E. Belfort Bax, The Evolution of Law, Justice, 23rd June 1921, p.7. (review)
Transcribed by Ted Crawford.
Marked up by Einde O’Callaghan for the Marxists’ Internet Archive.
Proofread by Chris Clayton (May 2007).
Law in the Modern State, by Professor Leon Duguit, translated by Frida and Harold Laski (Allen and Unwin, 40, Museum Street, W.C.1), 10s. 6d. net.
Old Friedrich Engels was fond of defining the distinction between the bourgeois State of today and the Socialist society of the future as consisting in the fact that, while the primary function of the State of today is the government or coercion of persons, that of the future Socialist Commonwealth will be mainly the administration of things or affairs. In the book before us, the well known French jurist, M. Leon Duguit, endeavours to show from the purely juridical point of view that the conception at the basis of the modern State is already undergoing a transformation which cannot fail to suggest to the Socialist student the premonitory symptoms of the line of cleavage between the old and the new order enunciated by Engels.
M. Duguit contends that the notion of dominion, or “sovereignty” as he terms it, is fast disappearing from modern legal ideas respecting the State and its functions. Government which was formerly viewed as the exercise of sovereign will, whether autocratic, oligarchic, or democratic, upon “subjects,” is now coming to be regarded as the organ of administration of public services. The old notion of government as the expression of this sovereign will has come down to modern times and their bourgeois national State systems from the ancient Oriental monarchy, the Greek “tyrannos”, the Roman “dominium” originally of the Senate and people of Rome, and subsequently of the imperial “princeps” as its personification, down to the “Sovereign People” of the French Revolution and its idealists. In recent legislation, as pointed out by M. Duguit, it is becoming rapidly superseded by the notion of the State as the organiser of public services.
M . Duguit points out, however, that the notion of the State as the sovereign fell into the background during the Middle Ages before the “customary” tradition of the feudal manor. Medieval Europe presented itself in its political aspect as a hierarchy of feudal manors. The feudal lord, as contends M. Duguit, was not a prince who commanded by virtue of his “imperium,” In theory at least, the political and economic relations of feudalism were those of a concordia of rights and reciprocal duties. M Duguit, however, is surely wrong in regarding feudal relations as contractual, and as a consequence falling foul of the late Sir Henry Mayne’s well-known and absolutely sound dictum that progress as between mediaeval and modern times has been from status to contract. The notion of status, which was the basis of all truly medieval conceptions economic and political, has progressively given way in post-medieval times to the bourgeois notion of free contract.
The feudal concordia was quite different. The present writer remembers disputing this point with Engels, who also fell foul of Mayne as being too “juridical” and not sufficiently “economic” in his treatment of the question. It may be perfectly true, as M. Duguit maintains, that the notion of free contract is in its turn giving way before the idea of “public service,” but it is none the less true that the notion of free contract, coupled with that of a more or less democratically-conceived State sovereignty, gradually arose on the ruins of the Middle ages and dominated the advanced thought even of the nineteenth century to near its close.
We should add that the style of the book strikes us as repellently dry and in some cases obscure, though not having seen the French original we are unable to say whether this is the fault of M. Duguit himself or his translators. Why, too, do the latter speak of “transport” as “transportation,” which recalls Botany Bay and the old penal system?
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E. Belfort Bax |
Last updated on 27.5.2007