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A PROJECT ON

CRITICISM OF SOCIAL SOLIDARITY AS PER VALUES OF CONTEMPORARY


TIMES IN CONTEMPORARY TIMES

SUBMITTED TO

Ms. Anukriti Mishra

(FACULTY OF LAW)

SUBMITTED BY

Ishu Deshmukh

SEMESTER-V, SECTION- B

ROLL NO- 81

(B.A., L.L.B. Hons.)

DATE OF SUBMISSION: 21-08 -2017

HIDAYATULLAH NATIONAL LAW UNIVERSITY,

NEW RAIPUR (C.G.)

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Certificate

I hereby certify that the work which is being presented in the International Relations Project
Report entitled Criticism of Social Solidarity in contemporary times, submitted to the
Ms Anukriti Mishra , Faculty of Law, Hidayatullah National Law University, Raipur is an
authentic record of my own work carried out during a period of 5th Semester.

Ishu Deshmukh

(SEMESTER V)

Roll No. 81

Section- B

This is to certify that the above statement made by the student(s) is correct to the best of my
knowledge.

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Acknowledgment

I, ISHU DESHMUKH, feel myself highly elated, as it gives me tremendous pleasure to come
out with work on the topic Relevance of various schools of law in contemporary times. I
started this project a month ago and on its completion I feel that I have not only successfully
completed it but also earned an invaluable learning experience.

First of all I express my sincere gratitude to my teachers who enlightened me with such a
wonderful and elucidating research topic. Without him, I think I would have accomplished
only a fraction of what I eventually did. I thank him for putting his trust in me and giving me
a project topic such as this and for having the faith in me to deliver. His sincere and honest
approach have always inspired me and pulled me back on track whenever I went off track.
Maam, thank you for an opportunity to help me grow.

I also express my heartfelt gratitude to staff and administration of HNLU in library and IT lab
that was a source of great help for the completion of this project.

Next I express my humble gratitude to my parents for their constant motivation and selfless
support. I also express my gratitude to all the class mates for helping me as and when
required and must say that working on this project was a great experience. I bow my head to
the almighty god for being ever graceful to me.

Thanks,

ISHU DESHMUKH

(SEMESTER V)

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MEANING OF SOCIOLOGICAL JURISPRUDENCE

The Sociological School, the most prominent representative of which are Duguit, Krabbe and
Laski, describes the orthodox conception of law as a futile truth. They argue that law is not
really made by an organised body of men. They admit that there are definite agencies in a
society issuing commands or making decisions which are normally obeyed by the bulk of the
community. But all such commands or decisions do not deserve to be regarded as laws. Some
other quality is essential to give these rules the character of law. Law, according to Duguit, is
the name for the rules of conduct which men observe while living in society. They obey these
rules of conduct not because they are commands and are accompanied by punishment, but
because they are the conditions of social living. Without obedience to these rules life would
not be worth living. All of us are conscious of these rules of life which enable society to
survive.

Every man is, thus, impelled by self-interest to obey them. He knows instinctively or learns
from experience what living together means. Consciousness of this fact accounts for social
solidarity and it is the duty of the State to sustain such rules. Likewise, it is the duty of every
individual to observe all such rules as help to realize social solidarity and abstain from all
such acts as are detrimental to its growth. Laws, in brief in the fundamental sense, are the
rules of conduct which normal men know they must observe in order to preserve and promote
the benefits derived from life in society. The sanction of law, Duguit asserts, is primarily
psychological, resting in each individuals awareness of the social approval or reprobation
of his conduct according to its conformity or non-conformity to the fundamental social rules.

Krabbe explains law according to the source from which it springs. It is the sum total of all
those rules, general or particular, written or unwritten, which spring from mens feeling or
sense of right. He holds that law is above and, in origin, independent of the State. He rejects

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the idea of State sovereignty and the only theory which he is willing to recognize is the
sovereignty of law.

Krabbe defines law as the expression of one of the many judgments of value which we
human beings make, by virtue of our disposition and nature. Law is, therefore, what is just
and good from our standard of value and judgment. It is not a matter of external legal
authority, but an internal human matter. It is obeyed, because it is just and good and not
because of fear of punishment which its disobedience involves. The source of law, according
to Laski, is the individual consenting mind. People obey it as it satisfies their desires. A good
law, in his opinion, is a law which has, as its results, the maximum possible satisfaction of
desire; and no law save a good law is, except in a formal sense, entitled to obedience as
such. He, thus, puts the source of law where it most truly belongsin the individual
consenting mind. Jurists of the Sociological School hold divergent views on many points, but
all believe that law is the product of social forces and should serve social needs. They do not
concern themselves with the abstract theories, but judge the law by its results and find its
sanction in the social needs that it serves. The legal imperatives of any state, says Laski,
must always be conceived if they are to be capable of justification, in terms of the end it
seeks to serve; they are, so to say, a permanent essay in the conditional mood.

Without any reservation, the Sociologists attack the idea of a sovereign State as the creator of
law. It is possible, they point out, to conceive of a State in which there is law and no State,
but it is not possible to conceive of a State in which there is no form of law. The purpose of
law is to serve society and the purpose of the State is to enact and promulgate laws in order to
achieve the socially desirable ends. Gettel has cogently summed up what the different
Schools of Jurisprudence claim and explain.

Sociological School of jurisprudence has emerged as a result of synthesis of various juristic


thought. The exponent of this school considered law as a social phenomenon. They are
chiefly concerned with the relationship of law to other contemporary social institutions. They
emphasize that the jurists should focus their attention in social purposes and interest served
by law rather than on individuals and their abstract rights. According to this school the
essential characteristics of law should be to represent common interaction of men in social
groups, whether past or present, ancient or modern.

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The main concern of sociological jurist is to study the effect of law and society on each other.
They treat law as an instrument of social progress. The relation between positive law and
ideals of justice also effects the sociology of law.

LEON DUGUIT

Leon Duguit was a respected French jurist, dean of the law school at Bordeaux, and author of
a series of works which criticize traditional juristic opinions and ideas. The first work in
which he began to develop the basis of his doctrine (Letat, le droit objectif et la loi
positive)1 was written as a response to The System of Subjective Public Laws by the noted
German jurist George Jellinek. In this and in later works 2 Duguit criticizes the juridic
conception of the state; he also criticizes the very notion of subjective law, rejecting it as an
individualist, metaphysical construction inherited from Roman jurists and medieval
scholastics and received through the French Revolution. This construction is outdated,
according to Duguit, and is incapable of incorporating the complex and diverse relationships
currently existing between individuals and a collective group. Subjective law leads only to
fruitless and endless arguments. Having distinguished between subjective law and the realm
of jurisprudence, Duguit identifies the only undisputed norms of objective law as those
positive and negative obligations which are imposed on people who belong to the same social
group. Duguit follows the views of the French sociologist Emile Durkheim and considers that
norms of objective law are based on a law of social solidarity. Social solidarity occurs when
people have common needs which can be satisfied jointly, and when people have different
needs and different abilities which can be satisfied through the exchange of mutual services.
Proceeding from these propositions, Duguit, la Kant, tries to replace laws with obligations:
There is no law other than the law to fulfil ones duty. Even private property the most
characteristic institution of individualist, bourgeois society is presented as a social function

1
L. Duguit, Letat: droit objectif et droit positif (1901), Paris
2
L. Duguit, Letat, les gouvernants et les agents (1903), Paris; Les transformations du
droit prive (1912), Paris; Traite de droit constitutionnel (1922-1923, 2nd edition), 5 vols.
the first edition was translated into Russian.
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by Duguit: The law of property should be understood only as the power of individuals who
are in a specific economic position to fulfil the obligation of the social purpose required of
their social status.

Rejecting the notion of the state and the juridic doctrine of sovereignty as a special trait of
state will, Duguit considers the state as the person or group of persons who actually possess
power (the rulers):

The state is simply the product of the natural differentiation of people who belong to the same
social group ... the will of the rulers has no more juridic value than the will of the ruled ... In
every human society, to a greater or lesser extent, one can say that a state exists when one
group of people has coercive power.

Duguit does not object to the figurative assertion that the state is the executioners axe and
the gendarmes sabre. But having exposed the state as naked power, and having tarnished its
mystical cloak of sovereignty, Duguit quickly opens the doors of juridic ideology. This
ideology appears in the form of self-imposed legal norms, predicated by the state and
standing above the state. Both the rulers and the ruled are in the same degree under the
command of a supreme legal norm produced by social solidarity.

Only that which is lawful (and legal), in the relationships between the rulers and the ruled,
corresponds with this supreme norm.

The rulers possess the most power in any given society; consequently, the legal norm requires
them to use their power for the attainment of social solidarity.

Duguit proceeds with the idea that solidarity occurs through the division of labour and that it
assigns each person a social obligation. He thus welcomes all types of corporations,
associations, professional syndicates; various business organizations, clerical and mercantile
unions etc., and see in them the phenomenon of social integration: this is how the
amorphous mass of the nation acquires a definite juridic structure, which is composed of
people united by their common needs and professional interests. Duguit even dreamed of a
special professional representation which would supplement and counterbalance a
parliamentary representation that only reflects the power of political parties.

Duguit repeatedly declared himself to be an opponent of socialism but, nevertheless, his


theories have often been classified as socialist. After the October Revolution even our jurists

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attempted to depict Duguits doctrine as a practico-juridic basis for socialist
revolution.3 Duguits sympathies for corporate and estate representation convinced some of
his opponents that the practical conclusion of his conception was the system of soviets. In this
respect, of course, Duguit subjectively exhibits great hatred and utter incomprehension for the
October Revolution and the Soviet Republic as he demonstrates in the second edition of his
Constitutional Law. Objectively, also, his theories are an attempt to conceal and disguise the
contradictions of capitalism. He depicts capitalism, driven by the craving for profit and the
vicious class struggle, as a collectively founded for the basis of social solidarity. He presents
capitalist property as the fulfilment of a social function, and the imperialist and militarist state
as an institution that is transformed from an authoritarian power to a participant group.
Duguits scholarship is a, sure sign, on the one hand, that individualist doctrines have lost
their ideological pathos and yet are still incapable of fascinating anyone. And this is despite
their dogmatic advantages: the dogmas of law and sovereignty and subjective law remain
fashionable notions, and criticism here would not produce any radical change. On the other
hand, Duguit incarnates the period of finance capital this has made free private property a
problematic notion, and it is overtly apparent on the political scene in the form of the real
power of large capitalist corporations. These corporations collaborate with opportunist union
leaders, when the need arises, and ignore the outdated fiction of classless state sovereignty.

DUGUITS CONTRIBUTION TO THE SOCIOLOGICAL SCHOOL OF


JURISPRUDENCE:

The substantial contribution of Duguit to juristic thought is that he denounced the


omnipotence of the state which led to despoticism and totalitarian rule. He also rejected the
notion of natural rights of men which made individual hostile to larger interests of the
society.

His over-emphasis on duties rather than rights was directed towards greater inter co-operation
between individuals of a society. Duguit used law as an instrument to promote justice.

By rejecting the notion of State sovereignty, he subordinated the state to the social needs and
asserted that all State actions are to be tested by the courts with reference to social solidarity.

3
See A.G. Goikhbargs introduction to the translation of Duguits Transformations, and
various places in his A Course on the Economic Law of the RSFSR.

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Thus he acknowledged the superior role of the judiciary in adjudicating vires of State actions
or laws.

The impact of Duguits legal theory was so great that the later jurists were inspired to
propound their own theories relating to law and jurisprudence.

DOCTRINE OF SOCIAL SOLIDARITY:

Duguits theory of social solidarity was based on the fact that interdependence of man is the
essence of the society. Every individual has his existence owing to his membership of the
society. Each individual cannot procure the necessities of life himself. Therefore, each in his
turn has to depend on other for his needs. The ultimate end of all human activities is to ensure
the interdependence of men. Duguit further stated that law also serves the same end. He
pointed out that law is a rule which men obey not by virtue of any higher principle but
because they have to live as members of society.

He rejected the traditional notions of rights, sovereign, state, public and private law, legal
personality as fiction and unreal because they were not based on social reality. His entire
thrust was on mutual co-operation and mutual interdependence between individuals, groups
and societies according to the principle of division of labour for the purpose of social
cohesion.

According to him, the outstanding fact of society is the interdependence of the people. This
interdependence has always been there but it has increased in modern times on account of the
increasing knowledge of man and his mastery over the physical world. In modern society we
cannot live without the services provided to us by our fellowmen. Our food, our housing, our
clothing, our recreation and entertainment are always dependent on the activities of other
people. Specialisation has increased to such an extent that we can exist only by virtue of our
membership of a community. Social interdependence is not a theory or a conjecture but a

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fact. It is an all important fact of human life. All human activity and organisation should be
directed to the end of ensuring the harmonious working of man with man. Duguit calls it the
principle of social solidarity.

As all human activity & organisations are to be judged from the manner in which they
contribute to social solidarity, the state can claim no special position or privileges. It is only
one of the various human organisations which are necessary to protect the principle of social
solidarity. It can be justified in so far as it defends and furthers the principle of social
solidarity. It is nothing more than an organisation of men who issue command backed by
force. If the state acts in a way which promotes social solidarity, it is entitled to be upheld an
encouraged. If it doesnt perform that function, the people have right to revolt against state
and suppress the state itself. The whole idea of sovereignty is meaningless. All power is
limited by the test of social solidarity. Every man and every grouping of men is under a duty
arising out of the facts of social existence. That duty is to further social solidarity.

IMPLICATIONS OF SOCIAL SOLIDARITY:

Social solidarity is the touchstone of judging the activities of individuals and all
organisations. The state is a human organisation whose duty is to ensure social
solidarity. Duguit was in favour of strong checks on the abuse of State power through
the establishment of the strict principles of State responsibility. To quote him The
State is sovereign, but such sovereignty has its limits. The foundation for & the
determination of these limitations are found, according to the individualistic doctrine,
in the existence of the natural rights of the individual anterior to the State, which the
latter must respect and guarantee, but to which it can add limitations to the extent
necessary to protect the rights of all. Again, either the autonomy of the individual
comes to limit the power of the State, to determine the extent of the restrictions which
it can bring to bear upon the individual activity of each in which case the State ceases
to be sovereign, since there is a will other than its own which comes to determine the
limitations upon the manifestations of its own will, and so the sovereignty of the state
disappears.
Duguits disbelief in an all- powerful State, combined with his belief in the greatest
possible division of labour, leads him to put much stress upon decentralisation and
group government. The different classes cooperate with each other and defend
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individuals belonging to them against the excessive claims of other classes as well as
against the arbitrary actions of the central power.
Another implication is his rejection of the intervention of the State as the decisive
factor turning a social into a legal norm. The conclusions of Duguit in this connection
resemble very much those of the historical and some of the sociological theories. He
writes: But it is not the intervention which gives the character of a judicial norm to
the rule; it would be powerless to prove it if the rule did not already possess it itself.
An economic or moral rule becomes a judicial norm when there has penetrated into
the consciousness of the mass of individuals composing a given social group, the
notion that the group itself, or those in it who constitute the greatest force, can
intervene to repress violation of this rule. In other terms, a rule of law exists whenever
the mass of individuals composing the group understands and admits that a reaction
against the violation of the rule can be socially organised.

SOCIAL CRITERION OF THE VALIDITY OF LAW:

DUGUIT (1859- 1928)

Duguit (1859- 1928) was a professor of Constitutional Law in the university of


Bordeaux.
He attacked traditional conceptions of state, sovereignty and law and sought
(required, wanted) to fashion a new approach to these matters from the angle of
society.
He insisted Social life should be viewed as it is lived, so as to be able to extract the
most accurate generalizations (overviews).
The outstanding fact of society is the interdependence of men: This has always
existed and becomes more and more widespread as life grows more complex and as
Mans mastery of the world increases. People have common needs, which require
concerted effort; they have dissimilar needs, which require mutual adjustment and
accommodation.
No one can live at the present time without depending on a far-reaching web of services
provided by his fellow- men. Water, food, housing, clothing, entertainment and so-on are
dependent on other people.

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Hence, this social interdependence is not a conjecture (guess, assumption), but an inescapable
fact of human existence. Therefore, all organization should be directed towards smoother and
fuller co-operation between people. This Duguit called the principle of SOCIAL
SOLIDARITY.

From this platform he launched his assault (attack) on traditional


conceptions of the state, sovereignty and law.

All institutions are to be judged according to how they contribute towards social
solidarity. The state can therefore claim no special position or privilege. It is not some
mystical entity, but an organization of men, which can only be justified so far as it
furthers social solidarity. When it ceases to do this there is a duty to revolt against it. It
is worth pointing out that at no stage did Duguit deny the existence of an organized unity
known as the state. This is very much a fact and to deny it would be unreal. What he said was
that it is not essential, nor entitled to special reverence (respect, admiration).

The doctrine of sovereignty has likewise become meaningless. It used to be the personal
attribute of a monarch (ruler, king), so such ideas as sovereignty of the people and the like
are inappropriate and empty. Decentralization (reorganization) makes it difficult to locate
sovereignty. The use of the notion (idea, view) of delegation does not alter the fact that parts
of sovereignty have been ceded (abandoned). Nor can sovereignty be reconciled (reunite,
resolve) with the increasing responsibilities attaching to the state. For these
reasons sovereignty fails to explain the kind of authority that governors now wield
(exercise) over the governed.

A better way of looking at it is that all power and organization are subject to the test of
social solidarity. Their existence is functional and does not extend beyond the functions they
perform in society. However, at this point, it might be noted that sovereignty is a term with
many meanings and cannot be wholly expelled in this way. There has to be some ultimate
source of authority, especially law-making authority, in every society.

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In Duguits view, with the disappearance of sovereignty there disappears also the
authority traditionally ascribed (recognized) to laws, for the basis on which these were
thought to rest is then sapped (tired, shattered) of vitality (energy, strength, liveliness).

If sovereignty is mythical (fairy tale), so too are the notions that a law is (a) the command
of sovereign, single and indivisible (b) unchallengeable and (c) the product of a single
creative act.

Such is the core of Duguits thesis: It contains some interesting implications. The first and
most obvious is that the state is not indispensable.

He drew particular attention to the move towards decentralization and away


from a central machinery of authority in view of the increasingly complex structure of
modern society.

The state is a useful, though not an essential, organization but its


power is restricted by social solidarity. Whether such a state of affairs is achieved through a
constitution or judiciary, it is akin (similar) to the advocacy of a rule of law. The objection is
simply that this is far from being the state of affairs in all countries.

It will be remembered that Duguits own initial contention was that life in society should be
viewed as it is, so it would seem that his argument is only a plea for what it ought to be.

Duguit proceeded to assert that when the state ceased to promote social solidarity there is a
duty to revolt against it.

Interdependence of men is a fact, but social solidarity is an ideal: For, in the first place, in
practice it becomes a matter of personal evaluation when the question to be decided is
whether a given course of conduct is conducive (favorable) to social solidarity or not. Does a
law imposing or forbidding racial segregation (discrimination) promote social solidarity? It is
difficult to see how this can be answered objectively and otherwise than in the light of
political, religious and moral evaluations. Secondly, whose evaluation of social solidarity is
to prevail? There is evidence that the forces of social disruption are as potent as those of

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solidarity. It would appear that Duguit has unfortunately fallen into the error of enlarging a
limited truth into an absolute.

The most significant feature is the way in which Duguit used social solidarity as a criterion
of the validity of laws. He asserted that a precept which does not further (add) social
solidarity is not law, and denied that statutes and decisions make law in themselves.

There are 3 formative laws:


1. Respect for property
2. freedom of contract,
3. liability only for fault.

The precepts of positive law should conform (obey, adapt, follow) to these formative
laws and they only achieve validity when received and approved by the mass of public
opinion.
A rule of law exists whenever the mass of individuals composing
the group understands and admits that a reaction against the violation of the rule can be
socially organized. Public opinion is thus the expression of the social solidarity principle, by
which the validity of laws should be judged.

This is open to objection as what is this


mass opinion? Its vagueness and unsatisfactory nature are obvious. By what means is it
discoverable? Situations frequently arise with regard to which no particular feeling exists
and others with regard to which opinion is divided. It is unrealistic to suggest that a court will
or will be allowed to or decline to receive an enactment as law because it can be shown that
public opinion does not subscribe to it. Once more, it is clear that this is no more than what,
in Duguits opinion, should be the position.

Duguit avoided all imagery of the state as a person with organs and will of its own. The
state is nothing more than an organization of individuals and it is they who issue commands
and carry out decisions.

He likewise denied the personality of corporations and similar groups. The coherence of
all such association lies, not in some mystic personality, but in social solidarity.

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It is ironic that Duguit, who foresaw how personification of the state could lead to
totalitarianism, which he abhorred (disliked), should have had his own theory used for that
very end. Thus, national socialist jurists seized on his minimization of conflict within
society as a justification for the suppression of trade unions and strikes.

His view of the function of government led Duguit to deny the distinction between public
and private law. All laws are only means of serving the end of social solidarity and
should be judged by that criterion.

Duguit also denied the existence of rights. Natural rights he treated as myths, since modern
research has shown that man has always lived in society and was never entirely independent.
The core of the law lies in duty, which is the means of securing that each one fulfills his part
in the furtherance of social solidarity. The only right which any man can possess, he said, is
the right always to do his duty. What are commonly called rights are only incidental to
the relations with other people which arise in the course of performing ones social duty. The
reality is thus not the right, but the duty. This aspect of Duguits theory is not only
unnecessary, but also verbalistic.

He admits that relationships do arise between individuals. These are commonly described in
the language of duties as well as of rights. His objection is merely to the use of the word
right.

LAW TO SECURE AND SERVE SOCIAL SOLIDARITY:

According to Duguit, the essence of law is to serve and secure social solidarity which is duty
oriented as it expects individual to perform their obligations as a member of the community.
There is therefore, no scope for natural or private rights. Thus Duguit stated that law consists
of duty which is the basis of co-operation and rejects the abstract concept of right which is
the source of conflict. In other words, Duguit exhorts everyone to perform his duties to the
society which would help development of co-operation and social solidarity.

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For Duguit, law is not a body of rights. The only real right of man in society is to do his duty.
Law is essentially an objective social fact concerned with the relation between man and man
on one hand, and man and state on the other.

CRITICISM AGAINST DUGUITS THEORY:

The critics of Duguit suggest that his theory of Social Solidarity suffers from many
weaknesses

It excludes all metaphysical considerations of law and it is itself based on the


ideal of natural law.
They allege that Duguit pushed natural law out through the door and let it
come in by the window.

Duguits definition of law is also confusing as in laying down the fundamentals to which the
law must conform; he confuses to distinguish between what the law is and what it ought to
be. For him, anything which does not encourage social solidarity is no law at all.

Perhaps the greatest shortcoming of Duguits theory lies in the fact that he overlooked the
growing role of State in modern times. He favoured minimum State interference completely
ignoring the fact that the complexities of modern social life and interdependence in society
necessitate greater intervention of the State in regulating human behaviour.

Another weakness of the theory propounded by Duguit is the vagueness of his doctrine of
social solidarity.

Who is to decide whether a particular act or rule is in furtherance of social solidarity or not?
It is to be decided by the court, then the social solidarity would become a question of personal
evaluation of the judge, which would not be happy situation since Judges too have their own
limitations and convictions.

Again, social solidarity may be differently interpreted by different persons to suit their own
purposes.

For example, Marxists used this theory for denial of individual rights and the Fascists used it
to suppress the trade union movement.

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Duguits most noted French disciple is Professor Jaise; in England his ideas are shared by the
young political theorist Harold Laski.

CONCLUSION

The Study of law in relation with society is known as sociological school. The theory of
Duguit is based on interdependence of men in society which is known as Social solidarity.
To procure and to manufacture necessities of life men depend upon society. Functions to
behave in the society are also dependable upon each other. The end or the result of all human
activities and organization is is to ensure interdependence of men which is social solidarity or
theory of social fact which means men should live together as formation of law is very
essential for community life. The aim is to safeguard interdependence or to fulfill all
necessities and till this end is not achieved aim of the law is not fulfilled. Duguit was against
State sovereignty. He think it is the will of the people that who will govern them. So state is
also under a duty to ensure social solidarity. No difference between public law and private
law because it will elevate power of State above the rest of the society. His principle social
solidarity itself a natural law ideal. Social solidarity is vague because judges will decide
whether an Act or Rule is furthering social solidarity which is very dangerous for the
judicial system as judges have their known limitation. His law confuses with natural law
theories because if law does not further social solidarity then it is no law at all.

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Though Duguit emphasis of interdependence in society but his theory does not perform well
due to minimum interference of state because in modern times social problems of modern
community can be solved better by state activity.

-X-

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