in private hands is operated. When it does that, it does no more than
country.
fulfil its
duty even
when
it
of operation.
can its decision be attacked as ultra vires. It does not give rise to a subjective legal situation what it does is simply to modify the legal regime under which a given public utility operates.
;
Nor
The Council
ernmental power.
ultra vires because
it
decided
was not
it increased the burden of the great companies which were operated under the railway
regulation of 1846.^^
The
company
certain obliga-
130
LAW
IN
the Bouches
What can be done by ordinance can obviously be done by formal statute. This was clearly recognised by the Minister of Public Works in the memorandum to the scheme relative to the union of railways and waterways of 1908 which notably modified the system of railway transportation. The Chambers have
also implicitly recognised
it when they voted the penand 191 1, despite the protest of the
companies involved.
government, by its unilateral decision, modified the conditions under which a public utility is privately exploited and
question remains.
One
When
In the decision cited above the Council of State has decided in the affirmative;
as
statute in 1908.
to recognise
The
and
It appears to the new burdens the state has imposed. have based its action on the theory that the charter is Such an argument is in fact contradica contract.
tory; for
if all
even
when
it
pays compensa-
"
Revue de Droit
SPECIAL STATUTES
tlon,
131
ought not
truth
is
to
fication.
The
that of
is
A
If
public utility
its
interest.
operation re-
damage
make
the reparation.
fits
In
the
prejudice
chapter.
it
But
However
this
may
be,
it is
those charters
which
even though they are established as the result of an agreement between the
utilities are definite statutes,
government and
ist
a private
company.
is
passing away.
CHAPTER V
ADMINISTRATIVE ACTS
Similar and parallel evolution may be observed in relation to governmental activity. The imperialist system regarded governmental action as unique in that it was a manifestation of sovereign authority. Governmental action is undoubtedly different from
statute in that the
cial,
one
is
offi-
tinction
to see
It
whether an ordinance, an individual decision, or even the performance of a simple menial task. Those were "administrative acts of some sort or kind" of which the Act of Fructidor i6th of the year III speaks. There was no question, of course, as to action by the courts no analysis was made of the character proper to judicial functions. A judicial power which belongs to the courts has been instituted. All acts which emanate from them have a judicial character just as all acts done by the
ecutive
its
power or
agents,
For
however
may
ADMINISTRATIVE ACTS
common
They
tive; they
133
whatever they do has a certain sovereign character, and cannot therefore be dealt with by the courts whose competence is limited to the acts
of statute; but
of private citizens.
cited
is
The Act of Fructidor already and formal as possible on this point "The courts are strictly prohibited from taking cognisance of administrative acts of any kind."
as general
:
The
act
is
thus simple.
official, it
Since
it is
mental
It is easy to imagine how this would impress the average citizen and indeed the French mind has still
;
retains even
The
administration, indeed,
still
is
retains a
not derived
limit.
The
naits
It is still an individual origin but from its purpose. act done for a public end. This is a transformation exactly similar to that of statute. A statute was a general order derived from a sovereign will it has become a rule established to supply some public need. An administrative act was clothed with sovereignty because it was an act of the agent of the executive power; it has become the act
;
134
LAW
IN
of an individual of
solely
the character
is
derived
serves.
Naturally
been com-
pleted in a day.
It
is
now
more
making
is
been made between administrative acts done under the cloak of sovereign power and the mere fulfilment
of orders
government servant technically unreThis distinction was first formulated by M. Laferriere in his great book which appeared in 1887^ and marks a fundamental epoch in the evolution of public law. But the theory was based upon an earlier preparation and came into being through a cause entirely strange to the problem of the real nature of administrative acts. by
a
I pointed out in the beginning of this chapter how, from the sovereign power attributed to every administrative act, it was concluded that no authority, not even the courts, could pass upon the legality of ad-
ministrative action.
VIII indeed
tion."
^
^
The constitution of the year has given the Council of State the task
of "solving difficulties
of
June
Consular Decree of 5th Nevose Year VIII 11 and June 22, 1806.
ADMINISTRATIVE ACTS
given
bly.
it
135
an organisation; and Napoleon created a commission to prepare reports for the general assem-
as a court.*
even in semi-administrative questions it only gave advice; and the decision always remained with the government. With both the legality and the results
of executive action the government continued to deal.
and were given an extensive judicial power of passing upon administrative acts; but their courts were always composed of administrators, nominated and
dismissed at the will of government.
They
thus pre-
the government,
made them
hand
it
useless.
Under
up.
movement grew
that the special
On
the one
was urged
on the other hand legal theorists tried to limit the number of cases where the intervention of an administrative act should withdraw the problem from the
control of the ordinary courts.
'
[On
its
Hauriou,
its his-
For
137-301.]
136
LAW
was
IN
to
this result
make
a distinction
acts.
tendency was originally expressed in an article by the Due de Broglie in 1828 (Revue franFrom that time till 1872 the gaise, March, 1828). suppression of administrative courts remained an esfirst
The
ment came
to nothing.
Again
in the
name
of the
M.
Le-
fevre Pontalis wrote a long report urging the suppression of prefectoral councils and the transference
but the National Assembly did not vote upon the proposal and the Councils still exist. By the act of May 24, 1872, the Assembly recognised the Council of State and gave it full judicial control with the widest powers. It was to deal as a sovereign body with every
;
case in
The administrative courts were thus retained. The movement, indeed, for their suppression was bound,, to fail for many reasons. In the first place,
the belief that the administrative act
is
clothed with
power remained too strong; and the deduction was made that
the sovereignty incarnate in the executive the executive alone could thus judge the validity of
its
orders.
To
On
[This
is
still
a great problem.
p.
25.]
ADMINISTRATIVE ACTS
penetrated the idea of public service.
to see the intimate
ITJ
They began
bond between the administrative act and the response to public needs. They had a marked repugnance against allowing the ordinary
courts to concern themselves with these questions.
result.
The Act
of 1892 has
made
of
it
power which
inspires an
unlimited confidence.
this legislative evolution legal
theory
has had to find a system which, harmonising the confused and often contradictory decisions, should maintain unbroken the principle of administrative separation, while defining and limiting its extent.
The beginning of this theoretical construction goes back to Merlin and Locre. In the year XII, Merlin powerfully protested against the effort under the Act of Fructidor 16 of the year III to take from the ordiIn nary courts all cases derived from contracts.* his work on French Legislation and Jurisprudence In the (1810),^ Locre maintained the same opinion. classic works of Aucoc, Ducrocq, Batbie, and Dareste, a clear effort is made to distinguish two categories of administrative action of which one only gives rise to the need for special administrative
courts.
^
Questions de Droit,
p.
V Pouvoir
Judiciare (1829),
vi, p.
306,
At
166,
138
LAW
IN
The climax of this doctrine is in M, Laferriere's work. He divides administrative acts into sovereign and non-sovereign; and only the former demand in
principle the special
administrative courts.'
is
The
On
come
They should be
cases
Such
form what
The understanding
tion of the direction of
of this
is
essential to a percep-
modern
political theory.
The
acts
distinction
power
of
Viewed from
this standpoint, it
had for a short period a very curious history. It was urged that it dominated all public law and was universally applicable.
The
attempt to extend
it
re-
vealed at once
its
futility
and the
real character of
administrative law.
II
It
is
not sufficient to
make
a distinction
acts; it
between the
is
necessary
and the criterion This was no General and vague formulas it was of
distinguished.
ADMINISTRATIVE ACTS
course easy to find
;
139
M.
formula:
"A
double task," he
administrative authorities.
On
the one
manage the public funds, collect them for their different purposes. In the fulfilment of this task they perform what is called non-sovereign
on the other hand, the administration is charged with an authority which is one of the attributes of executive power. It is its business to execute the
acts;
citi-
The
ad-
and what
of
its
it
does
it
sovereign power."
M.
Lafer-
was too great for it not to be accepted with unanimity. It was affirmed in every book and there was no law school that did not teach
it.
Yet, as a formula
it
and precision that a legal principle demands. This defect M. Berthelemy tried to remedy in his admirable book on administrative law. He postulates as a dogma the distinction between sovereign and non-sovereign acts. A practical criterion for distinguishing between them he describes as follows "Non-sovereign acts are acts which any person may do in the administration of a private fortune because
ness
*
140
LAW
IN
been suggested that this principle enables us to solve all the problems of public law. It has been held to contain the distinction in principle between natural and statutory administrative acts. Not only is it urged that the state is responsible simply for non-sovereign acts and never for sovereign acts, save where that responsibility has been established by statute; but the problems connected with the civil service are, so we are told, capable of solution by its means. Civil servants who perform sovereign functions are, it is claimed, appointed by unilateral act of the state; they cannot form trade unions or professional associations; they cannot strike. Civil servants who perform non-sovereign functions are in the
Their relationship They can go on to the administration is contractual. strike and they can form trade unions in so far as their functions enable us to analogise them to the or-
same
dinary workman.
For some years this has been the general trend of But even in the precise form that M. Berthelemy gave it the distinction was still vague enough. There is no one administrative activity that some time
doctrine.
p. 139.
ADMINISTRATIVE ACTS
jurisdiction, pays
I4I
no regard
to the distinction
acts.
between
clear
a
Nor is
is
it less
involved
when
which,
if
Finally,
the syndicalist
movement
in the Civil
dis-
would lead
to impossible consequences.
It
would involve
form a
union with the implication of adherence to the C. G. T., for almost all the Civil Service and the admission that they may go on strike. But this is in complete contradiction with the very idea of service and public
duty."
These
is
facts
M.
Berthelemy
it
impossible to maintain.
M.
Teissier, asjcouneJ,,^or:^_tlieZ
government, demonstrated conclusively its impossibuTtyT "This distinction," he said, "has no legal basis and at no point corresponds to the facts at issue. The truth is that every state act performed to assure
the operation of public services involves the application of statutes
We
^^
may
[See,
its
officials
citi-
tionnaires
M.
Leroy,
Syndicats et
Services
Publics,
1909.]
142
zen."
LAW
IN
This ably puts the essential point. Administrative intervention must always differ from private action because the end it has in view is different. It aims simply at the legal response to public need.
Ill
however, to say that the government always intervenes in the same way. Its action varies according to the circumstances of the case, even while the principle involved is constant. This is demonstrated by the consequences of its action. Sometimes administrative acts result in a subjective
is
That
not,
legal situation
We
have
official the
which
is
purposes of a pub-
Such
:
a situa-
tion
act.
is
that declaration
must conform to the objective law, and since the day we may always equate objective law with legislation, it may be said that the announcement of official purpose must base itself upon statute. Some acts are by their nature beyond official power.
On
is
legally limited to a
and within
is
is
This
Any
purpose
act, es-
The
every legal
Administrative acts
the end
it
143
is
has in view.
to
and more
cial act to
be legal
essential
it
with the objective law of the country in question. Metaphysical considerations apart, every act of will has a motive behind it and the value of every administrative act is the object it has in view, which can only be a regard for the public service. Any other motive involves an abuse of power; if the motive is good, but beyond the capacity of the agent, there is a misuse of power. Abuse and misuse of power are two legal theories directly connected with the idea of the end of law which are becoming daily of increasing importance." In private law the change is precisely similar.^^ For a long time the Civilians considered only the result It is of course true that in the Code of an act of will. Napoleon (Articles 1131-1133), will was placed under the title of Cause; but the highest authorities agree that cause in fact plays no part in the birth of an obligation. We have now a whole line of cases
a socially valuable
in accord
aim
which,
ities,
make
first
its
social value
of the
importance.
the
The fundamental thing is not the character of agent who acts, it is not the result that he achieves,
^^
but
Law
ed.), p. 394f.]
^^
(1912),
52seq.
144
LAW
IN
produces certain special effects, it is not because it is derived from a special will with special powers. As a matter of sober fact, it is derived from a will no stronger than any other will; but the end it has in view gives it a heightened force in value.
This end must be public in character. If in public law a legal result is often produced by a similar act
of unilateral will,
of the agent,
it is
is
who
de-
the public
it
serv-
sovereign in cl^aracter, because, in accord with the current imperialist and individualist theory,
not imagined that the legal situation could be created
without a contract, or at least that a will more powerful than other wills could create by its own force a
legal result.
If
many
many
When
an
official
and a private
is
the basis
Acute search has not diswhen the adminunilaterally and when in contractual
situation needs
its
fashion.
Every
separate analysis,
and all that can be said is that the tendency of public and private law to-day is the diminution of the sphere of contract and its replacement by unilateral activity. This tendency is connected with what I have called
ADMINISTRATIVE ACTS
the socialisation of
145
law on the one hand and the growing importance of the purpose of law on the other. The two movements are essentially connected.
Since the act of an official derives its force and its consequence from the public end it is to serve, it may
be asked
its
why
is
it is
necessary to inquire
when
the de-
termination
unilateral or contractual.
it
It derives
serves.
This
in itself
shows
it
how
what fashion the theory of the state is That is why the border line between public and private law is becoming, more and more perhaps, the fundamental aspect of modern law. It of course appears under different aspects as the act from which it arises is different. But every administrative
shows
changing.
act has one
common
by every administrative case is the question of knowing whether the act had in view a public need and conformed to the organic law by which the service
corresponding to that need was operated. This explains the disappearance of the traditional theory that the administration cannot be bound by its unilateral acts. This was simply a deduction from
the supposed sovereignty by
which the unilateral acts were distinguished. But, as of the administration soon as it is, on the contrary, seen that an administrative act is a legal act, and creates a legal situation, it is clear that whether contractual or unilateral it is beyond the reach of the administration either to suppress it or to modify it. When the administration
146
LAW
IN THE
MODERN STATE
it is
simply because
this act
Here
again,
infer State
its
decisions
Jeze has summarised decisions of three cases dating from 1910 and 191 1 as follows: "Where a legal act has been completed in accordance with law, it cannot be revoked in the sense of being considered as not having occurred, and being without result. All that can be done is to perform other legal acts with the purpose of putting an end to the legal situations created by nor is this always possible. It may the first
M.
happen
change
;
it is
later act
useless."
"
The
concept of purpose, and the elimination of the idea of sovereignty, together explain why the question as to the obligatory character of the contracts made by the
no longer necessary. It is easy enough to understand the difficulty that conIf the state, it may be fronts the imperialist system. said, is by definition a sovereign person, it preserves
state
with
its
citizens
is
p. 61.
ADMINISTRATIVE ACTS
this character in all its acts
147
whether contractual or
unilateral.
As
bound
per-
so
bound,
;
its
it
would then
to
be without subordination
ever.
it suffi-
ciently well
ited
by saying that sovereignty is always limby the natural rights of the individual. The state therefore can only proceed by way of its contract when it encroaches on the realm reserved for
state as a fiscal
individual rights.
M.
In
this
person alone which can be a party to a contract; being non-sovereign, it has the attributes of a private
This theory of a double personality has been keenly criticised by French and German jurists,
citizen."
"Hatschek, Die
rechtliche Stellung des Fiscus
iv, p.
11 seq.
way
its
agents.
Law
148
LAW
IN THE
MODERN STATE
The
latter has
Sometimes the
it
state
it
then
contracts.
It
remained
for
M.
Ihering
to invent,
and
M.
is
The
charac-
be completely self-deterit
mining.
When
own
consents,
effort of its
self-determining,
even in so limiting itself, by being thus completely remains sovereign even when it
submits to contract.
The mere
state is
is
the evi-
dence of their
No
bound by
contract,
and
dence that the concept of sovereignty is in process of disappearance. No organ of the state, nor even the legislative body can overthrow its contracts. An act
state
was
would condemn
if
the act
had not been made. The old conception of contracts of public law by which the state was authorised to withdraw from its obligations has had its day." A contract is a legal act with the same character both
1^ System der Offentliche Subjektiven Rechte (1905), p. 209; Michaud, De la Personnalite Morale, I, 262. "Allgemeine Staatslehre (1905), p. 357. ^' [It is of interest to compare American experience on this Fletcher v. Peck, 6 Cranch, 135.] head.
ADMINISTRATIVE ACTS
in public
exists
149
and in private law; or rather no distinction between public and private law and the state is bound by its contracts exactly as a private citizen is bound. It has been noticed that in condemning the state, even when legislative acts try to free it from
do not pass upon the quesfrom an act of parliament. What they do is to pass upon a contract and on the extent of an obligation which the parliament cannot suppress. The Council of State gave in 1896 and 1904 two typical decisions on this question. By an agreement made in i860 between the French government and
its
handed over certain rent charges to France which, in return, under the form of pension, was to give them the equivalent of the arrears. In 1883 the French chamber refused to vote the necessary credits for the payment of the debt. The Minister of Finance was
thus unable to authorise the outlay.
State
terial
The Council
of
by
its first
obligation
order and enjoined the Minister to liquidate his that is to say, despite Parliamentary de-
was ordered to In the debate of December 22, 1899, M. Caillaux, then Minister of Finance, asked for a vote of credit to comply with
cision to the contrary, the
state
French
pay
its
this decision.
He
p.
of the
state,
"Recueil, 1896,
150
LAW
IN
ment, gave
an obligation. This decision was upheld in 1904 under similar circumstances." The clear protest of M. Millerand, the Minister of Public
rise to
Works,
in the
Chamber
M.
Jaures to pass an act which would have freed the state from certain obligations to the Western Rail-
way
Co.,
is,
of course, well
known.
So far the unilateral or contractual activities of the administration have in this discussion been of a legal kind. In its largest sense the term administrative act comprises also the whole series of operations
in their na-
They are not, however, legal in character and ture. may therefore be called material administrative acts. The term is applied to the innumerable activities of
state officials to assure the
ices
and particularly those we have called the indusand the telephone system. The number and the complexity of such acts is growing with the increasing complexity of the
state.
They
performed
to create of
but since they have in view a public end they fall under the domain of law. Often indeed they are the
preparation for a legal administrative act; they constitute the
ADMINISTRATIVE
becomes valid and thus make part
rectly related to
it.
ACT5>
it.
I^I
of
Often again
are neither
its
completion nor its preparation they are not now legal, because they may involve responsibility on the part
of the administration or the civil service to private
citizens.
This
essary.
analysis, if
somewhat
arid,
is
nevertheless nec-
What it shows is that if administrative acts have different aspects according to the conditions under which they arise, they have two characteristics in common of which one is negative and the other positive. No administrative act is derived from sovereign will. All administrative acts are pera formed by a government official with a view to securing the operation of a public service and must be made conformably with its statutory organisation. In such an aspect, every element of public law has statute is its connected place in the whole system. creates, organises and a general regulation which operates some public service. An administrative act is the individual and concrete act necessary to the operation of the service and performed in agreement with statute. Every administrative process, therefore, gives rise to the question as to whether it conforms to the law of the service concerned.
VI If this
is
true, the
clear.
An
administra-
152
LAW
IN
tive case deals with any question relative to governmental operations. Every case of this kind comes within the jurisdiction of the administrative courts and the nature of the act concerned is immaterial.
The
is
entirely
what the second half of the nineteenth century seemed to expect and to what M. Laferriere in 1887 and 1896 predicted. In the imperialistic
antithetic to
and for that reason the law of Fructidor (year III) deprived the courts of all such jurisdiction. It then became necessary to distinguish between acts clothed and unclothed with sovereignty. That was clearly impossible; and it became apparent that the
act;
common
came from
It then
became necessary, from the point of view of administrative law, to treat them as identical and to withdraw all alike from the jurisdiction of the courts; so there was a logical return to the system of the year III. But it was at this time that there was established a general administrative competence by reason
of the sovereignty implied in every governmental act,
just as to-day
it
an important fact not to add that this evolution has been hastened, on the one hand
It
to neglect
would be
by the ignorance and inertia of the ordinary courts, and on the other by the independence, the learning, and the fine impartiality of the Council of State.
ADMINISTRATIVE ACTS
Many of
the ordinary courts
153
still stand where Roman law and Pothier stood. It is of course true that some of the courts hand down decisions that are making a new civil law alongside the new public law; but this is either due to the presence on the bench of a few
great judges or to the unconscious need of circumstances stronger than the, courts.
It
is
indubitable
still
impressed by
Frenchman and
that
many
sider an administrative act as a sacred thing. It is not then astonishing that private citizens should have
little
was obvious enough would be built on the Council of State which, in every circumstance, has found means, more even than in the Court of Cassation, to protect
administrative problem; and
that their hopes
it
ministrative power.
Every question
of jurisdiction, therefore,
comes
is It
act
is
If
it is,
ministrative courts,
cite
some of the
cases
In 1903 the Council considered a case which arose out of a meeting of a general council, which was
154
LAW
IN
One Terrier brought so many vipers' heads that he used up and went beyond the actual sum allotted to the department for the purpose. The prefect refused to pay him his due, and Terrier therefore sued the department before the Council of State. The latter accepted the plea on the ground that the general council had organized what was virtually a public utility, which the representative of the government compared
to the wolf-destruction of other departments.
He
was competent
to take
cognizance of the
its
The Council
contracts.
ad-
however, to be said that where the case was concerned with the local authority, jurisdiction belonged to the ordinary courts. To-day the
It used,
case,
where
This was clearly settled in the Theroud case in 1910, where the town of Montpelier made an agreement for the removal of dead animals.^^ It was held that, since the agreement had in view the sanicerned.
^oRecueil, 1903, p. 94; Sirey, 1903, ^iRecueil, 1910, p. 193; Sirey, III,
Hi,
25.
1911, p.
17; Revue de
p.
353,
ADMINISTRATIVE AgTS
tary security of the population,
155
it was a general governmental act, and in default of a precise text handing it over to any other court, jurisdiction belonged
So far
as the
rial acts is
as to responsibility.
even more
The
first
Court of Conflicts, instituted by the Constitution of 1848, had settled that the administrative courts alone had jurisdiction to deal with the damages that might result from governmental action. It cited the Acts of July 17, 1791, and September 26, 1793, which settled that the government alone could make the state a debtor. As a fact, these acts had no relation to the question of venue; their purpose was simply the
liquidation of state debts without recourse to law.
real motive of the decision was not admitted. beginning was made, not without hesitation, of admitting that the state was responsible for acts arising out of the performance of its functions even while
The
there was a
dim
was for
to
keep
under the Second Empire the Court of Cassation several times admitted the comities;
nevertheless,
The
1872.
question
came
May
24.,
Damages had
156
LAW
IN
been claimed against the state as the result of an accident to a child in the tobacco factory of Bordeaux. In a decision handed down, after disagreement, under the presidency of M. Dufaure, the Minister of Justice, the Court of Conflicts decided that the case was But the decision no administrative in nature.^^ longer cited the laws of 1790 and 1793. It appealed
vaguely
ers.
to the
It
damage caused by
bility
is
rules
Vague and
presage.
may
be,
The Court
its
growing
sense
acts
must be made
responsibility
responsible for
its
even while
was
different
It
from
that
formulate, of course, the distinction between the subjective responsibility for fault
The
notion
came
later.
simply because
** Sirey,
and that the ordinary courts lacked jurisdiction it is with this responsibility that they
1873, II, 153,
ADMINISTRATIVE ACTS
deal.
157
that of a
So
it
should be
when
the problem
is
is
service to
which sovereignty
not attached.
The
fundamental. It tends to rescue for the governmental courts all cases which concern governmental functions and this, whatever the character of the act or the department in which it arises. The Blanco case is thus the point of departure of
is
;
decision
whole evolution. The ordinary courts accepted it and refused to deal with cases where the responsibility of the state was concerned unless some definite statute gave them jurisdiction. Logic completed what chance had begun. Suits against communes,
a
departments, public
from
their service,
came before
There was
much
Court of Conflicts
to the
to the responsibility
communes.
The
However
administered, every
such service has the same essential character, and there is thus no reason to make any distinction of
jurisdiction.
That
is
why on February
recognised that
it
Court of
based on
Conflicts
The Feutry
M.
Teissier, as gov-
I^B
LAW
IN
was
from the departmental asylum of Court of Conflicts, after disagreement, decided, un-
der the presidency of M. Briand as Minister of Justice, in favour of administrative jurisdiction "on the ground that the claim attacks the organisation and
functioning of a service maintained at public cost the
appreciation of the faults of which cannot belong to
the ordinary courts."
The
that
it
the case
simple and sufficient reason for deciding that was administrative in nature was the fact dealt with the operation of a public service.
obviously be given where the
is
local
this
has been the effect of numerous decisions since 1908 of every kind of court.^*
VII
The
ment
business of administration
is
the law.
passed from
The
administration of
Revue de Droit
p.
2'Recueil, 1908, p. 208; Sirey, 1908, III, 98; Public, 1908, p. 266.
^*'Cf. also the
Fonscolombe
case,
1908; Recueil,
further
III,
ADMINISTRATIVE ACTS
the state
is
1^9
conducted under the control of administrative courts composed of administrative magistrates. Cognisant of the conditions under which it
is
state,
They
private citizens. In this way all administration is a matter of law and controlled by the courts. It is in
this service, above all, that the modern state becomes what the Germans call the Recl^taat. While this evolution is practically true of France, it is not confined to it. The movement can be paral-
leled in
Germany and
in Austria,
and
it is
perhaps
worth while
development.
sult,"
In Germany
its
Mayer.
"The
final re-
he
word
that
law
in
its
individual
sense."
"Our
has been made. though it has been hardly understood, on the development of German law. It is derived, like the plea to the Court of Cassation, from the ancien regime. Its value has been proved by a long history and it has been brought to a high stage of perfection. ... In place of this plea, German law provides the demand Mayer for nullification where the law is violated."
2=
where the plea of ultra vires This has had some influence, even
I,
210, 247.
l6o
LAW
IN
arrived at the point where authority could be negatived a doctrine which, as the next chapter will show, occupies an important place in French law. The different jurisprudence of the United States and
of
Yet
They
administrative activity.
ginning.
French influence
it is is
is
apparits
only at
be-
Such
control, however,
as yet
extremely
narrow.
been pointed out to us that in England and America every administrative act is subject to the control of the ordinary courts and this system has been urged upon France. This is a misIt has also
In reality so-called cases against the administration in England and America are simply cases against the individual administrations, and as Hauriou justly observes, "the defect is the absence of the two great methods of French administrative law: the annulment of administrative acts on the one hand and the claim of damages from a corporate administrative person on the other." ^^ To-day these methods begin to find their place in the common law. Special tribunals are being organised, or rather the ordinary courts are being given special powers, to deal with governmental cases,
statement of the issue.
either
2
where
responsibility
is
ADMINISTRATIVE ACTS
legality of
i6l
into
is
called
question.
In England the ordinances of the central government can always be nullified by the courts as ultra vires when they go beyond the legislative delegation from which they are derived. The same is true of local regulations. Recent legislation has sometimes given to administrative bodies a real jurisdiction for
particular objects.
This
is
A
all
with
made
At
first
the deci-
had not the force of law. They which Congress had to approve. Later the Court of Claims became a real court, the decisions of which became binding upon the Secretary of the Treasury; and appeal from its decisions went to the Supreme Court. complicated system of writs enables the Ameribasis of bills
can courts to annul the administrative decisions, but they lack the power to examine questions of fact or timeliness already determined in those writs by the
administrative
authority.
"The
principle
applies
whatever be the rank or character of the official to be However humble he be, once he has a controlled.
of
Cf. Dicey,
xii,
[and
Growth
l62
LAW
IN
protected from
be,
he must
power
of the administration.
Court of Quarter Sessions or before the County Courts which have almost ever5rwhere replaced them. In New York, for example, any interested person may protest before the County Court against decisions of the Superintendent of Charities relative to a
home
So has been slowly organised the legal protection of the individual against the state. It is an incomplete evolution as yet both in the United States and England; the check on power has not yet reached maturity. The idea of discretion is still powerful in
administrative action.
ter
I shall
freed
itself
tion.
On
to the task
him by
the
French
system.^*
in the
The
United
Goodnow,
Principles of Administrative
Law
States, p. 322.
^*
sense.
ADMINISTRATIVE ACTS
American
courts are,
1163
writes Professor Goodnow,^" "the courts have generally explained that they will not exercise their juris-
diction
conflict
when to do so would bring them into direct with the chief executive." There is no doubt on this head where the president is concerned; and the same appears true of the Governors of the different states. This progressive evolution of French administrative law was strikingly affirmed at the Congress of Administrative Sciences held at Brussels in August, 1 910. It became there apparent that no modern public law so completely protects the private citizen as the French. France leads the way in private as in public law. In private law, the cause is the antiquity of its code which after more than a century, allows its lawyers and its courts to free themselves from the bonds of too narrow an interpretation. In public law the cause is twofold. In the first place, In the second place a Council it has no code at all. of State, in origin and procedure an administrative court, in independence and impartiality, is like an ordinary court. The two elements have combined to create a body of law providing the fullest protection
to the private citizen.'^
80
'^
Op.
cit., p.
323.
[Professor Dicey's citation of De Tocqueville's adverse opinCEuvres Completes, I, 17+-5. L'Ancien ion is here of interest. Regime et la Revolution, p. 81.]
CHAPTER yi
LAW
Administrative law
is,
The
part
it
The
which
is
number
is
of rights
We
to say,
property.
The
state
it
rights; or at least
In such a
sys-
Administrative law
tally gives rise to the question as to
165
attacked by the
state, in its
administrative activity,
beyond
its
legal limits.
Administrative law is thus exclusively subjective. For the government, the question it raises is the limit
of sovereignty.
is
whether the subjective rights of liberty and propEvery case, that is to say,
the
citizen,
and must
This is what was meant by Ducrocq when other. he said that in order to have a natural administrative law "the case must arise through an administrative act in the technical sense and the claim based upon it must arise from the violation of a right and not simply through the violation of an interest." ^ No one can read the decisions of the Council of State without seeing that for many years that court has given two kinds of decisions, to all seeming enIn some, the Council annuls the adtirely different. In others ministrative act or refuses the annulment. annulment accompanied by the condemnathere is
tion of penalties against a private citizen or the gov-
ernment.
If there are
For
'^
we have
II, p. 17.
distinguished, in
l66
LAW
IN
and a case where an ultra vires act is simply annulled. This terminology has behind it the conseIn the 9th Art. of the Act of 1872 cration of statute. organising the Council of State of the Third Repub"The Council of State lic, it is enacted as follows
alties
:
to
decree of
which the
number.
grew
in
The Council
and on receiving Neverit only when no other remedy was possible. theless so just has been the number of such cases this latter argument has been abandoned. Its abandonment was necessary in order to determine the real distinction between ultra vires adminisDominated as it trative cases and the ordinary type. was by a subjective concept the idea that every case involves a right deduced from abstract justice the lawyers found this no easy task. They did not perceive that the growth of cases dealing with ultra vires acts a growth due to the pressure of facts and in some sort opposed to the desire of the court revealed a profound change of which they were blindly ignorant. Sovereignty, on the one hand, and individual
such a plea as subsidiary to the
ADMINISTRATIVE LAW
right,
I
167
in process of disappearance.
all that
on the plea of ultra vires in administrative law.^ But something must be said of the theory of M. Laf erriere whose book, as I have pointed out, marks an epoch in
the evolution of public law.^
He
distinguishes be-
tween cases of simple annulment and cases of comIn the first he argues the court plete jurisdiction. simply annuls or refuses to annul. In the second the court can pass on all questions of fact and law. The typical example of annulment is a case concerning
Four causes give rise to it: the plea of ultra vires. There may be violation of an enabling act, of a formal statute, abuse of power, or violation of a fundamental statute. In the last case the plea can only be made by the person who has directly suffered from Such a plea, moreover, is the violation of his right. always a subsidiary method.
But none of
tion?
this
is
in reality explained.
Why dis-
What
is
We
Why
sory?
cases,
No
is
reason
is
suggested.
Why,
in
certain
Why,
in other cases,
^ [C/. Aucoc, in Comptes Rendus de I'Acadeinie des Sciences Morales et Politiques, 1875; Laferriere, Traite (2nd ed.), II, 394560 ; Tournyol du Clos, Essai sur le recours pour exces de
pouvoir (1905).]
^Laferriere, Juridiction et Contentieux (2nd ed.), II, 394.
l68
LAW
IN
To
scrutinise the
to reveal
only uncertainty
and contradiction. In simple fact the decisions of the Council of State have become broader and more precise under the
pressure of practical needs.
is
The
no longer of secondary importance. It is not fundamental vsfhere a general council draws up a regular clause, even though the plaintifif may have made Any interested person, his plea against such choice. having merely a moral and indirect relation to the
act,
cessation of
its results.
The
plea
no longer aims
The Council
Service of any person having the necessary qualification for such office
This does not of course mean that any qualified lawyer who may protest against an irregular nomination to the Bench has himself to be nomiconcerned.*
nated.
is
use-
an-
swer.
Everything becomes clear once we eliminate We must replace it by the idea of subjective right. fundamental notion of modern law. We must the
*
The
cases are
numerous
p.
cf.
especially the
Lot-Molinier de-
cision, Recueil,
p.
1909,
p.
719.
ADMINISTRATIVE LAW
replace
it
169
by the concept of a social function, of a legal situation to which the idea of public service is
intimately bound.
The
only the
II
The
is
whether there
the extent of
tive act has
and
it
has
When
such a question
is
raised,
it is
and to measure the penalty. Its decision has then a merely relative and individual bearing parallel to the situation of which The plea can only be made by it is the expression. the person who claims to have benefited from the situation whose existence or extent is called into quesministrative courts to analyse
tion.
It
may
be,
on the other hand, that the only question is whether the administration has in
That
is
law
comes before an objective tribunal. The judge simply states whether the law has or has If he thinks it has not been, he not been violated. rejects the plea if he thinks it has, he annuls the procase
;
The
170
LAW
IN
tested act.
is
His decision
itself.
purely general.
The
act
ministration
case
is
The
as
as
general
the
statute
that
has
been
violated.
Such a plea
is
every administrative
the administration. of law;
work
of
we cannot annul
It
is
a fact.
Nor
is it
.admissible
but of knowing whether the new subjective situation destroys or modifies the old, and the person by whom the plea is made must be a party to the particular In other words, where the situation is subjecact. tive, the administrative law is personal also. The objective plea
is
possible only
when
the act
is
objective.
Such acts are numerous enough, since they include everything based on ordinance. From the material point of view, they are of course statutes; but from the point of view of formal theory they involve the plea of ultra vires because they derive from a government official. Merely administrative acts do not create a personal situation. There are acts which create either a purely objective legal problem or raise the question of capacity. Such acts are very frequent in public law and with the growth of the objective conception
;
their
number
is
continually increased.
clear ex-
ADMINISTRATIVE LAW
ample
is
171
This does
It does not
situation
we
with
all
that
it
entails
capacity,
A
Very
draws
tion
muthe
mayor has
These
general.
have
an objective character.
They
They
In
affect the
They
are acts of will and therefore cannot escape the control of the courts.
by any
ise
;
interested citizen.
The judge
he either annuls or refuses to annul, and his deis purely general in its bearing. Such objective administrative law, most clearly seen in the sphere of ultra vires acts, is the great and It to-day original creation of French jurisprudence.
cision
dominates
all
public law,
have now
to
show
its
172
LAW
IN
application
fits
service.
French law has specially organised certain objecA notable example is the case of electors, where the simple question is whether the procedure has been legal and where, if illegality results in antive pleas.
nulment, the result is obviously general. Similarly with the jurisdiction of the Court of Conflicts; the
only question for the court
cedure.
is
is
objective.
On
speak,
so to
synthesis
whole
ficial,
An
may
of ultra vires
legality.
is
its
The cost is a 60 centime stamp. No right invoked. The citizen is living under the regime
and law and where the government violates the law he has the right to demand judicial censure. Abuses, of course, must be prevented and the courts therefore demand that the intervener shows a special
of state
;
plea.
That
^
interest,
however,
may be
interest
Court of
his
commune
does not
Casanova
ADMINISTRATIVE LAW
make
as
173
may
of those
who
The
clearly
the case
where the Council of State deals with must either annul or refuse to annul the act concerned. It cannot merely condemn the act. Sometimes it may send the parties before a minister;
it is
but that
Annullment is perfectly general and binding upon citizen and government alike. I said above that there was a moment when jurisprudence appeared to admit several methods of
conform
to the verdict of the courts.
pleading
against
administrative
acts
incapacity,
reception of
wrong
and
it
its
the plea.
only question
To-day no such distinction is made. The is whether any statute whatever has
been violated.
The
question
is
The
which a plea is received are always the same. Sometimes it still seems as though the distinction is drawn between incapacity, violation of statute, and abuse of power; but this is rather
conditions under
the terminology of custom than the admission of
reality.'
The
''
may
be
made
p.
against any
Lot-Molinier
429; Tournyol
du
Clos, op.
174
LAW
IN
with the exception of parliament, the two chambers, the courts and judicial offices. The reason for
their exception
is
of course obvious.
cer can naturally be taken only before an institution with the same purpose. Were it otherwise, we should violate the unbreakable principle that justice and administration must be kept separate. Why except the decisions of parliament or of one of its parts? Doubtless a time will come, perhaps not distant, when the exception will not be made but that evolution has not yet been accomplished. The
;
is
the persistence
still
of the old
idea that parliament and the chambers directly express the sovereign will of the nation.
I pointed out
by legal action; a the high court will take cognisance of the legality of any decision coming from a single chamber or from an office of that chamber. So far as the president is concerned, his acts can always be attacked on the ground of their ultra vires Undoubtedly since 1875 the character of character. this office has undergone a profound change.^ While
of controlling statutes
fortiori the day will
come when
[C/. Jeze,
La
H.
Leyret,
Le
President de la Republique
(1912).]
ADMINISTRATIVE LAW
this
175
noted in passing, its importance can only be mentioned, because it belongs rather to politics
may be
rated by the constitutions of 1791 and 1848 the chief of the state was clothed with executive power in its
was thus the true incarnation of one constitutional element of sovereignty. He had a
representative character in the field of the executive
field of legisla-
His
acts
beyond the scope of administrative law. Undoubtedly those who constructed the constitution of 1875 had the same conception in mind. This is clearly shown by the Septennial Law, "which confided for seven years executive power to Marshal MacMahon." Successive presidents were to have the same character as he. Like him, they were to have
that part of sovereignty
we
power.
They were
Since 1875 the president has progressively lost his Little by little he has ceased to be a rep-
He has been resentative of national sovereignty. simply an administrative agent, a high agent, indeed, of the administrative hierarchy, but still no more than an agent.' As a result, all his acts can, as a matter of principle, be attacked on the ground of their
'
is,
however,
notable.]
176
LAW
IN
This change is not connected with the disappearance of the imperialist notion of sovereignty. That notion might have remained unbroken even though the character of the presidency had changed. The two evolutions are parallel but independent. The principle cause of the change is to be found in the origin of the office. From the fact that he is elected by parliament it has been concluded that the latter alone is a representative organ concentrating in itself all sovereignty, and it has been suggested that since it makes the president, he can be
ultra vires character.
It
is
in this
way
that
with the general evolution of public law that no act of his is beyond the reach of justice. There are, however, two classes of acts still beyond In the first place acts conthe reach of the courts.
nected with the constitutional relation of the chambers of the government, as for example the convocation or
parliamentary
ral colleges,
with
all of these,
The government,
courts
action to the
would
impossible.
in
ADMINISTRATIVE LAW
\'^^
by the constitution "the right to judge the eligibility " of its members and the legality of their election." To recognise in the Council of State a power to pass upon the regularity of the decree would be to permit its encroachment upon the power of the Chambers. Thus, the Council of State has itself decided in a recent decision.
191 2, fixing
Belfort.
It rejected the plea of a
2,
May
"The
assemblies
having the
are alone
members
competent
upon
which
"
to say, acts con-
The
is
as constant as it is
continuous.
No
Very notably by its decision of Council of State has decided that the pri1904, the vate citizen cannot make use of administrative law
head, be received.
against the French state in the relation to the declara-
annexing Madagascar.^^ The reason of this is Diplomatic acts directly interest the perfectly clear.
tion
national security.
Government
loLaw
"Le
Temps, August
Revue de Droit
178
LAW
IN
to a litigious criticism.
ates
the
management
of
foreign governments.
cised
clearly
all
Taken
remains
tions.
as the
governing principle of
IV
act of a presi-
ground of ultra vires. This is a great step forward of which the importance can hardly be overestimated.
It
is
made
that
to say ordinances,
made on
islator
with the advice of the Council of State, could This is no longer the case.
In its decision of December 6, 1907, the Council of State expressly recognised that the plea is acceptable.
Its
language
is
haps makes the decision rather of wider bearing than the contrary. On the other hand, the consequences of the following passage are important. "Considering that conformably to the terms of Art. 9 of the
Act
of
May 4,
1872, plea
may be made
ADMINISTRATIVE LAW
ment
vires
;
179
of administrative acts
on the ground of ultra considering further that those acts of the head
of the state
are per-
formed by virtue of legislative delegation and consequently imply the exercise to the full extent of the powers conferred by the legislature on the government in the particular case; nevertheless, since they are derived from administrative authority, they are
subject to the action foreseen in Art.
above.
."
" which
9 as cited
The
governmental act
Here is involved in this the abolition of an idea which had long in France the force of a dogma and It abolishes what are called in L is still law abroad. French governmental acts and in Germany Staatsnotrecht or Notverordnungen.^*
By
meant
acts
which, either by
open to the plea of ultra vires, but are declared beyond the law by reason of the political end
origin, are
they are intended to serve. The phrase "political end" is used in its most ordinary sense. The word
"political" has indeed two senses:
it
may mean
its
the
happiness
and prosperity; that is its highest and noblest sense. It may also mean, and that is its ordinary acceptation,
"Recueil, 1907,
p. 797.
^* Jellinek,
p.
913,
cf.
W.
Harrison-
i8o
LAW
IN THE
MODERN STATE
and of remaining there determined by a political end Acts were placed beyond the power of law because they were usually made to keep a government in office. It was raison d'Etat under another name. For France this is happily no longer true and its disappearance is due to the impartial and independent jurisprudence of the Court of Conflicts and the Council of State. It has been made possible by the disappearance of the imperialist theory of sovthe art of obtaining office
after arrival.
;
have been so intertwined as and effect. The doctrine, however, was long defended in France by high authority. It is customary to cite the well-known declaration of M. Vivien, the reporter of the organic law of 1849 of the Council of "There are rights," he said, "the violation of State which cannot give rise to an action in the courts. In a representative government, where the principle of responsibility obtains, there are circumstances where a great public necessity may compel ministers to take measures harmful to private rights. For such measures they must answer to political authority. To render them subject to the administrative courts would be to paralyse an action exercised for the common inereignty.
facts
The two
to be reciprocally cause
in the state a
new power
a skillful
other."
its
It
is
enough.
It
ADMINISTRATIVE LAW
Dufour " and Batbie."
a striking application of
i8i
The Council
it
of State
made
Due d'Aumale
of the Interior.
was
deter-
mined by
political reasons."
Nine years
later,
under Appeal of
itself incompehear the action taken by the Prince Napoleon against the Minister of the Interior and the Prefect of Police for the issuance and enforcement of the decree of expulsion against him.^* This was the last time that the French court invoked so arbitrary and
no longer a ground of such action. Implicitly, indeed, but none the less clearly, the Court of Conflicts has rejected this doctrine upon the Jules Ferry decree against the religious congreIn his argument M. Ronjat for the governgations. ment had urged that "it may be suggested that acts done by public authority are government acts beyond Did such acts exthe competence of the courts. ist, this decree would be one of them. ... If you
Political motive
is
. .
Public, IV, 600. Droit Administratif, VII, 401. [Cf. a full discussion and Bibliography in M. Le Courtois, Theorie des Actes de Gouveme-
Droit
"
rsent, 1899.]
"Recueil, 1867,
p.
472.
"
l82
LAW
IN
to
think that the act has not the character thus indicated,
you have
comes
or
if it
nals."
The
The Court
prevent the execution of this administrative act . think that the measure taken against if the petitioners
.
them
is
unauthorised by
statute,
its
annullment."
^*
The Court
The Council
basis of the
The Minister
of
War, on
the
law of June 22, 1886, relating to members of the families who have reigned in France, had struck the names of certain members of the House of Orleans, and of Prince Murat, from the Army list. They combined to sue him, and the Minister of War asked that the rejection of their plea on the ground that political problems were involved. The Council rejected his demand. It pointed out "that it is clear from the very text of the ministerial decision that it was taken in the application of Art. 9 of the Act of June 22, 1886. It was thus taken in the exercise of powers given to the Minister to ensure the execution of the laws. Decisions made for that end may be brought before the Council of State." The Coun"Sirey, 1881, III, 85.
Administrative law
cil rejected
183
the plea of the Prince of Orleans but decided in favour of Prince Murat.'" Several years later this decision was confirmed by
the Court of Conflicts^
judicial capacity.
It decided, in three separate
judgments, that political motives do not invalidate The problem involved was the
seizure by the prefects, acting on governmental in-
Code
and
portraits of the
Comte de
is
Paris.^^
Despite these
ually reappears.
It
withdrawal of its acts from the control of the courts. In 191 1 the Court of Conflicts had again to condemn this effort. It asserted judicial power to pass upon a suit brought against the Minister of France to Haiti, who had, after a series of incidents, refused to marry two French citizens. The Court of Conflicts decided that while diplomatic acts are without the category of ordinary law, acts merely inspired by diplomatic reasons but
to desire the
ernment
The
ity is
it
matters
little
when,
as in
diplomatic authoris
not
prohibited by local legislation, that his refusal should have been inspired by political motives." ^^ The im^oSirey, 1889, III, 29.
"Recueil, 1911,
p.
400;
184
LAW
IN
opinion of the
more
es-
The
method by which
It
administrato
tive action
important
It is
remember
that
not based on
a subjective indi-
based
on the defence of an objective law, of a law of public Each citizen is, so to speak, an agent of government. He aids in the protection of law. He asks from the courts the annulment of illegalities. It
is,
it is
which secures
is
however,
The
citizen
armed
The
case
may
not profit
is
him by
its
sult
because
its
real
purpose
entirely objective in
Such an institution is obviously entirely social in character and shows the great change attendant on the traditional conceptions.
character.
Modern
legal action.
no longer provide a bar to But public law has gone further still.
Administrative law
It has recognised that the presence in
185"
an adminis-
act
with
is
nullity.
Just as there
state so there is
no longer
that
is not beyond the reach of law. can be attacked for lack of capacity or incorrectness of form. Formerly when such an act was legally done by a competent official it could not be attacked, whatever the end for which it was made. No tribunal could examine that end, not even the Council of State nor could the act be annulled be-
A discretionary act
It
itself
was
illegal.
Most administrative acts possess this character, and was possible to speak with justice of the discretionary power of the administration. In the books on administrative law thirty years ago this phrase was found practically on every page. In many of the decisions of that time the action of ultra vires found These acts correno place for similar reasons. what the Germans call acts of free intersponded to pretation about which there is still much controit
versy.^^
longer
In France to-day the discretionary act no The Council of State can always take account of the purpose by which an act is determined and annul it if it thinks that the administration, however formally capable, has pursued an end other than
exists.
the law
^^
had
in
view
212; Laun,
Das
l86
LAW
IN
Thus we have what is called an abuse of power. At bottom it is simply an ultra vires act and the plea is of that nature. The official violates the enabling statute when he does something outside his powers
or
he does something for a purpose he has no right The phrase "abuse of power" is a felicitous one because it clearly shows the way in which
if
to pursue.
law
is
made
clear.
is
The working
due
also to the
due
to
It is
from M.
memAucoc
under the Second Empire to the eminent men who to-day occupy the position have been distinguished. But it is worth while pointing out that the theory of the abuse of powers is only the practical working out of the idea of purpose which each day changes more and more the institutions of private and public law. In private law, while the autonomy of individual will
it
order
out
by what purpose the individual was moved; it was sufficient that he willed something, that he had the capacity to will. The two elements of a legal act was the capacity to will and the object willed.^* Similarly in public law, while one attached the effect of
an administrative act only to the right of sovereignty,
it
had only
to
valid.
2*
With
ADMINISTRATIVE LAW
187
element of purpose became essential. Validity no longer depended on the emanation of the act from a competent official. It was necessary also that the act of the latter should be determined by the end the statute had in view when it gave him his powers. This end never changes; it is always the adequate operation of the service with which the official is
connected.
This makes plain why discretionary acts exist no longer. However wide may be the powers of an administration, the private citizen
into
its
may
always enquire
motives.
The Council
its
of State
may
dissatisfaction
may
lead
to
is
the
annulment of
Whether
the official
or the humblest civil servant makes no difference. The character of the act is unimportant. The question of motive brings every act of every official
under
it is
yet another
as a basis
This evolution of course was not accomIts beginning goes back to the plished in a day. beginning of the Second Empire, and the earliest
cases
They
traffic in
front of stations.
had
and good order of the traffic but the interest of the customer he wished to benefit. The Council of State
l88
LAW
IN
power. In 1872, again, the match monopoly that had been established by statute involved the payment by the state of compensation to certain suppressed
factories.
virtue of the
in 18 10,
which gave
These decisions were annulled on the same ground. From such meagre beginnings the concept had undergone a wide expansion in French public
houses.
law.
From
some
which
the Council of
It
was
commune.
It is thus an abuse of power to commit an act which, however formally competent, serves a purpose that the statute invoked did not have in
view.^^
of State annulled a decision of GenAndre, the Minister of War, who excluded a grain dealer from participation from contracts issued by the war office on the ground that his political and religious opinions were disagreeable to the Miniseral
^^Recueil, 1902, p. 55; Sirey, 1903, III, p. 113.
The Council
Administrative law
ter.^*
1B9
It
was held
were
to
without relation either to the contract involved or the merchant's professional capacity.
control given to
For some years the prefects, using the power of them by the Act of 1884, have controlled those municipal councils whose political and religious tendencies displease them. Such considerations are of course entirely foreign to the adminis-
tration of the
has
commune. Every time the problem come before the Council of State, that body has
The
Prefect of
Doubs
bytery.
desired to force a
commune
He therefore declared that he would not approve certain proceedings of the Council until the presbytery had been leased conformably to the law of The decision was ruthlessly annulled. It was 1907. pointed out that the prefect had used his powers for ends quite alien from those for which they were
It
given.^'
both delay the list of candidates in the examination of his department, or even use his discretion in taking out the name of the candidate. In 1851 the Council
of State actually held that a decision as being outside
it
its
The
may Court has now and that the idea of discretion no longer holds. The
held that the plea
^'Recueil, 1905, p. 757. ^^Recueil, 1911, p. 289; Sirey, 1912, III, 41.
be received
I90
LAW
IN
attitude of the
^ note
M.
Heilbronner.
cations
demanded by law, can the Minister," he asks, "exclude him from his candidacy on the ground that
to a special class of citizens?"
he belongs
The
ques-
who, being a priest, had examination for a Fellowbeen excluded from the ship in the University in Philosophy. Though the
Council of State upheld the decision,
cause
it
it
held that
it
was because, havthought they were legal and tended to serve only the adequate functioning of the university. It pointed out that this fellowship imnot only a university status but also fitness to plies teach in the secondary schools of the state. "In retives of the ministerial action.
it
The governmental
gives us
is
its
explanation
of
the
decision
connotation.
"The theory
of discretion
to-day abandoned.
law
is
to serve."
The
and
which
restricted secondary
The
note clearly
Revue de Droit
ADMINISTRATIVE LAW
191
points out that the decision would be different if higher education were concerned, since these posi-
upon the capacity of the candidate. In conclusion one or two decisions annulling the action of municipalities for the abuse of power may be mentioned. The mayor of Denin was in the habit
tions are based
He
dismissed a policeman
its
complaint against
landlord.
The
In these decisions
it is
Heretofore the plaintiff, to be successful, had to furnish direct and positive proof that the official had been actuated by
cern a
extension of this plea.
new
motives foreign to the service. In the religious cases cited above it seems to have been sufficient for the
plaintiff to establish that the reason given
by the poupon which mayoral action must be based, did lice not exist in fact. That does not change in any way the nature of the plea of abuse of power, but it makes it wider and this extension enlarges the control of the
courts over business administration.^"
VI
lation
This evolution, however, is not yet complete. Viomay involve condemnation of the administra^Recueil, 1900, p. 617.
^0
192
LAW
IN THE
;
MODERN STATE
to
tive acts
compelling the government to execute the decision He must be able to prevent the repeof the tribunal. He must be able to compel the adtition of the act.
ministration to conform to the verdict of the court,
to reinvest, for
example, an
official
illegally dismissed
when
decided.
the
Theoretically, there
power
theoretically,
the government
subject
It
this
means of
"The
ab-
made
a point of administra-
honor spontaneously to obey." He points out the combined action of decentralisation and the electoral regime this administrative honor no longer exists. The government departments deceive and defend themselves against the courts which embarrass them in their political schemes. This bad faith is not confined to the municipalities; it is found also in the prefectures which can no longer be relied on to call back a municipality to legal paths. This same bad will has wormed its way into the government departments. In an admirable and just phrase ministers are said to boycott the Council of
tive
how "under
State.
It
is
ADMINISTRATIVE LAW
it
193
in revolt
is
his department.
The department
is
perhaps too black. In most cases the administration spontaneously submits to the will of the court, whether to obtain a note of credit from parliament to pay damages, or to reinstate an official irregularly suspended or dismissed. There is, however, sometimes resistance. The temper of politics makes itself felt with odious results. The extension of the courts' control provokes administrative resistance. It is perhaps natural enough; for every new
is
This picture
way against the conservatism of existing facts. The politicalisation of the government is in reality only a secondary cause. The fundamental reason is the reaction of new ideas upon a situation which ambiguity has tended to make privsocial force has to
make
its
ileged.
The Council
its
decisions often
show
attempt to substitute itself for the active executive power. It corrects the irregular decision but it does not substitute its own decision for it. It remains a
When,
for
exam-
law of weekly rest, it anwithout according the permission that the nuls the act law demands. It takes account of a possible refusal
to
obey the law by the terms of its decision. "Send before the prefect of the department and give him
194
LAW
IN
the authorisation to
to the administration is
now very
on the weekly closing law. The Council has not yet dared expressly to annul the decision by which a prefect has refused to enter upon a communal budget some necessary expense but it has sent the interested party to the Minister of the Interior with an injunction to the latter to secure this end directly from the department.'^ This is not real constraint, and it must
;
moment
a direct refusal of
countered directly or indirectly by the courts. case, in itself unimportant, is here of interest because it shows in this connection how the mayor of the little
in
By Art. 102 of the Act mayor cannot dismiss a rural po5, liceman, but he can suspend him for a month. The mayor of Cotignac, to evade the law, suspended a policeman for a month and renewed the suspension every month. This was of course equivalent to a
tive council of the country.
1884, a
dismissal,
and
decision
mayoral decrees. The annulment and continued his suspension. In 1910 the Council of State annulled seven new decrees by the mayor. This could obviously continue without
^^Recueil, 1906, p. 880; Sirey, 1907, III, 17.
ADMINISTRATIVE LAW
limit;
195
and
if
mayor
the courts
trol/*
our public law. The only can be filled is by enforcing the per-
gap
in
It
is
the ab-
It will
be seen below
how
acts
and private
which
sibilit}'
of the official.
An
act
is
personal
when
the
motive of the official's act or his refusal to act is unconnected with the operation of his post. Clearly a civil servant who knowingly refuses to obey the decision of a court
his service.
is
Every judgment is presumed to conform to the law. Every law is founded on the interests of the public service. To show contempt of the decision of the court is to show knowingly a contempt of the department of the service and so to commit a
personal fault.
no doubt that the responsibility of a recalcitrant official will be secured in the future. The Cotignac policeman could certainly have won a peris
There
mayor but
;
the procedure, as
Sirey,
p.
606;
1911, III,
[It
is
196
LAW
IN
I shall
costly.
show below,
The ordinary
That makes
He
is
mis-
taken because he
bound
to succeed.
But he would
perhaps hesitate less if he could go to the Council of State and if his plea, like the plea of ultra vires, involved no other expense than that of registration.
This path,
it is
opened up
in the future.'"
=
p. 51
CHAPTER
VII
RESPONSIBILITY
Is
THE
done in
its
name?
to reveal a profound change in public law. The men of the Revolution w^ould have been astonished at the demand. The to ask the question
is
Merely
in
none of these
is
there
There
power.
is
af-
They
No
and are
state.
To-day
state responsibility
We
I
have
The
texts
responsibility of
officials are
The
principle
was
in
198
LAW
IN
demand
public
from every
official."
In the preamble
it is
under
his authority
by
his ministers
and other
is
;
responsible agents."
The same
principle
quite
and
it
When
in
re-
was announced "on the responsibility of ministers and other agents of the executive power." The statute, however, was promulgated without being passed, although long discussions filled the entire session of
vised in a sense
liberal,
deemed
a statute
'
Declaration of 1793,
arts.
24 and 31;
55, 71-3, 83; Declaration of the Year, III, art. 22; Constit. of
RESPONSIBILITY
1835.
199
In 1848 the principle was formulated in a still more wide and general fashion. "The President of the Republic and ministers and officials exercising a part of sovereign
far as each
is
mean
all
to
;
thoughts
many
public
officials.
No
dogma that the state was not and could not be responsible. That was logical enough. Close analysis suggests that sovereignty and responsibility are mutually exevident and tangible
clusive notions.
ited.
limits
vidual.
and reciprocally is limited by the right of the indiThese reciprocal limitations are regulated, and can only be regulated, by statute which, expressing the general will, is derived from sovereignty itAt bottom, thereself and forms the national law. fore, the sovereign state creates law and the idea of
responsibility
is
thus excluded.
law.
That which
creates
it.
law by
its
sovereign will
Just as in an absolute
is
monir-
therefore
200
LAW
IN
no more than the nation sovereignly organised, can do no wrong and escapes responsibility.
responsible, so the democratic state,
The
Nor
is
can
it
conform
to
no question of responsibility
it
at all.
be executed.
state.
substitutes his
It
is
The violation is that of the official who own will for the will of the sovereign the official, therefore, who is alone re-
sponsible.
It
is
from Forced to
it
is
declare that
a sovereign
it
cannot be responsible
unless
its
when
acts as
power
This
is
the attitude of
M.
Berthelemy.
;
M.
Teissier,
is still
in an able work,^
is less
definite
dominated
itself in its
bjr
where the
shows
sibility
cannot be raised.
to pri-
La
RESPONSIBILITY
State before
201
ground
of responsibility."
interdependent ideas.
sovereign capacity.
principle
of
That
is
clearly affirmed
where
acts in
where
has
it
That
is
the
irresponsibility
limits.
Where is the line to be drawn? How can we tell when we are dealing with a sovereign act and when
not?
by definition a sovereign person, it must always be a sovereign person, and if sovereignty implies irresponsibility, it must be irresponsible also. It can hardly have garments suited to
If the state
is
admitted that the state it may on occasion be non-sovereign but if on occasion it may be nonI shall show sovereign, it is in fact never sovereign.
It thus follows that if
it is
may on
occasion be responsible,
;
is
and
it
in the affirmative.
And
useful to
remember
law there was one lacuna. The Declaration of the Rights of Man had proclaimed private property inviolate, it had decided
articulated imperialist system of that "no one can be deprived of
it
save
it
when
a legally
and then only declared public necessity on condition of fair and pre-arranged compensa-
demands
202
tion."
'
LAW
IN
Here was
on the principle of
state.
It
is
easily
The
more
they owned. They admitted that sovereignty was a dogma; but the rights of property were a dogma not
less
fundamental.
vidual sovereignty;
state
they had to decide which would be successful, and they decided in favour of the right of property. The fact that every member of the Constituent Assembly was in some degree a landed proprietor is in
part at least the explanation of this attitude.
private property
of the state
is is
When
recognised.
little later
the whole
procedure was organised to secure expropriation. The principle had long been favoured by the courts which gave compensation to the landowners for every
direct expropriation.
was approved by administrative jurisprudence, which gave liberal compensation for damage to private property caused by the erection of public works and that where no illegality or fault could be argued. This attitude was not based on the idea of general
It
state-responsibility but
property.
It nevertheless
Art. 17,
RESPONSIBILITY
group a burden heavier than community at large.
II
it
203
accompanied always by the idea of fault. A ^ule, that is to say, is violated if it is a moral rule, it implies a moral responsibility; if a rule of law, a legal responsibility. The ideas of responsibility and of fault demand, as is clear, the existence of a conbility
;
Conscious violation of a
rule of
law by
of the person endowed with that will. Such is the metaphysic of the ordinary concept of responsibility. Clearly it makes the problem one of ascription. It was so understood in the individualist system of Penal infracthe penal and civil codes of France.
tion
is
free will,
person to
ticle
whom this
violation
is
1382 of the Code Napoleon formulates the prinMoreover, every perciple of civil responsibility. son is declared responsible not only for the damage
caused by his
own
he ought to answer or for persons whom he had under his keeping; the reason for which is that he is presumed to be at fault when there is bad choice
whom
or bad surveillance.
To
204
terms
LAW
is
IN
to picture a state
conscious will
a legal rule
and
responsible
to
it.
be brought
ists
home
accepted this
when that violation can important school of jurconception. Upon it has been
An
which the
It
value
is
is
its
skilful logic.
are
organs
tinct
from
more than
;
the organs
The
from it. by its organs when they will and act it is the state which wills and acts. When they are at fault the fault is committed by and imputed to the state. The state is therefore directly and
state wills
and
acts
it.
This theory was created by Gierke for the corporate person in general and has been developed and applied to the state by Jellinek. It has been, with
some modifications, adopted in France by two jurists whose authority is deservedly great.* Nevertheless, it is no more than an ingenious fiction. It is necessary to reconcile the responsibility of the state with a legal system, where there can be responsibility only
*
Staatslehre (1905)
Michoud, Theorie de la Personnalite Morale (1906-9); Hauriou, Principes de Droit Public (1910), p. 659. [Maitland in his introduction to Gierke's Political Theories of the Middle Ages, and in his paper on Legal Personality and Moral
Personality in Vol. Ill of his collected papers, has also adopted this view.] For criticism, cf. Duguit, Traite, I, 307.
RESPONSIBILITY
where there
is
20^
Now
clear, in
state
no wise demand that the responsibility of the should be based upon the idea of fault. Tradi-
makes us still speak of state-fault, but in reality this only means that it is the funds of the state which pay for the damage involved in the opertion, doubtless,,
ation of
its
functions.
term does not yet exist we must do the best we can with what we have. The sense and bearing of the term can be given precision. It is not here urged that liability for fault has disappeared or ought soon to disappear from modern In the relation of individuals to individuals law. But the notion of fault there can be no other idea. is out of place where we deal with the interrelation of groups with groups; or groups with individuals. When we deal with an action which is individual, by reason of the will which sets it in motion or the end that it pursues, there can be an individual fault and
as a rule, if
not always,
it is
upon
ability
is
founded.^
But
act
is
The
by individual wills, but the end is collective. If a fault is committed by an agent of this collectivity, it is not imputable to that agent since it is for a collecNor is it imtive end that it has been committed.
[Cf.
Mr.
Justice Holmes,
in Vols.
IV
and
V of the
Harvard
Law
Review.]
206
LAW
IN
The
inated/
attached the whole
ity.
to
which
is
responsibil-
To
an
activity
which has
in
view
when
occasions prejudice to
group or individual. "Social life and thus legal life," as I have elsewhere written,' "is the product of a division of labour between individual and corporate activity. Groups have no wills and cannot therefore be responsible persons. But group activity is none
the less an important element of social activity.
task
it
The
ciety,
performs doubtless benefits the whole of sobut more particularly it is the members of a
If they so benefit,
it is
only
which
attaches to
groups."
from individual wills, but it is essentially collective in its end which is the organisation and management of public services. It follows that if the organisation or management of such a service should particularly prejudice a group
State activity emanates
;
Liability, in the
[For another interpretation, cf. Lasici, The Basis of Vicarious Yale Law Journal for November, 1916.]
p. 140.
RESPONSIBILITY
pair the
effect
207
damage
and
traceable.
If the
service
centralised
it falls
upon
of the state.
Such is the single idea upon which is based the whole law of state responsibility. It has already a rich jurisprudence, though it is only at the beginning of its evolution; even though it is sometimes falsified by the persistence of the idea of fault. It implies eo nomine the elimination of the idea of sovereignty.
When
responsibility
is
attached directly
and exclusively to the fact of service it entails the same consequences from whatever source it emanates. The idea must be thrown into such relief as makes plain an evolution of public law destructive of the
traditional notion of sovereign power.
Ill
make many
thinkers of emi-
nence
still
have already pointed out * that the persistence of this idea has prevented the plea of ultra vires being valid against acts of parliament.
Parliament.
Its
to
pose as interpreters of
words.
lar,
8
These are no more than But everywhere, and in France in particuwords are powerful things and it is these empty
;
Supra, chap,
iii,
iv
chap,
vi,
iii.
20B
LAW
IN
formulae which
parliament.
Yet to-day the question is clearly posed. It is discussed everywhere: in the chambers, in the The significance of courts, in the market place.
that discussion
is
obvious.
Let us suppose a private act of parliament voted and promulgated in the form of statute. It is a statBut if, as has been so long and ute of a formal kind. so unhesitatingly affirmed, parliament is invested
with a sovereignty which excludes the notion of state responsibility, it must be so whether its decision is individual or whether it makes a general regulation which is a statute in the material sense. To-day, however, it is admitted that a private decision of parliament
may
I have already mentioned the decisions of the Council of State which ordered the state to pay com-
with act of parliament of the grant promised to them in i860 by the French government in return for the
surrender of certain rent charges.
There
is,
of
we
have a decision of the two chambers on the budget. If parliament is truly sovereign its sovereignty must
be manifest in such a note not
law.
I
less
than in a formal
M.
Mil-
Recueil, 1896,
p.
533.
RESPONSIBILITY
lerand, then Minister of Public
ber,
209
in the
Works,
Cham-
He was
replying to a speech of
M. Jaures, who
urged that if the state was embarrassed in its negotiations with the Western Railway Company by the agreement of 1883 it had only to pass a statute which
would
obliterate
the
obligations
incurred.
The
Chamber
M.
Jaures.
;
when
is
In both these cases we have of course contract but sovereignty is concerned and when parliament
the living incarnation of sovereignty, contract
is
unimportant.
sponsible.
a
No
we
contract can
make
If
say with
M.
Laferriere "that
them no right to compensation," parliamentary action would then imply the irresponsibility of the state.
Let us now suppose that parliament passes a mateand formal statute; it passes a general regulation which is promulgated by the parliament. Does such
rial
Merely
to
ask the
is
When
a statute
been eagerly discussed in France and abroad. It was discussed in France in relation to the statute of 1909
210
LAW
IN
forbidding the use of white leadj in Switzerland in relation to the Federal law of 1910 forbidding the
use of a^bsinthe; in
lation to
Italy in 191
a public
in re-
monopoly.
The
question
it is
right;
in the
name
ought not
powers that the parliaments ask if they compensate by statute those who are speThus the faith of cially harmed by their action.
rior to their
to
own sovereignty is seriously shaken. That is a symptom of importance. We are to-day in a period of transition. The new law is in process of elaboration but we can already see the elements of the solution it will ofifer. If the new statute
legislatures
in
their
should prohibit certain acts till then lawful, because it considers them contrary and ideal right, it ought
not to compensate those
harmed by
its
prohibition.
to
answer has been made to this argument. So far, it has been said, what was done was done legally and the new law prohibits in the general interest;
surely, therefore,
it is
An
Such an
ar-
prevail.
the basis
book attempts to show, no longer of public law. But a material statformulation of a rule of right.
ute
is
none the
less the
RESPONSIBILITY
"Law,"
as I
211
wrote some years ago," "is not a mass of absolute and unchanging principles, but on the contrary a collection of rules
time.
It,
may at one time be legal even over a long space of time, but not always legal.,
abolishes it those who have profby the earlier legislation cannot complain of the change because the new law only registers the evolu-
Chamber and
In the long discussion in the Senate on the question of compensation M. Viviani, then Minister of Works, pointed out that the question was
not of the expropriation of an industry but simply of
the prohibition of a material recognised by science
essentially harmful.
as|
The employment
then had to
be forbidden by law. The minister did not invoke He sensthe supposed sovereignty of parliament. similar laws in Germany and Ausibly observed that comprdmise was' tria had given no compensation.
finally arrived at
the Sen-| between the ate by which the indemnity was granted but the pro-
Chamber and
hibition
was not
to
become
In the next year a statute was passed which prohibited the sale of
baby comforters.
I,
"Trait6 (1911),
l64.
212
LAW
IN THE
MODERN STATE
as
one of the
question
The
raised.
"We
must
make," said
M. Durand,
Cham-
by private citizens, in which case compensation is due, and between industries which the state prohibits simply in the general interest which in this case is
the protection of the race."
Parliament is actually considering bills which promanufacture and sale of absinthe which is incontestably harmful and an active agent in promoting alcoholism. If, as one must hope, these bills succeed, there is no reason to reserve compensation for the benefit of the manufacturers. They are pubhibit the
lic
poisoners
It ought,
to prohibit
from
Swiss act of
however, to be pointed out that a similar 1 910 has reserved compensation in the
following terms: "For the sake of fairness, partial compensation is assured to manufacturers and employers whose interests are directly and sensibly, harmed by the prohibition of absinthe." This formula shows that the Swiss legislature was not applying a general principle, but, out of fairness, granting
exceptional conditions.
damage
is
RESPONSIBILITY
the public organisation of the industry
is
213
intended.
It may then be truly urged that certain persons are unduly burdened and deserve compensation from the national exchequer. Legislation commits no fault in
to suffer
was not harmful it ought not by the process. French legislation has several times applied this Compensation was granted to the manufacidea. turers of matches when in 1872 that trade was made a public monopoly. The statute of 1904 on employment bureaux states in its first article that the public bureaux shall receive just compensation before supThe Italian Act of 191 2 which created a pression. Institute of Life Insurance refused, howNational ever, any compensation to persons or companies engaged in this enterprise. They were not however immediately suppressed but allowed under certain
conditions to continue their operations for ten years."
IV
principle of compensation is thus"a"Bsent from Can the courts grant compensation to the statutes. persons particularly prejudiced by the application of Clearly the question does not arise a new law?
The
where the
" Jeze,
cf.
Revue de Droit
is
in the Bulletin de Statistique et de legislation comItalian [For the actual history of the Italian law, paree 1912, p. 538.
Law
Hour
(1918),
p.
140f.]
214
LAW
IN THE
MODERN STATE
which are regarded as contrary to the public interest. But the question does most pressingly arise either where an industry becomes a state monopoly, or where a public service is so changed as to lay heavy burdens on some particular class in the community. For a long time the courts did not hesitate to reOn the ground fuse all compensation in such cases. that a statute, because it originates from parliament,
is
was not involved. The leading was the Du Chatellier decision of the Council of State in 1838, which refused all compensation to manufacturers involved in the Act of This act, for fixed purposes, prohibited the 1835. manufacture of certain tobacco, and the court held
bility of the state
general interest."
The
ilar decision in
in the
Goupy
1852 in the Ferrier case and in 1879 case. All compensation was refused
whose relation to the state was contractual and whose obligation became heavier as the reIn the Barbe case of 1883 it sult of new statutes. held that a contractor to the Ministry of War had no right to any compensation where a new tax was put on dynamite. These decisions aroused no discussion and received unanimous approval from lawyers. To-day this is no longer the case; or at least much
even
to those
make
it
the case.
It
is
RESPONSIBILITY
citizen,
215
unbound
to the state
spe-
compensation for the prejuwhich, for public purposes, prohibits some business in no sense contrary to But several times during the last the public interest. few years the Council of State has dealt with cases in which a private citizen, who had contracted with the state, asked compensation for some unnecessary cost
cial legal relation, asks
dice caused by a
new
statute
due
It
to statute.
is
act
an entirely personal character; where this statute in no sense modifies the contractual situation but leaves untouched the existing obligations; when to execute them new and unexpected costs are incurred; does the state owe compensation? For thirty years the question was not raised. To-day it arouses vehement
discussion.
early as 1903, as the form of the decision shows, the Council of State had, only after much hesitation, refused compensation to the referees of prison labour
As
who invoked
the injury they had suffered by the staton conditional liberation of 1891 on inutes of 1885 crease or diminution of penalties and of 1892 on preventive imprisonment." This hesitation is still more clear in the Noire and Baysac case, where a state contractor claimed damages because the Work
"RcQueil, 1903,
p.
306,
2l6
LAW
IN
Accident Laws of 1898 increased the burdens of his M. Tardieu, then government counsel, wrote a long and learned brief tending, not without hesitation, to reject the demand because of the entirely impersonal character of the statute and the Council of State decided in similar fashion. The time has passed when such demands may be rejected by the simple invocation of sovereignty.
obligations."
;
The
legislator
change the operation of a public service private hands. I have shown above that the government is in law obliged to assure the adequate operation of every public service and it is in consequence of this duty that they can, unilaterally, by ordinance or legislation, change the principles on which such a service, even when in private hands, can be managed. This makes plain how the question of state
;
which managed by
responsibility arises
when
It
is
a statute, so passed,
makes
more onerous.
is
may be
explained,
it
matters
little.
The
is
es-
in legal evolution
the
It
Works
The
20.
RESPONSIBILITY
result of
it
217
principles on
to
was to modify on an important point the which privately managed railroads are be regulated. "Each time," wrote the Minister,
the prejudice."
The
"that the Council of State shall decide on claims of compensation by the railroads arising out of the present statute ;" and even without the text the companies would certainly have led a campaign for compensation. M. Berthet, moreover, who reported the act
to the
Chamber,
question of capacity.
nor conIt
made by
the
com-
panies."
The same question is raised in a particularly interesting way by the laws of 1909 and 1910 on pensions
of
which the
latter
was
retroactive in
character.
which Here, clearly, was modified the condition of service to the detriment of the private companies holding government concesNobody doubted the legitimacy of their acsions.
a legislative
regulation
but nobody doubted also that if the companies could establish a causal relation between the new stattion
;
2l8
LAW
IN
that prin-
in the state.
is
It is a
in process of
formation.
or-
ganised,
can take
all
But once such steps result in increased burdens on any goods within the state, the national exchequer must pay. The responsibility of the state in its legislative aspect
is
eral system."
V
It is in the realm of acts of a judicial kind performed by civil servants that the evolution of public law toward the recognition of responsibility has least advanced. In France, and abroad, it is only in rare
What
is
One might
many
^*
Of
There
now an abundant
literature
state-responsibility.
La
Responsabilite de
la Puissance Publique
(1908); Tirard, La Responsabilite de la Puissance Publique (1908) de Roux, La Responsabilite de I'Etat (1909) Despax, La Responsabilite de I'Etat (1909) Marcq, La Respwnsabilite de la Puissance Publique (1911) [and for England ef. E. Barker in Political Quarterly, Vol. 1, No. 2, and Laski, in Harv. L. Rev., Vol. XXXH, No. 5].
;
RESPONSIBILITY
219
course in the constitutions of 1791 of the year III and of 1848 the judiciary formed a third power equal to
but independent of the others and like them expressing the sovereign will of the
ity
state.
That
responsibil-
was never in question where the act concerned emanated from the legislature, the executive, or the judiciary. But if to-day we still speak of judicial There is power, it is only by customary usage. neither written law nor political doctrine which admits the existence of a judicial power in the sense of Like administrative officials, judicial officers 1791. are simply officers who act. The method of their
nomination, their capacity, their status, may differ from those of administrative officials but at bottom
;
the
two
It follows that if
we
unreservedly admit the responsibility of the state for the acts of the administrative officials, the same must
be true of judicial officers. The reason of the parity is not, however, inexplicable.
dis-
In the French system, the judicial authority has alone capacity to pass upon criminal trials and every
which arises from the relations of private But its power does not end there. It may citizens. also decide every case where administrative law is not involved which directly concerns liberty or property.
civil case
are within
its
its
distinguish between
dictional
We
is
power; and
it is
thus that
explained
why
220
LAW
IN
the recognition of state responsibility for judicial action has hardly begun.^'
The
obstacle
is
force of legal
and
A judi-
by assuring legal
conflict arises,
Where
business
to say in
what
consists the
measures
to
imposed on every citizen. If the partners concerned could demand compensation, for any reason, on the question that had been judged, the whole problem would be re-opened. That is socially impossible, because it would open up a permanent source of disorder. It has sometimes been urged that the state ought to be responsible where a prisoner, condemned in an inferior court, is acquitted on appeal, or where the
definitely
plaintiff in error
'^
is
It
On
(
Jeze,
Revue de Droit
[Cf. also Duguit,
Public
1909)
p.
661
Duguit, Traite,
;
260f.
Vol. XII,
p.
140.]
RESPONSIBILITY
221
has been urged that in such a case the principle of finality does not exclude the principle of responsibility.
That
is
true enough.
become
It escapes responsibility
because in a total view of things the function of jus tice is adequately performed. There is no ground
for complaint except against the possible personal
fault of the judges in the court below.
That might
be held to imply their responsibility, but that is already a different question. For long this irresponsibility knew no exception, butin 1895 the act dealing
with criminal appeals which modified Article 446 of the Code of Criminal Instruction introduced one. "The decision of the Court of Appeal establishing the innocence of the accused may, at his request, grant him damages for the prejudice caused to him by his conviction. These damages will be paid by the state save where the appeal is against private persons."
The
badly performed by condemning definitely an innocent person. Whether there is fault or no in the judicial officer does not matter, the fundamental fact is The national exchequer a miscarriage of justice. must recognise a miscarriage performed for its beneThere the legislature stops; and it has always fit.
been narrowly interpreted.
The same
acts.
question
is
Here
the reasons
which obtain
in regard to
222
LAW
IN
but responsibility
still
far
off.
volved for arbitrary arrest by an officer of the law. M. Rolland, one of the most recent commentators,
has insisted " that the irresponsibility of the state
must extend from judicial matters to public matters and notably to the arrests with which they are
charged.
In the Bill on the protection of individual liberty, laid on the table in 1904 by M. Clemenceau, one article contained the principle of state responsibility
when
wrongly attacked individual liberty. M. Clemenceau was then a senator but in his bill of 1907 when he was Prime Minister no such clause is The text adopted by the senate at the to be found. second reading in 1909 contains an article which defines the cases where a magistrate can be sued and makes the following proposal "The state is civilly responsible for condemnation to damages pronounced against magistrates save for its appeal
the police
; :
The
on
it
its
part.
42.
"
"Revue
p.
727,
RESPONSIBILITY
223
be noted that since 1910 a vote of credit has been granted to the Minister of Justice "for individIt
may
uals
prosequi or acquittal by the decision of the court." " But in his report of 1910 M. Bourely explained "that we do not intend to recognise any right to compensation
arrest; that
proposal
But the bill has not been voted upon and poned to the Greek Kalends.
it
seems postis
The
of acts.
the
It
an error that has often been denounced but seems can only believe that in endorsed with tenacity. the end the reality of facts will prove stronger than
We
tradition
will be
in all non-jurisdictional
official.^"
an administrative
VI
It
is
" Budget of
20
185; Lerebourg-
224
LAW
IN
largest
development; nor can it be explained save by the complete elimination of the idea of sovereign power. From whatever official the act is derived, whatever
the nature of the act involved, public responsibility
may
be engaged.
Nor
is
distinction
acts.
ment
It
liability
may be
no fault
is still
in service.
is
is
real
the fault
Sometimes no such fault is to be found but the courts insist on assuring the private citizen against the damage that may be caused by the operation of the public service, by making the state responsible. This is
Here
tal
in all
its
fullness
is
made
clear a
fundamenstate is the
notion of the
new
public law.
The
operated by government in
that operation involves
Once
exchequer must bear the burden of it. This is not a sudden evolution, but it has been a rapid one, and it is perhaps worth while to note its principal stages.
RESPONSIBILITY
I
225
showed
was
which no exception save expropriation, direct or indirect, and permanent proprietary damage, was admitted. The principle was too narrow to be fundamental. With the increase of state functions the theory of irresponsibility became unattainable. It was seen that the theory, to which some
a principle to
partisans are
still
is imIn the earlier editions of his book on administrative law, M. Berthelemy formulated it as a dogma and as late as 191 he could still maintain the irresponsibility of the
To-day
that theory
had otherwise provided." But he has been obliged to recognise the emergence of change and the evolution by the courts of the thestate,
save
where
statute
ory of responsibility. He thinks, indeed, that they "The Council of State," he are contrary to law. writes,^^ "is the only judge of the fairness of the compensation demanded.
It has not only to
ask the
source of the evil against which protest is made; it has also to examine the question of its injustice and
the merit of compensation.
...
is
must
insist
on the
be-
of State."
In other terms,
M. Berthelemy
lieves that a
21
governmental act
raises in
law no claim
p. 'Q.
^'^Ibid.. p.
79 and note
1.
226
LAW
IN THE
MODERN STATE
justice, the
in fact,
Council of State
affords compensation.
I cannot understand this opposition between equity and law. I do not see how a solution can be true in law and untrue in equity, how a division can be made between theory and practice. The impracticable and the inequitable cannot be legal. Law is the body of rules based upon equity and responding to a practical
need.
No
and practise the state is responsible for damage involved in the performance of its functions, the rule of law must conform to that
rule of law.
If in equity
responsibility.
How
the
Undoubtedly because
with the classic the-
modern mind
dissatisfied
and it is possible to point out the moment when French jurisprudence accomplished In 1899 the Council of State dealt with the change. an action for responsibility brought by M. Le Preux, who had been wounded, at Maisons-Alfort (Seine), where the watch is a state service. The plaintiff founded his plea on the negligence of the service. It was rejected on the ground that "it is a matter of principle that the state is not, where it exercises its sovereign power, and notably in regard to the police,
ory of sovereignty
responsible for the negligence of
is
its
agents.
...
It
admitted that Le Preux may secure personal damages against the officials concerned but that gives no
right of action against the state."
"
^*
RESPONSIBILITY
227
This decision was most vehemently criticised by M. Hauriou in a most remarkable note in Sirey." He did not go so far as to recognise the general responsibility of the state. Like the Court, he admitted that state responsibility can only be involved by an act that at each stage of its application bears the marks of sovereign power. He admitted that when the government, as a police regulation, does not enter into direct relation with private citizens it cannot be held responsible. But he forcibly insisted that when the statfe comes into contact with private citizens in the performance of its functions, no matter of what kind, it ought to be responsible. He urged that it had such relations in the Le Preux case and that the decision of the Council of State was wrong. The decision aroused much discussion and has had
much
influence.
identical to that of Le Preux. Grecco demanded compensation for a wound received in his house at Soukoras (Algeria) by a shot from a rifle of a gendarme, fired at a mad bull which a crowd was chasing. The plaintiff urged that the accident would not have occurred if the police had adequately performed their duty. The Council of State rejected the plea; that the decision contains these significant words: "the evidence does not show that the accident of which the plaintiff had been a victim is due to a fault in the public service for which government would be
"Sirey, 1900, III,
p. 1.
228
LAW
IN
^'
responsible."
govern-
"It
is
w^ould lead."
Such was the first stage of the evolution. There was no longer to be a distinction between sovereign and non-sovereign acts. Every administrative act
could involve state responsibility.
The
authorities,
however,
terpreted?
still
How
M. Hauriou
tried to
"The
state,"
he
says,^ "is
it
makes
it
a fault."
in the
mind
of
when
it
meant
It
"faults
committed by agents
if
ice."
meant
the risk
is
responsibility
where
On
more than individual administrative acts. Acts of regulation were still surrounded by the penumbra of
^^Conseil d'Etat, Feb.
III, p. 113.
=">
1st,
1905, Recueil,
p.
Sirey,
RESPONSIBILITY
sovereignty; and
it
229
was long before that ghost was Meanwhile the Council of State recognised in a whole series of decisions government responsibility. Since 1903 it had implicitly admitted
banished.
that the state could incur responsibility for the unjust dismissal of a civil servant.
It
gave compensa-
In 1910 the state was compelled pay damages to certain old soldiers who had been called with undue slowness to civil employment in violation of the Act of 1905. In 191 1 the state was
jectoral council.
to
declared responsible for the damage caused to a canal boat by the negligence of the lock keepers. In these different cases there is always mention of But it a fault in operation or an agent's negligence.
is
to
is
generous in
its
inter-
pretation of fault.
consequence the administration does not urge concurrent negligence on the part of the private citizen. This presumption of fault was strikingly shown in Pluchard was knocked down the Pluchard case.^' in a street of St. Denis by a policeman pursuing a criminal and his leg was broken. The policeman was not at fault. He was only doing his duty and Compensathe occurrence was a simple accident. however granted. "The circumstances tion was show entire absence of negligence on the part of the
plaintiff,
uted to
and the accident must therefore be attriba fault in the public service which involves
p.
"Recueil, 1910,
1029.
230
LAW
IN
the fault?
criminal ; he accomof
any negligence.
tradition.
linguistic
accomplished.
is
The
re-
involved where
VII
A last
tive acts
step remained.
So
have been concerned. In 1903 when the general responsibility of the state began to be admitted, there was no thought of extending it to government ordinances. M. Hauriou, in the note cited
This concept no longer holds good. To-day governmental responsibility is involved no less for ordinances than
bility of
government
in this regard.
This responsibility was recognised in the decision The railway of 1907, which has already been cited. companies urged that the decree of March ist, 1901,
on railroad safety, which modified the previous or^'
the
comment
of
M.
RESPONSIBILITY
231
dinances of 1846, was ultra vires. It was urged that since their concession was granted on the basis of the
decree of 1846 a later regulation involving an increase of expenditure was ultra vires by violating an
implied contract.
application.
The Council
in
Government,
its
which the public service is operated. But at the same time it declared that if the companies could show special prejudice by reason of the new decree they would have the right to compensation.^" Here the responsithe right to change the conditions under
bility of the state for
an
State
act
comparable
formal statute
is
clearly ad-
mitted.
It has
not, in fact, contractual
been shown above that the responsibility is even though the Council of
;
makes use of
is
that category.
service
here all-important.
The The
idea of public
state
has the
power and duty of modifying by ordinance or formal statute the rules relating to public utility; but it must indemnify all those in a special degree prejudiced by
the modification.
when
prefects
tramway
by the power conferred on them in the Act of June 11, 1880. The compensation is then borne by the public funds of the department or commune served by the company. This was decided in more different decisions in igio by the
='Recueil,
1907,
p.
1.
232
LAW
IN
Council of State. The prefect of the Seine ordered the Metropolitan Company, for the safety of travellers, to make certain changes which increased the expenditure contemplated by the Charter. The Council
upheld
state responsibility.
A month later
gave a similar
This solution
ulation
is
is
The party concerned can have the on the ground that it is ultra vires; but the period of appeal is very short, being by the law of April 13, 1900, reduced from three to two months. When the period has passed, the party concerned must claim compensation. That has been for a long time admitted without controversy for individual acts a further step is being taken and the decision is being made applicable to ordinance as well. It is true that, so far, this decision has been made only when municipal decrees are in question; but the prinmayor of the Department of ciple is no different. Aude ordered the church bells to be rung at civil funerals.*^ The Council of State has often held this
illegal.
act annulled
act ultra vires in view of the law of January 2, 1907. This law declared the churches especially devoted to
in re-
had elapsed.
The
action for
1910,
p.
270.
17, 1912.
RESPONSIBILITY
233
compensation was won, because the communal exchequer must repair any material or moral prejudice suffered by a private citizen by reason of the
police service of the
commune.
of state responsibility in
modern
a curious application in a
Turpin was
He brought an action for damages against the state, Schneider & Co., the Iron Company of the Mediterranean and M.
the inventor of melinite.
Canet.
The
it to pay Turpin one hundred thousand francs in damages. "The acts of the Minister of War," said the court,'^ "have clearly caused Turpin a prejudice for which the state is responsible. This prejudice results from preventing Turpin from opening negotiations with Armstrong; whether because the Department of War left
condemned
to
expectation of
making
new
arrange-
ment with France, or because the Department, under false promises of compensation, had obtained the inclusion of certain clauses in his contract with
Arm-
strong
sation."
clearly
to
compen-
No
how
travelled
We
'^
itself
need not inquire why the court did not declare incompetent in the case nor why the question
13, 1911.
Le Temps, Jan.
234
LAW
IN
was not raised. However that may be, we have a court which unhesitatingly scrutinises and judges the acts of a public service which, if sovereignty were anything more than a mere term, would clothe itself
in the cloak of irresponsible authority.
The
decision
is it
what
It holds
from Turpin his patent, and by its hesitations preventing him from selling his patent to a foreign company, thus causing him damage. The idea of public responsibility based upon public fault could hardly be more clearly
the state responsible for not buying
vindicated.
It
still
is
which
soon disappear.
that for acts of
The courts have constantly held war or diplomacy the state cannot be
held responsible.
here
;
No
sovereignty
is
in
question
for, if it
curity
would be protected by it, and both the police and the army would be irresponsible in time of peace.
that
is
Though
is
Thus
in
1905 and 1907 a Council of State decided against pleas for compensation for damage inflicted in the
the
ground
that
military operations on foreign territory cannot give rise to action in the courts.'^ Similarly, in 1904, it
p.
185.
RESPONSIBILITY
235
policy on the ground that a question relating "to the exercise of sovereign power in the relation of the
French government with foreign governments cannot be brought before the Council of State.'* The
court thus used the idea of sovereignty to evade the idea of responsibility. Dead in the domain of internal public law,
it still
persists in the
it is
realm of for-
eign policy.
But here
also
destined to perish.
VIII
While
enlarged,
undergone
The
tirely different
of the state.
is asked in enterms from that of the responsibility That, as we have shown, is the purely
The
responsibility
responsibility of fault.
act,
they themselves
who
fictive
person of
whom
they are
The problem of responsibetween two individuals goes back to a conbetween two wills; responsibility ought naturupon him who has consciously violated But that is the definition of fault. of law.
p.
ally to rest
some rule
"Recueil, 1904,
p. 98.
236
LAW
IN
The evolution of public law has been the determination of the cases and conditions in which the fault of a civil servant is such as to make it purely his
personal responsibility, and not that of the
state, to
some private
tically
citizen.
completed.
There
whom
the evolution of
our jurisprudence is strictly limited by the rules of our Code of Procedure (Arts. 505-516). This text
recognises, doubtless, the personal responsibility of
It enu-
made
engaged.
kind of
method by which it may be That can be done only where there is some fraud, whether in the course of proceedings,
or at the
fuses to
moment
of the verdict, or
is
to say,
answer requests or neglects to pass on cases that have been, or are about to be, determined." This is an antiquated legislation no longer adapted to the situation of our public law; sooner or later its Certain attempts, inrigid limits will be widened. deed, have already been made in this direction. In preamble to his statute on the protection of indithe vidual liberty, M. Clemenceau, in 1904, as simple
senator, declared that the basic guarantee of individ-
posal of
second
The same ideas underlay the proM. Cruppi in 1905. The proposal, read a time by the senate on March 2, 1909, enlarged
RESPONSIBILITY
and made precise those
cases
237
where
judicial officers
can be held personally responsible; but the special procedure was retained in a fashion so technical that,
as
was
two
cases
had been
Tha
IX
No
tive civil servants, and our evolution goes forward without hindrance. The Constitution of the year VIII, while it maintains the principle of responsibility formulated by the earlier constitution, subordinates every penal or civil action against a civil servant to the prior authorisation of government through the Council of State (Art. 75). That destroyed all responsibility; and throughout the Restoration, the liberal party bitterly criticised this rule without sucArt. 67 of the Charter of 1830 announced a cess.
on the responsibility of officials; a bill was brought forward and there were, particularly in All to no end; 1835, long and confused discussions. always in force. The Republic of Art. 75 remained 1848 did nothing and, naturally, the Second Empire took care to prevent its abrogation. Since the Counstatute
cil
of State
had
still
every
to
was subordinated
At the end of the Secthe pleasure of government. ond Empire the abrogation of Art. 75 was one of the
23H
LAW
One
IN
of the
gram.
ment
19,
of National
This
to
which seems
gave
is
rise
great controversy of
historical.
merely
settled by a deCourt of Conflicts based on the report of M. Mercier in the Pelletier case. This was an action for responsibility, brought before an ordinary court, by the owner of a newspaper which had been suspended by General Ladmirault, in command of the Department of the Oise, then in a state of siege.
interest
not
cision of the
The
which gives
75 has only put an end to that non-receivability to the ordinary courts complete freedom
of action within the limits of their capacity; but
it
has
not extended their jurisdiction, or suppressed the prohibition against them, to take cognisance of administrative acts."
The
:
and said
to
imputed
"Outside this act the plaintiff has the defendant no personal act involving
^^
So was created by the Court of Conflicts the disand personal acts. For official acts the government alone, and not the civil servant, is responsible; the latter is
II, 28.
RESPONSIBILITY
decides
if
2^9
the official
is
the act
is
petsonal.
Where
taken before the civil court, the prefect will bring it before the administrative tribunal. If the latter
thinks that the act
is
of an official nature,
;
it
confirms
otherwise it sends it back and the latter then proceeds in its usual manner. The Court of Conflicts thus exercises a power which is not its own in law. In reality,
to the ordinary court
it
is
whether, the act having been shown to have been done, it was official or personal. The result has been that the business of jurisprudence has been the dis-
from
official acts.
Some decisions settle personal faults by degree of fault; when the official has made a great mistake the
act
is
personal.
That
is
words of
M.
Hauriou, make
the civil servant responsible only where his act is out of relation to his function. The fault may be
inexcusable and yet be official if it is inherent in his position it may be light and yet personal because it
;
is
not so inherent.
concerned.
This
is
logical enough.
It has
how
modern
240
LAW
IN
by claims in its special partment acts, the citizen has his safeguard, but not
otherwise
;
in other cases
whom
he can make responsible. That clearly emphasises our conception of the state as a complex
personal act
is
obvi-
when
as,
some personal vengeance or, as in the Morizot case, a flagrantly blasphemous end. If, on the other hand, his act is merely ultra vires in some form, his lack of
intention negatives his personal responsibility be-
beyond his powers, he has nevertheless had his proper function in view. It is impossible to cite the numerous cases which mark the stages of this evolution; some of the most
cause, although he has gone
important only can be noted. On Jan. ist, 1909, S., an inspector of indirect taxes, verifying the books of the tobacco bonding house of Toulouse insisted that there were irregularities and accused the boy clerk of
him a thief. The boy was dismissed and summoned the inspector before the CorThe prefect took the rectional Court of Toulouse.
dishonesty and called
case to the Administrative tribunal, but his decision
was annulled on the ground that "the facts show clearly that they had no connection with S.'s administrative function and were exclusively personal to
himself."
''
RESPONSIBILITY
The Court
suit of
24I
an end unconnected with function in the Morizot case. M., a teacher in the commune of the Department of the Cote-d'Or, made obscene remarks before his class, slandered the army, apologized for certain criminal acts, and blasphemed certain religious and Catholic beliefs. The fathers of his pupils summoned him before the courts and claimed
2,000 francs damages.
The
prefect
removed the
basing
dieu,
upon the admirable report of M. Tarannulled his decision. "The defendant's reitself
marks," it said," "cannot if proved be considered as in any way connected with the teaching which is and therefore constitute a purely his function
.
. .
personal fault."
gave orders to a municipal official to sound the church bells at a He was sued by the curate and the civil funeral.
Another case
is
of interest.
A mayor
case
was removed to the Administrative courts. The Court of Conflicts annulled the decision on the ground that the text neither of statute regulation nor of local custom authorised the mayor to act in this fashion what he did was therefore personal to him;
self.^^
Where
ant
is
'^Recueil, 1908, p. 597; Sirey, 1908, III, 83. 8Recueil, 1910, pp. 323, 442; Sirey, 1910, III. 297.
242
LAW
IN
This has sometimes caused surprise, but only among those writers dominated by the theories
the state.
of the
Roman
its
law.
They
is
not
agents and
that by
responsibility
we
only
mean an
assurance
state.
CONCLUSION
At the beginning of
lic
this book I pointed out that puband private law evolve on parallel lines. In private law the autonomy of the human will is in process of
by
itself to
we no
who
hold of-
stance of
In government
we
who
exercise the
preponderant force and on whom, in consequence, there is incumbent the duty of fulfilling a certain social function. It is the business of government
to organise certain services, to assure their continuity,
and control their operation. Public law is thus no longer the body of
jects
it is
rules regits
sub-
management
of certain of the
Statute
;
is
no longer the
command
is
sovereign state
it is
body
of
men.
An
administrative act
gives
no longer the
commands or of a public act of an official servant who fulfils a command; it is always an act made in view of the rule of service. The problems
243
who
244
LAW
of the
IN
same
ment
The
responsibility of the
is
state
is
generally recognised.
It
bility of a person for faults but a public assurance, through public funds, against the risks involved in
service.
like private
law
is
coming
to
be
Realistically,
pearance, in
in
is
a social
its
tween the subjective right of the individual and the subjective right of a personified state it simply aims at organising the achievement of the social function of government. For, be it remembered, the plea of
;
ultra vires,
which
is
based upon the violation of individual right but upon the destruction of an organic rule of service.
This evolution
sense in
is
not at
its
end
indeed, there
is
a
is is
which
it
Social evolution
of infinite complexity
no more than
its
protective armament.
The
genera-
CONCLUSION
tion that
245
its
that
system of law,
a like mistake.
metaphysical,
definite
and
Our own
sents
but a
moment
of history; and before it has been keen observer will note its trans-
mutation into a newer code. The generation that is to come will be happy in so far as it is able, in better fashion than ourselves, to achieve freedom from its dogmas and its prejudices.
Bordeaux,
Jan. 31, 1913.
THE END
BIBLIOGRAPHICAL NOTE
I.
M. Duguit
i.
ii.
iii.
iv.
has written the following treatises: Separation des Pouvoirs et L' Assemble Constituante. Paris, 1893. L'Etat: Le Droit Objectif et La Loi Positif. Paris, 1901. L'Etat: Les Gouvernants et Les Agents. Paris, 1903. Traite de Droit Constitutionnel. 2 vols. Paris, 1911.
La
V.
Manuel
de
Droit
Constitutionnel.
(3rd
edition.)
Paris, 1918.
vi.
Le Droit
Social,
Le Droit
Individuel et L'Etat.
(2nd
Paris,
edition.)
vii.
Paris, 1911.
viii.
Paris, 1913.
The second has been translated in part in Modern French Public Law (1917), in the Legal Philosophy Series edited by Professor J. H. Wigmore; the seventh in the Evolution of Private Law in the Nineteenth Century (1918), in the Coritinental Legal Historical series, also edited by Prof.
Wigmore.
IL The following are M. Duguit's chief articles: i. Le Droit Constitutionnel et La Sociologie. Revue Internationale de I'Enseignement (1889), Vol.
ii.
iii.
iv.
28, p. 495. L'Election des Senateurs. Revue Politique et Parlementaire (1895), p. 61. L'Acte Administratif et L'Acte Jurisdictionnel. Revue de Droit Public (1906), Vol. XXIII, p. 413. De la situation des particuliers a I'egard des services
publics.
(1907)^, Vol.
XXIV,
p.
414.
la
De
la responsabilite
loi.
637,
BIBLIOGRAPHICAL NOTE
vi.
La
Revue Politique
p.
vii.
Law
and the
XXXI,
p. 1.
Collective Agreements.
Yale
Law
The
M.
J.
among
the
more important
discussions of
XXV,
p.
W.
J.
Jethro
Charmont:
190-9.
La
A. Esmein:
p.
32.
J.
Faurey:
p.
260.
F. F.
Geny: Revue Critique (1901), N. S. Vol XXX, p. 502. Geny: Science et Technique en Droit Prive (1915), Vol.
II, p.
191.
M. Hauriou:
L. Michoud:
I,
VoL
p.
44.
G. Richard: Revue Philosophique (1912), VoL 73, p. 225. R. Saleilles: Revue. Montalembert (1909), p. 256.
Harvard
University, iQig.