Law in the Modern State, 
 by Leon Duguit, Professor of 
 
 Law in the University of Bordeaux. 
 Translated by Frida and Harold Laski 
 
 New York fi. W. Huebsch Mcmxix 
 
COPYRIGHT, 1919, BY B. W. HUEBSCH 
 PRINTED IN U.S. A 
 
CONTENTS 
 
 PAGE 
 
 TRANSLATOR'S PREFACE . . vii 
 
 INTRODUCTION ix 
 
 AUTHOR'S INTRODUCTION xxxv 
 
 CHAPTER I 
 THE ECLIPSE OF SOVEREIGNTY 
 
 I. The Roman Conception of Imperium .... 
 ii. The Partial Eclipse of Sovereignty in the Feudal 
 
 Period; How It Survived 
 
 in. Its Reconstruction as a Royal Instrument on the 
 
 Model of the Roman Imperium 
 
 iv. Theories of Bodin, Loyseau, Lebret and Domat . . 6 
 v. The Revolution Substitutes the Sovereignty of the 
 
 Nation for the Sovereignty of the Monarch . 10 
 
 vi. Criticism of the Revolutionary Dogma .... 12 
 
 vn. Its Incompatibility with Important Facts ... 15 
 
 vni. Particularly with Decentralisation and Federalism . 20 
 
 ix. And Its Inability to Protect the Individual Against 
 
 Despotism 25 
 
 CHAPTER II 
 PUBLIC SERVICE 
 
 I. The Theory of Sovereignty Has Thus Broken Down 32 
 II. Though the Theorists of Public Law Hesitate to 
 
 Admit This 35 
 
 in. For It Has Been Substituted the Idea of Public 
 
 SeVvice 39 
 
 rv. Which Is Now the Basis of Modern Public Law . 44 
 v. Which Is Now the Basis of Modern Public Law . . 48 
 
 iii 
 
 4097$? 
 
IV CONTENTS 
 
 PAGE 
 
 vi. It Guarantees Regular Supply of Public Needs (a) 
 
 by Privately Exploited Franchises 
 
 vii. Or by Their Direction Operation by Government . 61 
 
 CHAPTER III 
 STATUTE 
 
 I. The Nature of Law. Why It Has the Force of Com- 
 pulsion. What Is Meant by Normative Laws . 69 
 II. What Is Meant by Constructive Laws .... 74 
 in. The Difference Between Laws and Ordinances . . 79 
 IV. Statutes and the Theory of Administration ... 83 
 v. The Theory and Its Case-Law 89 
 
 CHAPTER IV 
 SPECIAL STATUTES 
 
 I. Local Acts 96 
 
 n. Bye-Laws of Decentralised Authorities . . . . 101 
 
 in. Disciplinary Regulations 105 
 
 IV. Rules of Voluntary Associations Ill 
 
 V. Statutory Agreements: (a) Collective Contracts . 118 
 
 VI. Statutory Agreements: (b) Franchises in Private 
 
 Hands 122 
 
 vii. The Sanction of Statutory Agreements . . . . 125 
 
 VIII. The Forces Which Compel Obedience to Them . 128 
 
 CHAPTER V 
 ADMINISTRATIVE ACTS 
 
 I. Sovereign and Non-Sovereign Acts 134 
 
 ii. Disappearance of This Distinction ..... 138 
 
 in. The True Nature of Administrative Acts . . . 142 
 
 IV. The State and Its Contracts 146 
 
 V. The Ordinary Business of Administration . . . 150 
 
 vi. Its Relation to the Courts 151 
 
 vii. Comparison with Other Countries .... 158 
 
CONTENTS V 
 
 CHAPTER VI 
 THE BORDERLINE OF ADMINISTRATIVE LAW 
 
 PAGE 
 
 I. The Origin of the Theory of Ultra Vires . . . 164 
 
 ii. The State in the Courts ........ 169 
 
 in. Method of Attacking the State 172 
 
 iv. Abolition of Its Special Privilege 178 
 
 v. Abuse of Power and Its Legal Prohibition . . . 184 
 
 vi. Discussion of Some Decisions of the Courts . . . 191 
 
 CHAPTER VII 
 RESPONSIBILITY 
 
 I. The Irresponsible State 197 
 
 II. The Turning-Point in Its Evolution 203 
 
 in. Parliamentary Responsibility 207 
 
 iv. Parliamentary Responsibility 213 
 
 V. Judicial Responsibility 218 
 
 vi. The Responsibility of the Civil Service .... 223 
 
 vii. Governmental Responsibility for Ordinances . . 230 
 
 VIII. Governmental Responsibility for the Police . . . 235 
 
 ix. Private Responsibility of the Civil Service . . .237 
 
 CONCLUSION 243 
 
 BIBLIOGRAPHICAL NOTE 247 
 
TRANSLATOR'S PREFACE 
 
 THE translation 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 for permission to reproduce cer- 
 tain passages from an article of mine in that period- 
 ical, 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 
 share in the labour of translation. 
 
 H. J. L. 
 
 vu 
 
INTRODUCTION 
 
 THIS volume would hardly have needed an 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 com- 
 mon 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 dis- 
 cussion abroad Eugen Ehrlich, Duguit, Stammler, 
 Geny remain but little known. An effort, indeed, 
 has been nobly made to apply what seems most per- 
 manent in their teaching to the fundamental prin- 
 ciples of Anglo-American law; and it is probable 
 that the historian of the next age will regard the work 
 of Dean Pound as an epoch in our jurisprudence. 
 But this is a movement still in its first, fitful begin- 
 nings; and it is perhaps worth while to emphasize 
 
 IX 
 
X INTRODUCTION 
 
 some of the more notable theories set forth in this 
 book. 
 
 And first of its perspective. We seem on the 
 threshold of a new political synthesis. The move- 
 ment towards 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 ex- 
 amine with scant respect the traditional theory of 
 representative government. Psychologists like Mr. 
 Graham Wallas, 1 sociologists like M. Emile Durk- 
 heim, 2 political theorists like Mr. Ernest Barker, 3 
 publicists like Mr. Herbert Croly 4 and Sir Sidney 
 Low, 5 are all of them insistent that the classic defence 
 of representative government in the main, a prod- 
 uct of the Benthamites has broken down. The 
 great society has outgrown the mould to which the 
 nineteenth century would have fashioned it. The 
 life of the community can no longer be contained in, 
 or satisfied with, its merely political achievement. 
 It is not so much the general content of our ideals 
 that has been called into question. Rather has a 
 grave doubt been raised whether the present mecha- 
 
 *Cf. his Human Nature in Politics (1908). 
 
 2 Cf. his contribution to the Lib res Entretiens (4me serie) 
 1906. 
 
 3 Cf. his article, The Discredited State, in the Political Quar- 
 terly for Feb., 1915. 
 
 4 Cf. his Promise of American Life (1904) ; Progressive Dem- 
 ocracy (1915). 
 
 5 Cf. his Governance of England (revised ed., 1914). 
 
INTRODUCTION XI 
 
 nisms of politics are likely to take us much further in 
 the direction of their attainment. 
 
 It was inevitable that, sooner or later, this scepti- 
 cism should penetrate the sphere of jurisprudence; 
 and, since it was, above all, the effort of Revolution- 
 ary France which outlined the character of the mod- 
 ern state, it was in some sort fitting that in France 
 again the attempt to undermine its foundations 
 should have been begun. The national sovereignty 
 which Rousseau made the central dogma of modern 
 politics meant, so soon as the working class became 
 articulate, an immense increase of governmental 
 functions; and in a country which, like France, still 
 retains the large outlines of Napoleon's administra- 
 tive settlement, this has meant a centralization such 
 as the traditional localism of England and America 
 can hardly understand. Hence, of course, the re- 
 volt against etatisme which, in its broad perspective, 
 seems to have arisen about the time of the Dreyfus 
 case. 6 The republic did not emerge unscathed from 
 that tremendous ordeal. It had to turn its hand to 
 the overwhelming labours involved in a general law 
 of associations, on the one hand, and the separation 
 of church and state on the other. But, even then, its 
 difficulties had hardly begun. 
 
 The general democratic movement had left un- 
 touched the whole process of administration. 7 Its 
 hierarchical organisation was inherited directly from 
 
 *.Cf. Daniel Halevy, Apologia Pour Notre Passee (1910). 
 7 Cf. Laski, Authority in the Modern State, chap. v. 
 
xii INTRODUCTION 
 
 the anclen regime, and Napoleon did no more than 
 make it efficient. The result was to leave the civil 
 service at the mercy, directly, of the minister and, 
 indirectly, of the deputy who had favours to bestow 
 and candidates for their reception. The law of as- 
 sociations, passed under the aegis of M. Waldeck- 
 Rousseau, strengthened a movement towards trade- 
 unionism in the civil service which, though earlier in 
 origin, did not become effective until the protection 
 therein offered by the law opened up a profitable 
 avenue of effort. The outstanding event in the dec- 
 ade between the separation and the war has been the 
 challenge issued to the sovereignty of the state by its 
 own servants. They claimed the right to protect 
 themselves against its arbitrary acts. They de- 
 manded power to maintain their professional inter- 
 ests and standards exactly as the workers in an ordi- 
 nary 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. 8 The effort of the state 
 might be unified, but its methods of attainment could 
 be various. And it became more than doubtful 
 whether, in the new synthesis such decentralisation 
 
 8 For an important criticism, however, see Dicey, Law of the 
 Constitution (8th ed.), p. 134f. 
 
INTRODUCTION xiii 
 
 involved, the sovereign state of the nineteenth cen- 
 tury would not be superfluous. 
 
 Hardly less significant was the development of 
 French trade-unionism. 9 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?* x ]Jt 
 is probable that we have been greatly misled by tri 
 attractive glamour which, in this connection, attaches 
 to the work of Sorel and Berth. The real syndical- 
 ist movement is to be found in the workshops them- 
 selves, and in the effort of men like Pelloutier and 
 Griffuehles to develop a complete economic and so- 
 cial life for the worker outside the traditional cate- 
 gories of the state. Political action has not been so' 
 much despised as ignored. The French chamber 
 has been regarded as simply irrelevant. Whatever 
 its pretensions, the Revolutionary state has been dis- 
 missed as an institution doing for the commercial 
 middle class what feudalism achieved for the land- 
 owning aristocracy. Its sovereign power has been 
 simply the most effective weapon by which it has 
 served its purposes. The significance of the return 
 to Proudhon lies in the fact that he sought in a fed- 
 eralist organisation of society the clue to freedom. 
 He understood, as Marx never understood, that the 
 
 9 The best account is in L. Levine, Labor Movement in France 
 (1912). 
 
 10 Cf. Pirou, Proudhon et le Syndicalisme Revolution naire 
 (1911). 
 
XIV INTRODUCTION 
 
 root of the industrial problem lies less in an indig- 
 nant sense of exploitation than in a eagerness to 
 share in the determination of worl ^ conditions. 
 He gave no quarter to the nationalise i which was 
 the result of Marx's teaching. Ratl did he insist 
 that only by the destruction of the itralised bu- 
 reaucracy created by the Revolution <. aid freedom 
 become effective. He grasped, in L.Ct, what has 
 been the main motive to combat in the ideals of mod- 
 ern French trade-unionism. 
 
 Two other streams of thought are hardly less im- 
 portant. The decline of parliamentary government 
 in France is, of course, only part of the general bank- 
 ruptcy which confronts the representative system 
 completed by the nineteenth century. 11 Its evils 
 have in France been perhaps more strikingly appar- 
 ent than elsewhere; and the failure of any govern- 
 ment to give serious attention to the necessary admin- 
 istrative reforms has led to more than one serious 
 crisis. Not, indeed, that the general atmosphere of 
 scepticism has, in any general fashion, led men away 
 from the republic; but it has served to demonstrate 
 the necessity of searching out new sources of politi- 
 cal method and insight. The second stream is re- 
 lated to this necessity, though it is historically far 
 older. What is termed regionalism is, under a va- 
 
 11 Cf. Guy-Grand, Le Proces de la Democratic. Wallas, Hu- 
 man Nature in Politics, Introduction. I may perhaps refer to m> 
 Problem of Administrative Areas, Smith College Studies, Vol. IV, 
 No. 1, for a discussion of the technical problem involved. 
 
INTRODUCTION XV 
 
 riety of forms, simply a protest, which goes back to 
 the federal theories of the Girondins, against the 
 absorptiveness of Paris. That, as Lamennais ob- 
 served seventy years ago, causes "paralysis at the ex- 
 -tremities and Apoplexy at the centre." It is a move- 
 ment which & ^ks the reconstitution of French local 
 life under <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 crea- 
 tion of entirely new areas of administration, the use 
 rather of professional than of territorial groupings, 
 every section of the movement is determined that the 
 Napoleonic completion of the an den regime must 
 disappear. 12 
 
 Lastly, it is important to remember the legal back- 
 ground in which these varied forces have been work- 
 ing. The traditional theory of the state made it the 
 effective guardian of public order and gave to it the 
 weapon of sovereignty that it might achieve its pur- 
 poses. By sovereignty was largely meant the right to 
 act without being called to answer for such policy as 
 it might consider essential to its aims. It was re- 
 garded as a person, with the significant limitation 
 that the possession of its rights did not involve, save 
 as an act of grace upon its own part, an assumption 
 of proportionate legal responsibility. In England, 
 f or example, the Crown can not be sued save by per- 
 
 12 Cf. Charles Brun, Le Regionalisme (1911) the highest au- 
 thority upon this subject. 
 
xvi INTRODUCTION 
 
 mission of the Attorney-General. All sorts of limi- 
 tations surround the effort to sue the American state; 
 though certain constitutional guarantees, and notably 
 the fifth and fourteenth amendments, have been in- 
 tended 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 con- 
 venient fiction of national sovereignty, to be trans- 
 formed into what, if not by definition then certainly 
 in result, is the divine right of the state. 
 
 II 
 
 In such an atmosphere, it is against this theory of 
 the sovereign state that M. Duguit's work has been a 
 magistral protest. His earliest book remains its full- 
 est exposition. 13 In a treatise on constitutional law 
 which, in the breadth of its analysis, challenges com- 
 parison with Esmein's almost incomparable study, he 
 has traced its ramifications through the field best 
 fitted to display its import. 14 In three lectures at the 
 Ecole des Hautes Etudes Sociales, he has effectively 
 summarised their bearing. 15 The volume here trans- 
 lated relates his theories to the whole course of mod- 
 ern public law, and is, perhaps, the best summary of 
 their general result. 
 
 The starting-point of M. Duguit's attitude is, in 
 
 13 L'Etat, 2 vols. (1901-3). 
 
 14 Traite de Droit Constitutionnel (1911). 
 
 15 Le Droit Social, Le Droit Individuel, et L'Etat (1908). 
 
INTRODUCTION xvii 
 
 reality, a sociological interpretation of the state. He 
 does not discuss the philosophic background of law, 
 and has been, indeed, somewhat unduly contemptu- 
 ous of all legal metaphysics. He starts from the ob- 
 vious fact of social interdependence. We are mem- 
 bers one of another. Observation reveals to us a 
 mass of individuals, each with his own part to play 
 in the world. Social life is constituted by the inter- 
 relation of those functions. This fusion of teleolo- 
 gies suggests, each in its due context, general prin- 
 ciples of social conduct. Collectively, they repre- 
 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. 
 
 This rule of law is, clearly, independent of the 
 state, and, indeed, anterior to it; for it is the principle 
 on which the life of society far vaster in extent than 
 the state depends. It is imposed on private per- 
 sons, either by their compulsory co-operation to 
 achieve the fullness of social solidarity, or by their 
 prevention from performing such acts as might pre- 
 vent any individual from contributing his utmost to 
 the common good. 16 It is imposed upon public per- 
 sons, even more than upon private, because their sit- 
 uation makes incumbent upon them a greater sense 
 of their responsibility for its realisation. These pub- 
 
 16 Cf. Bosanquet, Philosophical Theory of the State (1909), 
 p. 187f. 
 
XVlll INTRODUCTION 
 
 lie persons are, in their totality, what we call govern- 
 ment; for, to M. Duguit, a state is simply a society 
 divided into government and subjects. It would, 
 then, be clearly absurd if the more important posi- 
 tion of government, relative to the general social end, 
 did not involve greater responsibility for that end. 
 
 What, then, is the function of government? By 
 legislation, it lays down the principles by which the 
 rule of law is to be attained; by administration, it 
 translates into effective terms those principles thus 
 made into statutes. Certain things, obviously, it 
 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 
 are the most obvious instances. It must not place 
 hindrances in the way of each man's development, 
 save in the protection of the common freedom. It 
 must, for example, allow him freedom of thought, of 
 instruction, and of religion, because experience has 
 shown that, without these, individuality is stunted. 
 It must not, similarly, impose on any persons a sys- 
 tem of caste. It must declare nugatory any individ- 
 ual act which is antithetic to its rule of law. If, for 
 example, experience has shown that the use of cer- 
 tain materials in industry is dangerous to the health 
 of those therein employed, it is the duty of govern- 
 ment to prohibit that use. 17 Above all, since these 
 
 17 On the growth of governmental power with new social ex- 
 perience cf. the observations of Mr. Justice Holmes in Noble State 
 Bank v. Haskell, 219 U. S., 104. 
 
INTRODUCTION XIX 
 
 duties are often, for a variety of causes, likely to be 
 unfulfilled, or, at least, but partially performed, the 
 government should organise securities that can be 
 used by the private citizen to compel their enforce- 
 ment. If this negligence continues, the right of in- 
 surrection necessarily remains as the ultimate reserve 
 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 reali- 
 sation. The state is beneath the law; for, by its very 
 definition, it is an instrument and not an end. Nor is 
 that rule of conduct unchanging; for it is clear that 
 it 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 sov- 
 ereignty 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 de- 
 termined 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 nothing in that which gives use to 
 any personality differing from that of those con- 
 cerned in the conception and performance of the or- 
 der. It is true that the officials have wider powers 
 
XX INTRODUCTION 
 
 than the average citizen ; but that does not make their 
 acts in substance different. 
 
 / 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 irrespon- 
 sible will of those who exercise it; but they are, in 
 strict fact, limited by the purpose it is to serve. 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, then, is the state in fact performing? Its 
 function is to provide for certain public needs which 
 are growing each day more varied, more imperative 
 and more numerous. The whole theory of the state, 
 indeed, is contained in the idea of public need. It is 
 the performance by the mass of officials of their so- 
 cial function the part assigned to them in that di- 
 vision of labour from which the ideal of social soli- 
 darity is born. A statute is simply the legislative set- 
 tlement of such a function the determination that 
 some public need shall be served by government in a 
 certain fashion. Administrative acts are simply the 
 ] fulfilment of the statute the creation of a special sit- 
 luation corresponding to the social need therein satis- 
 
INTRODUCTION XXI 
 
 fied. These are not political in character that is 
 rather their corruption. They are simply technical 
 operations which, like any other social act, are sub- 
 mitted, for their general validity, to the rule of law 
 whence their necessity is ultimately derived. 
 
 In such an aspect it is obvious that the state is re- 
 duced to the position of a private citizen, since, like 
 the latter, it is brought within the scope of an objeg- 
 tive law. That reduction necessarily involves the 
 notion _of a full responsibility for its acts ; and M. 
 Duguit has been quick to note how therecent juris- 
 prudence of the Conseil d'Etat is extending on every 
 hand the idea of state-responsibility. 18 It is, how- 
 ever, a doctrine that makes against authoritarianism. 
 The only justification for any public act is that its 
 result in public good should be commensurate with 
 the force that is involved in its exercise; but that, 
 after all, is ultimately a matter for the private judg- 
 ment of each one of us. A real impetus is thus given 
 to the initiative of the private citizen. Room is left 
 for that reservoir of individualism upon which, in 
 the last resort, the welfare of society depends. No 
 act, in his view, draws its justification from the fact 
 that it is the result of will. He demands, rather, the 
 research of reason into human needs and makes the 
 Tightness of an act depend upon an agreement with 
 the conclusion of such enquiry. 
 
 Three practical and immediate consequences are 
 obvious in such an attitude. M. Duguit seems clearly 
 
 18 Cf. chap, vii below. 
 
XX11 INTRODUCTION 
 
 to believe in the virtue of a written constitution; or, 
 at least, he emphasises the distinction between con- 
 stitutional and ordinary legislation which is the main 
 element in the debate. The reason for this conclu- 
 sion really goes back to the central principle of his 
 system; for the written constitution is nothing so 
 much as an attempt to make the fundamental notions 
 of its contrivers beyond the reach of ordinary legis- 
 lative change. It logically follows, therefore, that 
 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 a 
 policy still far distant; in the House of Commons, 
 certainly, it has been, in the last decade, decisively 
 rejected. 19 Judicial Review in America has been, of 
 course, since Marbury v. Madison the corner-stone 
 of the constitutional edifice. It is yet interesting to 
 note that its main tendency, in recent years, has been 
 to defeat the progress of exactly the type of measure 
 upon the desirability of which M. Duguit would 
 himself probably lay the gravest emphasis. 21 It has 
 led to acrimonious discussion, in which a former 
 president was led to urge the need for a recall of ju- 
 dicial decisions by popular vote 22 ; and the most emi- 
 
 19 Hansard, 5th series, 1912, vol. 42, p. 2229. Speech of Mr. 
 Asquith, 
 
 20 For a full account cf. Beard, The Supreme Court and the 
 Constitution. 
 
 21 Cf. Frankfurter, Hours of Labour and Realism in Constitu- 
 tional Law, in Harv. L. Rev., Vol. 29. 
 
 22 Cf. Brooks Adams, Theory of Social Revolutions, chap. i. 
 
INTRODUCTION xxiii 
 
 nent of American judges since the classic time of 
 Marshall and Story has told us that he would see the 
 disappearance of the power over Congressional leg- 
 islation without regret. This is said, not so much in 
 criticism of M. Duguit, as to indicate the presence of 
 a difficulty in the face of legislative acts that is per- 
 haps absent when executive policy is considered. It 
 is, moreover, clear that in such a system the person- 
 nel of the courts raises grave problems. A 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 can- 
 vassed. 23 That is not merely true of the present time. 
 From the period when Marshall assumed the chief 
 justiceship to the Civil War, practically every serious 
 political issue has sooner or later come to the Su- 
 preme Court for decision; and the method in which 
 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. 24 Obviously, there- 
 fore, the issue has somewhat wider bearing than is 
 clear from any passing analysis. 
 
 M. Duguit, lastly, has emphasised the necessity of 
 readjusting the theory of the state to the new perspec- 
 
 23 Cf. the immense volume cf. testimony taken by the Senate 
 Committee on the appointment of Mr. Justice Brandeis to the 
 Supreme Court. 
 
 24 Cf. Collins, The Fourteenth Amendment and the States, < 
 
XXIV INTRODUCTION 
 
 tive given to it by the importance of social groups. 25 
 It is no longer possible, as he thinks, for a unified di- 
 rection of the whole, centred in the Council of Minis- 
 ters in Paris, or the cabinet in London, or, as in 
 American experience, in the presidential mind alone, 
 adequately to grapple with the issues that confront 
 us. M. Duguit has nowhere drawn any full picture 
 of the tendency that is emerging; but he seems to in- 
 cline to an acceptance of that ideal of technical au- 
 tonomy for each special public utility of which M. 
 Leroy has been the sponsor. x 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 re- 
 pudiates, 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 in- 
 fluenced by the contemplation of feudal society. 
 Class, to him, means simply a group of men whose 
 functions have a specially kindred character 26 ; and 
 it is the function of such a class, as a unit in relation 
 to the whole structure, that impresses him. This 
 tends, perhaps, to give a somewhat static character to 
 his analysis of the social disintegration that confronts 
 us; or, rather, it emphasises more the fact of disinte- 
 gration than the effort of reconstruction. For the 
 
 25 Cf. the third lecture of Le Droit Social, Le Droit Individuel 
 et L'Etat. 
 
 26 Cf. Le Droit Social, Le Droit Individuel et L'Etat, p. 114, 
 
INTRODUCTION XXV 
 
 latter, we must turn, on the one hand back to Proud- 
 hon, and his almost febrile suggestiveness, 27 on the 
 other, to a host of men whose work is, in reality, noth- 
 ing so much as the harvest of the seed M. Duguit has 
 sowed. 
 
 Ill 
 
 It would be out of place here to attempt anything 
 like a detailed criticism of the theories presented in 
 this book. 28 Nevertheless, it is worth while to indi- 
 cate the directions from which such criticism has 
 come. Naturally enough, its main stream has been 
 directed against M. Duguit's denial of the sov- 
 ereignty of the state. M. Esmein, for instance, has 
 restated against him the classic theory by his insist- 
 ence that unless there is, in each state, some unchal- 
 
 we have no 
 
 effective legal guarantee of public order. Juristi- 
 cally, the argument does not seem answerable; for, 
 in the legal theory of the state there must be some one 
 authority beyond appeal. But while the criticism 
 has legal validity, it is, in sober fact, politically 
 worthless. The strength, indeed, of M. Duguit's 
 analysis is in its political, rather than its juristic, ap- 
 plication. So long as we are satisfied with the mere 
 logic of a terminology, the juristic theory of sov- 
 
 27 Cf. especially, Du Principe Federatif one of the great books 
 of the nineteenth century. 
 
 8 The bibliography contains a list of the more important ar- 
 ticles upon his work. 
 
XXVI INTRODUCTION 
 
 ereignty will remain as impregnable to assault as it 
 is inapplicable to the facts of life. For, as M. Duguit 
 shows, it is when we attempt its test by its applica- 
 bility to politics, the real problem becomes not so 
 much the statement of authorities as the measure of 
 influence. That, indeed, is the significance of Pro- 
 fessor Gray's profound observation, that the real 
 rulers of a society are undiscoverable. Certain, at 
 least, it is that they do not coincide with the ordinary 
 theory of jurisprudence. 
 
 More vital is the criticism that M. Duguit has not, 
 as he assumes, suppressed in his system the idea of 
 subjective law. The test of legal validity is, it is 
 true, made the objective interpretation of the facts of 
 life. But there is not anything like the unanimity 
 of agreement as to the meaning of those facts which 
 is implied in the assumption of unanimity. The 
 nineteenth century, to take a single example, is essen- 
 tially the period in which the fundamental content of 
 the democratic hypothesis was elaborated ; but an hy- 
 pothesis which, in England alone, aroused eager and 
 serious criticism from such minds as Fitzjames 
 Stephen, Bagehot, Maine and Lecky, in a single gen- 
 eration, can hardly claim objectivity with any seri- 
 ousness. The fact surely is that the notion of each 
 one of us of what does represent the social need will 
 so differ as merely to transfer the subjectivity in- 
 volved from the order issued by the ruling officials 
 to the judgment upon the validity of that order by 
 the subjects who receive it. 
 
INTRODUCTION XXVll 
 
 So too, it may be suggested, with M. Duguit's de- 
 nial of the existence of rights. He urges that the sole 
 fact upon which a theory of the state can usefully be 
 built is the fact of social interdependence; and from 
 that tissue of relationships he postulates a system of 
 duties for each of us relative to the function that is 
 our lot. That clearly involves, however, the exist- 
 ence of such a social organisation as permits the full 
 development of our capacity for that purpose; and 
 this, of course, involves the condemnation of much 
 of the present social order. But, if this bows out 
 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. We can even make a catalogue of the needs, 
 physical or moral or political, we require to be ful- 
 filled if that service is to be adequate ; and such needs, 
 whether or no we call them rights, will, in point of 
 hard fact, represent substantially the same thing. 29 
 M. Duguit's criticism of rights, in brief, is applicable 
 against the ascription to them of something eternal 
 and imprescriptible; but it is hardly valid as 
 against a theory of "natural law with changing con- 
 tent" such as that for which Stammler stands as 
 sponsor. 
 
 What, indeed, as M. Geny has acutely pointed 
 
 29 Cf. W. Wallace, Our Natural Rights, in his Lectures and 
 Essays; and Laski, Authority in the Modern State, chap. i. 
 
XXVlll INTRODUCTION 
 
 out, 30 is needed in M. Duguit's system is less the sci- 
 entific denial of any metaphysic than the admission 
 of the metaphysic in reality implied therein. For 
 his refusal to take much heed of philosophic jurispru- 
 dence 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 de- 
 sires that are based upon the verdict of a transient 
 majority. 31 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 
 that the research of reason cannot help reaching con- 
 clusions which are valid so long as the conditions 
 they resume obtain. Such a generalisation must be 
 the necessary basis of all political action ; for a scepti- 
 cism which refused to act except in the presence of 
 mathematical certitude would never act at all. Nor 
 is it necessary to depreciate the large number of cases 
 in which unanimity is reached in the ascription of 
 good. A legal metaphysic such as that of Cathrein, 
 who defines the ends of law in terms of the theology 
 of a specific church, may well be capable of imme- 
 diate refutation; but a metaphysic which is at once 
 
 30 Science et Technique en Droit Prive, Vol. II, p. 114. 
 
 31 See his eloquent attack in the Harvard Law Review for No- 
 vember, 1918. 
 
INTRODUCTION XXIX 
 
 empirical and pragmatic, seems necessary to the func- 
 tioning 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 criti- 
 cism M. Duguit has encountered, has centred about 
 his denial of corporate personality. Where, indeed, 
 as with M. Esmein, the doctrine is held as being no 
 more than a fiction, the controversy is no more than 
 a debate about its convenience. But with those who 
 hold the doctrine in a wider form the issue, of course, 
 goes deeper; for, at bottom, as Mr. Barker has 
 pointed out, the real problem is the philosophic na- 
 ture of universals, and goes back almost to the origins 
 of thought. Here, it may perhaps suffice to say that 
 the way in which the problem is to be regarded has 
 not, on the continent, been stated in its most useful 
 form. Anglo-Saxon jurisprudence has been fortu- 
 nate in that its definition has come, not merely from 
 one of the most distinguished, but also from one of 
 the most practical-minded of lawyers. "Whenever 
 men act in concert for a common purpose," Professor 
 Dicey has written, 32 "they tend to create a body 
 which, from no fiction of law, but from the very na- 
 ture of things, differs from the individuals of whom 
 it is constituted." The nature of that body is essen- 
 tially a metaphysical enquiry; but that we are deal- 
 ing with an activity that is unified, and must, there- 
 fore, as a unity, be made responsible, no one who is 
 
 32 Law and Opinion in England (2nd ed.), p. 154, 
 
XXX INTRODUCTION 
 
 conversant with the facts can for a moment dispute. 33 
 M. Duguit, certainly, does not deny it; for the admis- 
 sion is involved in the urgency with which he insists 
 upon collective responsibility. He is, indeed, hap- 
 pily free from that sterile system of enquiry which 
 enabled von Bliintschli to endow associations with 
 sexual characteristics, or has enabled a generation of 
 German students to search for the exact place of resi- 
 dence of the corporate will. It is better, for the pur- 
 poses of practical jurisprudence, to deal rather with 
 the external results of action than their inner nature; 
 and in that sense, certainly, the result of a system so 
 different from M. Duguit's as that of Michoud, 34 
 will, ultimately, be found to have similar conse- 
 quence. 
 
 IV 
 
 Lastly, it may be worth while to point out the in- 
 tellectual affiliations of M. Duguit in England and 
 America. In England, for the most part, those ideas 
 which approximate to his own have not come from 
 the lawyers. The course of legislation, indeed, has 
 for the past decade set in a definitely collectivist di- 
 rection ; and Professor Dicey has noted in the concur- 
 rent 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. 35 From this 
 
 33 Cf. for the injustice that otherwise results, an article on the 
 personality of associations in 29 Harv. L. Rev., 404. 
 34 Theorie de la Personnalite Morale, 1906-9. 
 35 Law of the Constitution (8th ed.)> p. xxxviii. 
 
INTRODUCTION Xxxi 
 
 standpoint, the direction of labour policy has been 
 particularly important; and especially in its latest 
 phase of what is called gild-socialism, it shows, in 
 very noteworthy fashion, points of important contact 
 with .his theories. 36 His criticisms of parliamentary 
 government have been independently worked out by 
 Mr. Graham Wallas in two books that are already 
 classic 37 ; and if Mr. Wallas has been less construc- 
 tive than critical, where he has dealt with problems 
 of organisation, it has been obvious that the synthe- 
 sis 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 Mait- 
 land'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, 38 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 fed- 
 eral idea. The whole tendency in England, indeed, 
 
 36 Cf. Cole, Self-Government in Industry esp., chap. iii. A cu- 
 rious volume, Liberty, Authority and Function by Ramiro de 
 Maeztu, attempts to give gild-socialism a juristic basis in M. Du- 
 guit's ideas. 
 
 37 Human Nature in Politics (1908); The Great Society 
 (1914). 
 
 38 The Divine Right of Kings (2nd ed., 1914) ; From Gerson 
 to Grotius (2nd ed., 1916) ; Churches in the Modern State 
 (1913). 
 
xxxn INTRODUCTION 
 
 has been to place a decreasing confidence in any final 
 benefit from government action. 39 The social prob- 
 lems it has endeavored to solve have grown beyond 
 the methods historically associated with its function- 
 ing, and the time is ripe for new discovery. 
 
 America is fortunately situated in this respect. 
 The classic home of federalism, nowhere is there 
 ground more fertile for such seed as M. Duguit has 
 sown. It is, indeed, true that recent administrative 
 tendencies in America have been towards a centrali- 
 sation largely based on raison d'etat, but that seems 
 only a temporary synthesis. 40 A significant and 
 striking opinion of Mr. Justice Holmes has empha- 
 sised the confidence of the Supreme Court in the fed- 
 eral adventure. 41 The pragmatic philosophy of law 
 at which, in the last ten years, Dean Pound has so 
 earnestly laboured is, at least in its large outlines, con- 
 sistent with M. Duguit's conclusions. In a very 
 learned work, Professor Mcllwain 42 has offered a 
 theory of sovereignty full of possibilities to the stu- 
 dent of these French ideas; and Mr. Herbert Croly, 
 perhaps the most penetrating of American observers, 
 has noted, in a study of profound suggestiveness, the 
 decline and fall of the sovereign state. 43 
 
 39 Cf. my Problem of Administrative Areas, 1-3 [Smith Col- 
 lege Studies, IV, i]. 
 
 40 Cf. The New Republic, Vol. XII, p. 234. 
 
 41 Noble State Bank v. Haskell, 219 U. S., 104. 
 
 42 The High Court of Parliament (1910). 
 
 43 Progressive Democracy (1915); and see his remarkable ar- 
 ticle, The Future of the State, in the New Republic, Sept. 15, 
 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 most striking proof. 
 The whole background of American constitutional- 
 ism, for example, is a belief in the supremacy of rea- 
 son. The very limitation of the much-criticised 
 Fourteenth Amendment only means, as Mr. Justice 
 Holmes has repeatedly emphasised, that legislation 
 must be reasonably conceived, and adopt reasonable 
 means of execution; and since that term is a matter 
 of positive evidence, it is not a gate but a road. We 
 are coming more and more to bring to the analysis of 
 legal problems whatever facts seem likely to cast 
 light upon their meaning. We are asking the state 
 to justify its existence not so much by the methods it 
 uses as by the results it can obtain. The decline of 
 Congress, for instance, like the similar decline of 
 Parliament and the French chamber, is to be inter- 
 preted in the light of its inability to cope with the 
 new demands. We have ceased to look upon historic 
 antiquity as the justification of existence; it is the 
 end of each institution of which we make consistent 
 dissection and enquiry. 
 
 In America, unlike England, there has been less 
 speculation than elsewhere as to the new synthesis 
 that is being evolved. The developments of profes- 
 sional representation in England, particularly since 
 1916, show clearly that the sovereign state of the 
 nineteenth century is in process there of conscious 
 transformation. In America, it is only within recent 
 
XXXIV INTRODUCTION 
 
 years that the problem has become sufficiently acute 
 to merit an urgent examination. Yet it is already 
 obvious that the direction in which the American 
 Commonwealth is travelling gives a new significance 
 to ancient terms ; and the political theory of the last 
 generation will need, in large part, to be re-written. 
 The kind of background for public law that M. Du- 
 guit has drawn serves with accuracy to describe the 
 content of the changes we have been witnessing. 
 Based, of course, on French experience, it needs adap- 
 tation to fit English or American affairs; yet, in its 
 broad perspective, it is not inconsistent with the facts 
 at issue. Certainly no student who patiently exam- 
 ined this effort could fail to draw from it at once 
 enlightenment and inspiration. 
 
 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, like every social phenomenon, is 
 subject to perpetual change; indeed any scientific 
 study of law must necessarily involve an analysis of 
 the evolution of legal institutions. In a sense, there- 
 fore, the transformation of the State is also the trans- 
 formation of its law. 
 
 But we must go a little deeper. The real justifi- 
 cation of this book is the immediate situation of po- 
 litical theory. Just as every living being has 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 
 history of peoples. Everything seems to make it 
 clear that we are at such a stage in the history of the 
 State. We are at a critical period not in any pessi- 
 mistic sense but in one that is merely descriptive. 
 However little we may like it, the evidence conclu- 
 sively demonstrates that the ideas which formerly lay 
 at the very base of our political systems are disinte- 
 grating. Systems of law under which, until our own 
 time, society has lived, are in a condition of disloca- 
 tion. The new system that is to replace it is built 
 
 XXXV 
 
xxxvi AUTHOR'S INTRODUCTION 
 
 VJ 
 
 ft 
 
 on entirely different conceptions. Whether those 
 onceptions mark a progress or a decline it is not our 
 business to enquire. A scientific social theory can 
 find no meaning in such terms. It can only point to 
 the fact of significant difference. 
 
 It is no narrow change that we are witnessing. 
 There is no legal institution it does not involve. 
 Theories of private law, the family, contract, prop- 
 erty, these, no less than the institutions of public law, 
 are deeply concerned. And while this evolution 
 knows no geographical boundaries save those of civ- 
 ilization, it has developed in France with peculiar in- 
 tensity. It has seemed the mission of France to stand 
 in the forefront of all epoch-making change in insti- 
 tutions 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. 1 I propose here to discuss its 
 relation to the theory of the state. Analysis will 
 show that the two transformations are in fact parallel 
 and similar. Not only do they come from like causes 
 but they permit of resumption in an identical for- 
 mula. A realistic and socialised legal system re- 
 places an earlier system that was at once abstract and 
 individualist in character. 
 
 a The Evolution of Private Law (1912). [This has been 
 translated in the Continental Legal Historical Series in the volume 
 entitled The Progress of Continental Law in the Nineteenth Cen- 
 tury. Boston, 1918.] 
 
AUTHOR'S INTRODUCTION xxxvii 
 
 The theory of the state under which the last cen- 
 tury civilised peoples the world over have lived 
 based on principles which many people served with 
 almost religious intensity. They were, so it was con- 
 tended, entitled to the final loyalty of men. They 
 were a political hinterland won for science. It was 
 a system with an honourable history. It had its Dec- 
 larations and its Constitutions. The legislation of 
 the Revolutionary period gave to it a full expression 
 in practical terms. That legislation had so profound 
 an influence as to give those principles a unique pres- 
 tige and special authority. 
 
 It is in these texts that the principles of the sys- 
 tem are clearly formulated. Two fundamental ideas 
 are the basis of their strength. The one is the theory 
 of state-sovereignty of which the original subject is 
 the nation regarded as a person, and the other the idea 
 of a natural inalienable and imprescriptible right 
 of the individual personality which is opposed to the 
 sovereign right of the state. The nation, so we are 
 told, has a personality distinct from that of the indi- 
 viduals who compose it. It has thus a will naturally 
 superior to the wills of its constituent individuals 
 simply because the collective person is superior to the 
 individual person.. This superiority consists in what 
 we call public power or sovereignty. The nation is 
 organized. It has built a government to represent 
 it. That government acts as the agent of the national 
 volition. It thus exercises in the name of the nation 
 a. sovereignty of which it cannot be deprived. The 
 
xxxviii AUTHOR'S INTRODUCTION 
 
 state is thus the sovereign nation organised as a gov- 
 4f ernment and situated on a definite territory. The 
 state as the organised nation is thus the subject of 
 sovereignty and this public power gives to it the 
 right to exercise a subjective law. It is by virtue of 
 this law that it controls its members. Its commands 
 are the exercise of this law. 
 
 Its members are at once citizens and subjects. As 
 a part of the national collectivity which exercises sov- 
 ereign powers, they are citizens; but since they are 
 subordinated to a government exercising sovereignty 
 in the name of the nation they are also subjects. Con- 
 stitutional law is thus that mass of regulations deal- 
 ing, first, with the organisation of the state, and, sec- 
 ond, with the relation of the state to its members. 2 
 We have thus two unequal subjects of law. We have 
 a superior, a juristic person formulating commands, 
 and subjects obeying those commands. Clearly, 
 therefore, such a constitutional system is in its very 
 nature a subjective system. Its very basis is the sub- 
 jective right of the state, as a person, to command. 
 
 The right of the state, then, is opposed to the sub- 
 jective right of the individual. It is a natural right, 
 at once inalienable and imprescriptible. It belongs 
 to the individual by virtue of its humanity. It is a 
 right anterior, even superior, to that of the state. For 
 the state was founded to assure men protection for 
 their individual j-j^hts. So it was proclaimed in the 
 second article of the Declaration of Rights: "The 
 
 2 Cf. Dicey, Law of the Constitution (8th ed., 1915), chap. L 
 
AUTHOR'S INTRODUCTION xxxix 
 
 end of all political association is to preserve the nat- 
 ural 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 protection of the individual rights of every 
 human being. 
 
 This recognition of individual rights determines 
 simultaneously both the direction and the limit of 
 public activity. It is in itself the source of all rules 
 regulating the relations of individuals to the state. 
 The state is compelled to protect individual rights; 
 but when the limitation of individual right is neces- 
 sary to protect the general right the state possesses 
 this limiting power also. 
 
 It is compelled to organize its defence against ex- 
 ternal enemies; for its self-maintenance is essential 
 if the protection of individual rights is to be secured. 
 The state then must organise an armed force for the 
 purpose of war. It must also organise internal or- 
 der, for it is by internal order that individual rights 
 obtain social protection. For the latter purpose a 
 police-service becomes important. 
 
 Finally the state submits itself to an objective law 
 based on the subjective right of the individual: Two 
 consequences flow from its obligation to secure the 
 rights of individuality. In the first place, when le- 
 gal conflict arises between the state and one of its 
 members, it must be decided by a court that the state 
 has organised with every guarantee of competence 
 and impartiality. The decision of that court must 
 
xl AUTHOR'S INTRODUCTION 
 
 V 
 
 be accepted by the state. In the second place, if a 
 H dispute arises between two private citizens, the state 
 again must settle it by a court which offers every 
 guarantee of independence and capacity. A respect 
 for the decision of that court must be made univer- 
 sal. For these purposes the judicial organisation is 
 essential. We have, then, a sovereign power which 
 is the subjective right of the nation organized as a 
 state. That power is limited by the natural rights of 
 the individual. The state as a consequence has the 
 duty of giving the utmost protection to such individ- 
 ual rights. It is therefore compelled to limit those 
 rights in so far as they conflict with the rights of all 
 an obligation which entails the creation and func- 
 tion of military, police and judicial services. Such, 
 briefly, is the system of public law which, inherited 
 from the past, was formulated with a marvellous 
 precision by the legislation of the Revolution. It is 
 a subjectivist system. To the subjective right of the 
 state there is opposed the subjective right of the indi- 
 vidual. Founded upon that right is at once a limi- 
 tation of sovereignty and the imposition upon the 
 state of certain duties. It is an abstract system ; for 
 it is based essentially on the concept of subjective 
 right which is obviously metaphysical in character. 
 It is, moreoyer, an imperialist or regalian system. It 
 implies that the rulers have control of the power to 
 command the imperium of the nation organised as a 
 state. 
 
 The men of the Revolution did not doubt that 
 
AUTHOR'S INTRODUCTION xli 
 
 when they formulated this theory they were laying 
 down eternal principles. It seemed obvious to them* 
 that the legislators and jurists of all times and coun- 
 tries would have no other task than the deduction of 
 their logical consequences and the control of their 
 practical application. The result has been very dif- 
 ferent. Scarcely a century has elapsed before the 
 disintegration of the system is apparent to every one. 
 Its two basic ideas, the sovereignty of the state and 
 the natural right of the individual, are already dead. 
 We see now that both of them are merely 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 
 power. National delegation is no more satisfactory. 
 The national will is the merest fiction. 3 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 indi- 
 vidual 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 sev- 
 eral generations, and has inspired the Revolution, is 
 still, with much splendour of style, only^a tissue of 
 sophistry. It is clear, too, that man cannot have nat- 
 ural rights in his individual person simply because 
 by nature he is a social being. Man as an individual 
 is a mere creation of the intellect. The very idea of 
 
 3 [See, per contra, Bosanquet, The Philosophical Theory of the 
 State (London, 1909), chap, v.] 
 
xlii AUTHOR'S INTRODUCTION 
 
 right implies the idea of social life. If, then, man 
 *has rights, he can have them only from his social 
 environment, he cannot impose his rights upon it. 4 
 
 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 Revolu- 
 tion 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 sub- 
 stituted for a domestic economy. The family can no 
 longer satisfy human needs. A vast organisation, of 
 national extent, based upon the concurrent endeavors 
 of large masses of men, is alone adequate to that pur- 
 pose. Nor is that all. Scientific discovery and indi- 
 vidual progress on the one hand, the complexity of 
 human relations and the interdependence of social 
 life on the other, are to-day so vital that the very fact 
 that some men are wanting in energy affects the whole 
 system. Above all, our most basic needs, our postal 
 system, railway transportation, our system of lighting 
 are satisfied by organizations of such economic com- 
 plexity that a moment's difficulty in their operation 
 threatens the foundations of social existence. That 
 is why the function of the state is 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 
 
 4 [See this forcibly put, though with somewhat different con- 
 clusions, in Mr. F. H. Bradley's famous essay, My Station and 
 Its Duties, in his Ethical Studies.] 
 
AUTHOR'S INTRODUCTION xliii 
 
 operation. It must prevent their interruption for a 
 single moment. 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- 
 ereignty. War, police, justice these are the func- 
 tions that harmonise with such a conception; they 
 are indeed its direct manifestation. But the case is 
 different with industrial service. The first need with 
 the latter is not any longer the power to command; 
 rather is it the obligation in a practical fashion to 
 supply needs. We recognise that the governing 
 classes still retain power; but they retain power to- 
 day 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 ful- 
 filled. The functions they have to achieve form, in 
 their totality, the business of government. 
 
 The present evolution, then, may be summarised 
 as follows : The ruling class has no subjective sov- 
 ereignty. It has a power which it exerts in return 
 for the organization of those public services which 
 are consistently to respond to the public need. Its 
 acts have neither force nor legal value save as they 
 contribute to this end. 
 
 Constitutional law is no longer a mass of rulers ap- 
 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 equal validity; there is 
 no hierarchy of wills. The measure of their differ- 
 ence is determined by the end they pursue. The will 
 
xliv AUTHOR'S INTRODUCTION 
 
 of a statesman has no special force in itself ; its valid- 
 ity is derived from its relation to the public service. 
 It is, moreover, a relation that permits of degrees. 
 
 So it is that the idea of public service replaces the 
 idea of sovereignty. The state is no longer a sov- 
 ereign power issuing its commands. It is a group of 
 individuals who must use the force they possess to 
 supply the public need. The idea of public service 
 lies at the very base of the theory of the modern state. 
 No other notion takes its root so profoundly in the 
 facts of social life. 
 
CHAPTER I 
 THE ECLIPSE OF SOVEREIGNTY 
 
 WE have first to discuss the causes that have contrib- 
 uted to the disintegration of the theory of sovereignty. 
 As in the case of every important social problem, 
 they are as numerous as they are complex. Some 
 are both anterior to the creation of the imperialist 
 system and inherent in it; others are external and 
 hinge on philosophical, political, and economic con- 
 siderations. Indeed, every legal theory is the prod- 
 uct of these three factors. 
 
 I 
 
 The idea of sovereignty, as we find it in the Contrat 
 Social and the constitutions of the Revolutionary pe- 
 riod, 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 
 ought therefore to disappear at that point in social 
 evolution when subjects demand from their rulers 
 something more than the services of defense, of po- 
 lice, and justice. 
 
 Like most legal institutions under which European 
 
 l 
 
2 /;., ;^:jy;';rj?; X^E] '.-MODERN STATE 
 
 civilization has developed, sovereignty goes back in 
 its origin to Roman law. During the feudal period 
 it was almost completely eclipsed. Its reappearance 
 is a modern phenomenon. It was the action of law- 
 yers who mingled royal power with the Roman im~ 
 perium and feudal lordship to make the sovereign 
 power of modern law. In the i6th century Bodin 
 outlined its theory; he made of sovereignty a per- 
 sonal possession of the king. In 1789 the nation 
 dispossessed him. Law found the legitimacy of 
 its act in the doubtful philosophy of the Contrat 
 Social. 
 
 A legal theory of sovereignty dates only from the 
 beginning of the Roman Empire. It was the posses- 
 sion of the people as a whole. Capable of being del- 
 egated to a single man it was confided to the prin- 
 ceps by the lex reg'ia^ It was thus possible for the 
 emperor to concentrate in his person all those powers 
 the Republic had divided between the different mag- 
 istracies. 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, 
 
 1 Cf. Ulpian, L. i. Dig. De Const., prin. 1, 4. 
 
THE ECLIPSE OF SOVEREIGNTY 3 
 
 as a right to command inherent in his position. It 
 was no longer a right exercised by popular delega- 
 tion ; 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 
 the lex regia it is as a piece of antiquarianism, a 
 phrase copied literally from a text of Ulpian. The 
 fact was that the Roman Emperor equaled his will 
 with law. Quod prlncipi placult legis habet vig~ 
 orem is a maxim derived from the fact that the em- 
 peror now possesses full sovereignty, can, that is to 
 say, impose his will on others as his right, just be- 
 cause it is his will, just because it therein possesses a 
 quality entitling it to general obedience. So the ge- 
 nius of Rome created a legal theory of public power 
 later to be called sovereignty which was to re- 
 main until the twentieth century the basis of public 
 law in Europe and America. 
 
 II 
 
 During the feudal period this theory of the im- 
 perium 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 hi- 
 erarchical. Duties and rights were reciprocally im- 
 
4 LAW IN THE MODERN STATE 
 
 posed. The feudal lord was not a prince who com- 
 manded by virtue of his imperium. He was a party 
 to a contract, demanding the fulfilment of promised 
 services in return for the fulfilment of his own prom- 
 ises. In the texts of the period we do not find the 
 word imperium. Rather is the current phrase con- 
 cordia, that which unites men,- be they strong or weak, 
 by a series of reciprocal rights and duties. 2 Despite 
 the violence and conflict of which the middle age is 
 so full, contract is the basis of the social structure. 
 Yet the notion of imperium did not entirely disap- 
 pear. In Germany it was maintained for the em- 
 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 
 when the Capetian monarchy was no more than a 
 shadow, men did not forget that the king "is charged 
 to obtain peace by justice." "It was not merely the 
 Church," M. Luchaire has rightly pointed out, 
 "which above all made the crown the fountain of 
 justice. The lay feudality itself recognised that the 
 whole purpose of the royal office was justice and 
 peace. The oath taken by Philip I and his succes- 
 sors 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 its legitimate 
 claims." 3 
 
 2 Cf. E. Bourgeois, Le Capitulaire de Kiersy-sur-Oise, p. 320. 
 
 3 Luchaire, Histoire des Institutions Monarchiques de la France, 
 I, 40, Fliche, La Regne de Philippe I, 1912. 
 
THE ECLIPSE OF SOVEREIGNTY $ 
 III 
 
 The duty and power inherent in the crown to as- 
 sure to all peace by means of justice are the principal 
 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 pos- 
 sessed. It was the king, so they taught, as an indi- 
 vidual, who possessed the imperium; it was his prop- 
 erty and the legal interpretation of the royal t'ra- 
 perium derives from the idea of individual owner- 
 ship. 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 trans- 
 mit it after his death. So was formed the patrimo- 
 nial conception of the state a conception so domi- 
 nant at one time in Europe as to leave profound 
 traces in later law. Two causes of very different 
 kinds have concurred in its origin. 
 
 On the one hand, the persistence of Roman the- 
 ories among the royal lawyers was important. Since 
 their position was derived from the king's efforts to 
 find a legal basis for his power, the lawyers believed 
 that they could not better co-operate in that task than 
 by making that power the equivalent of the Roman 
 
6 LAW IN THE MODERN STATE 
 
 Jominium. Feudal law in the second place, under 
 the empire of very complex circumstances, estab- 
 lished a close relation between power and landed 
 property. There is power only where there is land- 
 ed property and its possession similarly implies a 
 certain power. Of course, as I have pointed out, 
 even at the height of the feudal regime the king was 
 recognized to have a power so personal as to be in- 
 dependent of his land. But the feudal conception 
 had spread too widely not to influence even the notion 
 of kingship. Kingship indeed was more than su- 
 zerainty; but the power of kingship was regarded 
 above all as a right of suzerainty and logically there- 
 fore, as a property-right. 
 
 When the feudal theory was combined with the 
 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 it is a subjective right; a king, in 
 his person, is its subject and after the model of pri- 
 vate inheritance he transmits his possession to his 
 heirs. 
 
 IV 
 
 From these materials the lawyers of the ancient 
 regime built up a precise and complex theory. I 
 cannot here discuss it in detail ; but it will not be use- 
 less in explaining how the modern theory of sov- 
 ereignty is derived from the ancient regime, to cite 
 
THE ECLIPSE OF SOVEREIGNTY 7 
 
 some characteristic passages from the three jurists 
 who have most clearly expounded the principles at 
 the root of public law during the monarchy. 
 
 Loyseau, for example, writing at the beginning of 
 the seventeenth century, described the king as fol- 
 lows : 4 "The king is above all a functionary with the 
 full control of all public power . . . and above all a 
 lord with full ownership of public power. . . . Also 
 for long the kings of France have had sovereign 
 power by prescriptive right of property." In the 
 Treatise of Lordship, 5 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 its exercise and not like that of lordship 
 from the simple fact of property." Loyseau then 
 divides lordship into public and private types. 6 
 "Public lordship is so called because it concerns and 
 deals with the right to command public power and 
 can only be exercised by a public person . . . public 
 lordship is called in Latin imperitim, potestas, dom- 
 inatio, seigneurie" So if imperium is a lordship it 
 is a property and by definition therefore every lord- 
 ship is a property. It is perhaps worth noting that 
 Loyseau himself draws a distinction between prop- 
 
 4 Traite des Offices, Bk. II, chap, ii, Nos. 21 and 28 (ed. of 
 1640, pp. 187-8). 
 
 5 Traite des Seigneuries, chap, i, No. 5 (Paris, 1640, p. 6). 
 6 Ibid. 
 
8 LAW IN THE MODERN STATE 
 
 erty in public and property in private power, 'Be- 
 tween public lordship and private lordship: "He 
 who is submitted to private lordship is a slave; he 
 who is submitted to public lordship is a subject." 
 
 This theory is summarized by Domat in a concise 
 and vigorous sentence, 7 "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 per- 
 
 son." 
 
 This power, a patrimonial right personally pos- 
 sessed by 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 cer- 
 tain lordships and notably to royal lordships. The 
 two Latin words from which the term sovereignty 
 x seems to be derived, superanus and supremitas, de- 
 scribe 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 
 the internal affairs of his barony, the lord recognizes 
 no suzerain, for "each baron is sovereign in his 
 barony." 8 But the character of sovereign belongs 
 above all to the king: "for the king is sovereign and 
 
 7 Le Droit Public, tit. iv, sec. 1, No. 3 (ed. of 1713, p. 21). 
 8 La Coutume de Beauvoisis, chap, xxiv, sec. 41 (ed. of 1842, 
 11, 22). 
 
THE ECLIPSE OF SOVEREIGNTY 9 
 
 has the right of general control over the kingdom." 9 
 From the beginning of the second half of the elev- 
 enth century the term sovereign is applied exclu- 
 sively to the king; and in the sixteenth century Pas- 
 quier could write : 1C "the word sovereign is usually 
 applied to all who are the first dignitaries of France 
 but not absolutely, and with the lapse of time it has 
 become attached to the first of those dignitaries, that 
 is to say, to the king." 
 
 It was not long, by a phenomenon of frequent oc- 
 currence in linguistic history, that the word sov- 
 ereignty, originally attached simply to a single char- 
 acter of the royal person, came to mean the royal 
 power itself. It was Bodin who first used the word 
 in this sense and thus began, at least in part, the end- 
 less controversies we have inherited. He defined 
 sovereignty as "the absolute and perpetual power in 
 the state." Then he analyzes what he calls the char- 
 acteristics of sovereignty. The first and most essen- 
 tial " is "to command all in general and each in par- 
 ticular and that without the consent of its superior, 
 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 sov- 
 ereignty only as a quality inherent in certain lord- 
 
 9 1 bid, chap. Ixi, sec. 72 (11, 40, 7). 
 
 10 Recherches sur la France, Bk. VIII, ch. xix (ed. of 1723, 1, 
 795). 
 
 11 Les Six Livres de la Republique, Bk. I, ch. vii and xi. 
 
10 LAW IN THE MODERN STATE 
 
 ships, sometimes uses the word to designate the royal 
 power; 12 and Leyret, who 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 
 power exerted by the king. 13 
 
 In the seventeenth and eighteenth centuries, there- 
 fore, sovereignty means a right to command placed 
 in the king's hands. It is a right of the same kind as 
 the right of property. The king exerts it just as he 
 exerts his patrimonial rights. Sovereignty is a prop- 
 erty; but it is so unified that it cannot either be di- 
 vided or alienated. Like every proprietary right, 
 it is, with the exception of certain restrictions derived 
 from the nature 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 which are the expression of the 
 sovereign will of the king. 
 
 Such are the origins of the idea of national sover- 
 eignty. It becomes one and indivisible, inalienable, 
 and imprescriptible. Formulated in law, it ex- 
 presses the national will. So at least .we have been 
 taught by the declarations and constitutions of the 
 Revolutionary period. These formulas are as arti- 
 
 12 Traite des Seigneuries, chap, ii, Nos. 4-9 (ed. of 1640, pp. 
 14-15). 
 
 13 De la Souverainete du roi, Bk. I, ch. ii (ed. of 1642, p. 5). 
 
THE ECLIPSE OF SOVEREIGNTY II 
 
 ficial as the ideas they express; or, rather, this con- 
 ception 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 
 Constitution. Full of admiration for its teaching, 
 the Constituent Assembly was yet deeply impreg- 
 nated with the monarchical conception. It was for- 
 tunately discovered that by a simple verbal change 
 the monarchical theory of sovereignty could be easily 
 reconciled with the teaching of the philosophers and 
 the principles of the American Constitution. All 
 that 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 
 be a person, a subject of right, the holder of sov- 
 ereign power. The sovereignty of the king was one 
 and indivisible, inalienable and imprescriptible; nor 
 will national sovereignty be here different. The 
 Declaration of Rights and the Constitution of 1791 
 say categorically that "the source of all sovereignty 
 resides fundamentally in the nation. . . . Sov- 
 ereignty is one and indivisible, inalienable and im- 
 prescriptible. It belongs to the nation." 14 For very 
 different reasons, it is true, but with significant re- 
 sults, that same theory could be discovered in thq 
 
 14 Art. 3 of Constitution of 1791, tit. iii, art. 1. 
 
12 LAW IN THE MODERN STATE 
 
 principles of the ancient regime and the political doc- 
 trines of Rousseau. 
 
 So the two currents met. When the political phi- 
 losophy of the eighteenth century arrived at conclu- 
 sions identical 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 
 
 So may be defined the basis of public law inher- 
 ited from the Revolution. The nation, as a person, 
 possesses a subjective right in that power to com- 
 mand which we call sovereignty. The state is the 
 organized nation ; it is thence that its sovereignty is 
 derived; and public law (the Staatsrecht of the Ger- 
 mans) is the right of the state which consists of the 
 mass of rulers by which its sovereign personality is 
 made manifest. It is these rules that determine its 
 interior organization, and regulate its relation to 
 other personalities; where those personalities are 
 within its territory they are subordinate to it; where 
 the personality in question is that of another state it 
 has equal validity with its own. 15 
 
 It is clear that if the historical origin of this con- 
 ception is as I have described it, the notion of sov- 
 
 15 [See this view defended in Esmein, Elements de Droit Con- 
 stitutionnel, 5th ed., Introduction.] 
 

 THE ECLIPSE OF SOVEREIGNTY 13 
 
 ereignty must disappear when the circumstances that 
 produced it are no longer effective. The personality] 
 of the nation, which is its basis, was sanctioned by I 
 the law of the Revolution only to conciliate a living* 
 monarchical tradition with the principles of a po- 
 litical philosophy which at that time received the 
 enthusiastic adherence of all thinkers. The mon- 
 archical tradition is almost dead and its supporters 
 cannot revive it. A 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 has persisted beyond expectation 
 under the aegis of causes which can only be described 
 as quasi-religious in character. In his famous work 
 on the Revolution, de Tocqueville called one chap- 
 ter "How the Revolution, though political, evolved 
 a religious Revolution: The causes of this phenom- 
 enon." "Because," he says, "it seemed to tend 
 rather to the regeneration of the human race than to 
 the mere reform of France, it awakened a passion 
 more violent than the greatest political revolution 
 had thus far been able to produce. ... As a conse- 
 quence it became a kind of new religion, imperfect 
 indeed, without a God, without dogma, and with no 
 independent life. Nevertheless, like Islam, it flung 
 its soldiers, its apostles and its martyrs over the face 
 of the world." The basic dogma of the Revolution- 
 ary religion was the principle of national sovereignty. 
 
 16 Chapter III. 
 
14 LAW IN THE MODERN STATE 
 
 It was because it was accepted as a new faith, that it 
 was able, even though the product of a peculiar his- 
 torical environment, not merely to obtain acceptance 
 but even to survive the circumstances that produced 
 it. 
 
 It is of course true that all great social and politi- 
 cal movements have in some 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 
 ideal. They give to that idea a superhuman and 
 mysterious quality which inflames the imagination ^ 
 .of the crowd, above all at those times when man's /< 
 $r perennial need of faith seems deepest. Sgsne4 -hat y 
 
 0- death 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 na- 
 tional sovereignty is of a very different calibre. It 
 awakens the enthusiasm of men. It overturned the 
 foundations of the old monarchical Europe. It in- 
 spired every political constitution of which the mod- 
 ern world gives evidence. Its influence has even 
 "Notre Jeunesse (1910). 
 
THE ECLIPSE OF SOVEREIGNTY 15 
 
 been felt in that closed 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. Inev- 
 itably sooner or later its creative fecundity is ex- 
 hausted; reality claims its kingdom. In our own 
 time, with the 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 character, nevertheless, of national sov- 
 ereignty has given to it, even in its untruth, an active 
 power for longer than it could otherwise have pos- 
 sessed. But its creative virtue as a principle of ac- 
 tion and of progress is passing away. It is in too 
 evident contradiction with definite facts. It is pow- 
 erless to protect us against those who hold political 
 power. It cannot secure from the governing class 
 the necessary assurance that the organisation and 
 operation of public services will be adequately per- 
 formed. 
 
 VII 
 
 With some rare exceptions there was no class or 
 party in the nineteenth century which did not accept 
 national sovereignty as a religious dogma. It is in- 
 deed true that those who drew up the preamble of 
 the Charter of 1814 affirmed the permanence of the 
 monarchical principle and divine right; but that was 
 a platonic concession to the wishes of Louis XVIII 
 and it deceived no one; 1830 was the re-statement of 
 
l6 LAW IN THE MODERN STATE 
 
 the principle of national sovereignty. The doctri- 
 naires of course criticised with vigorous penetration 
 the fruitless artificiality of this conception of sov- 
 ereignty; 18 but its criticisms had no practical result. 
 We ought yet to cite a passage from a speech of Royer 
 Collard delivered in 1831, when the proposed Peer- 
 age Bill was under discussion : "The majority of in- 
 dividuals," he said, "the majority of wills, cannot be 
 sovereign. If they are sovereign let us frankly ad- 
 mit that the sovereignty of the people is only the sov- 
 ereignty of force, the most absolute form of absolute 
 power. But societies are not merely numerical col- 
 lections of men and wills. They are not merely 
 made up of numbers. They have a bond stronger 
 than that; they have the privileged right of human- 
 ity, and the legitimate interests born of that right. 
 . . . The will of one, the will of some, the will of all 
 is only force less or more in its strength. We deny 
 that any obedience, any respect is 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 over- 
 thrown. Universal and equal suffrage and the ma- 
 jority principle which is illogically deduced from it 
 
 18 [Cf. Duguit, Law and the State, 31 Harv. L. Rev., chap, ix, 
 and my Authority in the Modern State, ch. iv.] 
 
 19 Archives Parlementaires, 2nd Series, Vol. 70, p. 360. 
 
THE ECLIPSE OF SOVEREIGNTY 17 
 
 took deep root in France. From France it has 
 spread over the whole world. 
 
 There has come a change. With the beginning of 
 a new century the clear and decisive question is de- 
 fined by asking what reality this principle of sov- 
 ereignty possesses. It has been ably and boldly crit- 
 icised. August Comte tilted in his powerful fash- 
 ion against it. "In the thirty years of my philosophi- 
 cal 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 syndical- 
 
 ism. 20 
 
 The former do not deny the existence of public 
 power. They urge, however, that it does not belong 
 and cannot belong to the nation, which, from its na- 
 ture, is incapable of self-government. It can belong, 
 as French tradition has long taught, only to a na- 
 tional king whose dynastic interest is at one with the 
 interests of the country. From the positivist stand- 
 point, Deherme has arrived at the same conclusion, 
 though he substitutes a dictator for kingship. The 
 syndicalist attacked the very principle of political 
 power and, drawing their inspiration from Proud- 
 hon, urge that economic organization ought to re- 
 place and is replacing the idea of political organiza- 
 
 20 [See this well discussed in D. Parodi, Traditionalisme et 
 Democratic.] 
 
l8 LAW IN THE MODERN STATE 
 
 tion. I cannot here discuss these doctrines in detail; 
 and that task is rendered the less necessary by the fine 
 analysis of M. Guy-Grand. 21 
 
 Of course these theoretical attacks would be fruit- 
 less if the 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 so- 
 cial and political change that we are witnessing, and 
 with the disappearance of its efficacy, it has become 
 even harmful. 
 
 There are innumerable social and political facts 
 with which the Revolutionary theory of sovereignty 
 is incompatible. I will take only the most striking 
 which group themselves under two heads: (i) Na- 
 tional sovereignty implies an exact correspondence 
 which in fact is often non-existent between state and 
 nation; (2) national sovereignty is by definition one 
 and indivisible; it implies the suppression in the na- 
 tional territory of all groups exercising independent 
 control. It is however obvious that where there is 
 decentralisation or federalism such groups maintain 
 a vigorous existence. 
 
 That there is often no correspondence between 
 state and nation can be immediately shown. Some- 
 times the same government controls several distinct 
 groups each of which is undeniably a nation. Often 
 enough these nations are even rivals and remain 
 united only by their common subordination to supe- 
 rior power. Of such a condition the Austrian Em- 
 
 21 Le Proces de la Democratic (1909). 
 
THE ECLIPSE OF SOVEREIGNTY 19 
 
 pire is a striking example. It is an agglomeration of 
 nations each with a clear individuality of its own. 
 No 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 
 Italians of the Trentino and Istria, the Poles of Ga- 
 licia, the Serbs of Bosnia and Hertzegovina belong in 
 reality to distinct nations. Where is there a collec- 
 tive will of which the nation is the subject? Nobody 
 doubts that there is 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 
 a single nation organised as a state. What we have 
 is rather a government imposed on three distinct na- 
 tions. 
 
 Again the power of government is exercised over 
 a large number of individuals who, without forming 
 an autonomous nation, do not favor part of that na- 
 tion of which the state is principally composed. 
 Every government exerts power over men who are 
 not subject to it but merely found on its territory. 
 The inhabitants of colonies are subject to the mother 
 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 or- 
 dinary theory of national sovereignty; but the very 
 
20 LAW IN THE MODERN STATE 
 
 basis of that theory implies that public power can be 
 exacted only over the members of that nation which 
 creates it. 
 
 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. 
 Since the nation is a person and its will is sovereign 
 political power, it concentrates in itself all right to 
 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 men- 
 tion the first article of the preamble of the third 
 clause of the Constitution of 1491, which has already 
 been cited: "Sovereignty is unified, indivisible, in- 
 alienable and imprescriptible. It belongs to the na- 
 tion and neither a part of the people nor an indi- 
 vidual can claim its exercise." But this principle is 
 inconsistent with two facts of increasing importance 
 in the modern world decentralisation and federal- 
 ism. 22 To-day many countries with a unitary sys- 
 tem of government, and particularly France, move 
 in the direction of a large decentralization. Feder- 
 alism is almost the common law in America. In Eu- 
 rope, Switzerland and the German Empire are al- 
 ready Federal states and the system is without doubt 
 
 22 [Cf. my Problem of Sovereignty, Appendix.] 
 
THE ECLIPSE OF SOVEREIGNTY 21 
 
 destined to expand. In the usual theory of sov- 
 ereignty regional decentralisation, with which alone 
 I am concerned at the moment, is a system in which 
 certain local groups, varying in character and num- 
 ber according to the state in question, exercise cer- 
 tain prerogatives by means of organs and agents re- 
 garded as representatives of the local group ; but their 
 activity is more or less strictly controlled by the supe- 
 rior authority. The French Commune is a very clear 
 example of a local and decentralised group. It holds 
 real rights of sovereign character: it has a police 
 power, it can levy taxes, it has the privilege of emi- 
 nent domain. These powers are exercised by organs 
 and agents as representatives of the commune. 
 Whatever may be said, this is the flagrant contradic- 
 tion to the conception of a unified and indivisible na- 
 tional personally exercised sovereign power. It has 
 been skillfully suggested, in the effort to conciliate 
 such a disharmony, that the national state volun- 
 tarily concedes a part of its sovereignty, that it de- 
 termines how much it will concede and that it can 
 always take it back; all of which is taken to mean that 
 an indivisible sovereignty is thus implicitly re- 
 served. 23 The fact, however, still remains that while 
 the concession operates there is on the national terri- 
 tory a public person possessing certain sovereign 
 powers which yet forms a part of the national person. 
 
 23 [This is the strict juristic fact. Cf. the classic chapter on 
 Non-Sovereign Law-making Bodies, in Prof. Dicey's Law of the 
 Constitution 1 . 1 
 
22 LAW IN THE MODERN STATE 
 
 But this cannot be the case if sovereignty is one and 
 indivisible. To avoid the disharmony, it has been 
 urged that these decentralized groups are not really 
 sovereign, that though they exercise sovereign power, 
 sovereignty itself remains undividedly attached to the 
 indivisible national person. This is the merest quib- 
 bling. In point of fact local groups qua local groups 
 cannot exercise sovereignty. The only persons who 
 can are local agents, because they alone have a real 
 will. It is therefore urged that the state remains 
 completely sovereign, that the local agents are state 
 agents and not representative of the local groups and 
 there is no longer therefore any decentralisation in 
 the current sense of the term. 
 
 As to federalism more even than regional decen- 
 tralisation it negatives the idea of state sovereignty. 
 It is essentially constituted upon the basis that there 
 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 fed- 
 eration. 
 
 Some thinkers are so hypnotised by the dogma of 
 the sovereign personality of the nation-state that 
 they do not even see this contradiction. M. Esmein 
 declares that "in unitary states sovereignty is one. 
 The federal state, on the other hand, although corre- 
 sponding to a real national unity, divides its sov- 
 ereignty. . . , Certain attributes of sovereignty are 
 
THE ECLIPSE OF SOVEREIGNTY 23 
 
 taken by the constitution from the participating states 
 and transferred to the federal state." 24 M. Esmein 
 urges that this is natural. But the German and Swiss 
 thinkers who are face to face with the 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 constit- 
 uent states are states and that the German Empire is 
 not an empire at all. 25 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 writ- 
 ers 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 uni- 
 tary country and a constituent state in a federal coun- 
 try. 26 This again is contrary to obvious facts; and 
 even if it were true, it would explain nothing; but 
 the difficulty would still remain that the mere fact 
 of decentralisation is incompatible with state sov- 
 ereignty. 
 
 Two great students of public law, Laband and 
 Jellinek, have tried to solve the problem by saying 
 that there can be and are non-sovereign states. 27 In 
 this view the constituent states of a federation are 
 
 24 Op. cit. (5th edition), p. 6. 
 
 25 Seydel, Kommentar zur Verfassung-Kunde fur das deutsche 
 Reich (1st ed.), pp. 6, 23. 
 
 26 Borel, Souverainete et 1'Etat Federatif (1886). 
 27 Laband, Droit Public, 1, 5f. Jellinek, Allgemeine Staats- 
 lehre (2nd ed.), p. 470f. 
 
24 LAW IN THE MODERN STATE 
 
 states but not sovereign because the central state alone 
 possesses sovereignty. They try to show that sov- 
 ereignty is not the whole of public power but only a 
 certain quality of it. Despite their effort, the at- 
 tempt is fruitless simply because neither Laband nor 
 Jellinek explains the differences between a decentral- 
 ised area and a constituent state in a federation. In 
 any case the doctrine would explain nothing, because 
 the real difficulty is to show how public powers, 
 either in federalism or in decentralization, admit of 
 division. 
 
 It is without result that Gierke in Germany 28 and 
 Le Fur in France 29 have exhausted the resources of 
 ingenious subtlety to explain the difference between 
 the unitary and the federal state even while the sov- 
 ereignty of the latter remains one and indivisible. In 
 their view the federal state like the unitary state 
 shows a correspondence between state-unity and na- 
 tional unity. There is only one state as there is only 
 one nation; there is only one sovereign person the 
 nation organised as a federated state, but the feder- 
 ated state is itself a corporation of states; they com- 
 bine to form the sovereign personality of the federal 
 state. They are like the citizens in a unitary demo- 
 cratic state. They participate and this is the typi- 
 cal trait in the formation of a state-will. As a con- 
 sequence they are related not merely to the exercise 
 of sovereignty but to its very substance. 
 
 28 Jahrbuch de Schmoller, VII, 1097. 
 29 L'Etat Federal, p. 697 i. 
 
THE ECLIPSE OF SOVEREIGNTY 2 
 
 In truth, this is the merest dialectic without rela- 
 tion to reality. No one can define the substance of 
 sovereignty. To equate the state in a federation to a 
 citizen in a unified democratic state explains just 
 nothing at all. Nor does this doctrine explain any 
 better than the others how, if sovereignty is the indi- 
 visible will of the nation, local groups can possess 
 some of its prerogatives. 
 
 We have dwelt on this problem because it is de- 
 fined for the modern publicist as the root of all prob- 
 lems. Immense efforts have been made to solve it. 
 They have only shown that there is an implacable 
 disharmony between the concept of sovereignty and 
 the facts of actual life. 
 
 IX 
 
 This insoluble antinomy is not the cause which has 
 destroyed the idea of sovereignty. It might even 
 have persisted despite everything if men had believed 
 in its practical efficacy. The exact contrary is the 
 case. The modern conscience clearly feels that what 
 we demand from the state cannot find its judicial 
 sanction in any system that is so derived. 
 
 A legal system is real only in the degree in which- 
 it creates and sanctions rules satisfying the needs of 
 men in a given society at a definite moment of time. 
 It is no more than the product of these needs; for if 
 this is not the case, or if it does not secure the satis- 
 faction of them,, it is the artificial construction of a 
 
26 LAW IN THE MODERN STATE 
 
 law-giver and a jurist and so without validity or 
 force. Any system of public law can be vital only so 
 far as it is based on a given sanction to the following 
 rules : First, the holders of power cannot do certain 
 things ; second, there are certain things they must do. 
 Men feel to-day profoundly convinced that an im- 
 perialist system of public law can give no security 
 that these rules can be established. They feel that be- 
 cause criticism has shown the decline of the doctrine. 
 They understand its futility because actual facts have 
 demonstrated that the theory of the sovereign state 
 cannot protect the individual against despotism. It 
 is of course true that when in 1789 the National As- 
 sembly proclaimed and defined the dogma of sov- 
 ereignty, its main thought it is its chief claim to 
 fame was to determine at once the basis and extent 
 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 
 autonomy of the individual will we call liberty. 
 They affirmed that the right of the state is limited by 
 the right of the individual and that the state can act 
 only to protect only to the degree in which it does 
 protect that liberty. But individual liberty must it- 
 self be limited ; the most extreme individualists admit 
 that only upon this condition the social life becomes 
 possible. If, then, individual liberty limits the sov- 
 ereignty of the state it can only be up to a certain 
 degree, since it is itself limited. There thus arises a 
 twofold question: In what degree is liberty to be 
 
THE ECLIPSE OF SOVEREIGNTY 27 
 
 limited? What guarantee have we that this limita- 
 tion will not be arbitrary? The answer, and it is the 
 only possible answer, is that individual liberty can be 
 limited only in the degree involved in the protection 
 of general liberty. It is admitted that this limita- 
 tion can be made only by the law, that is to say, by a 
 general resolution voted by the nation or its repre- 
 sentatives. (Declaration of the Rights of Man 
 [1789], Articles 4 and 6.) 
 
 But these, as experience has shown, are the frailest 
 of guarantees. That doctrine which postulates as 
 fundamental the completest individualism has to- 
 day but few adherents. Most men see in it only an 
 abstract argument defended just as all such doctrines 
 find their defenders, but not otherwise. That is only 
 to say that it is a dead doctrine. Assuredly there is 
 some guarantee in a law limiting individual liberty. 
 Its very generality protects the individual against 
 partisanship in government. But the men of 1791 
 believed law to be infallible because, to them, it was 
 the very will of the nation. Experience, however, 
 has shown that they were completely wrong. If a 
 law is voted directly by the people, it is the work of a 
 passionate, eager crowd possibly without relation to 
 justice. It is true that Rousseau said 30 that "the sov- 
 ereign being formed only of private citizens neither 
 has nor can have interests opposed to theirs; as a con- 
 sequence, sovereign power need not give guarantees 
 to its subjects since it is impossible that a body should 
 
 30 Social Contract, Bk. I, ch. viu 
 
28 LAW IN THE MODERN STATE 
 
 desire to harm all of its members." To-day this 
 reads as no more than a tragic sophistry. 
 
 There is no greater guarantee if the law is passed 
 by an elected parliament. Parliament indeed has 
 rightly affirmed that it represents the national will, 
 but in fact law is the individual work of a few depu- 
 ties. When universal suffrage was established in 
 1848 it was believed in good faith, but naively, that 
 all was saved. The plebiscite of 1851 ratified the 
 coup d'etat. 
 
 The commissions, general surety laws, and briefly 
 the whole despotism of the early years of the Second 
 Empire, enlightened men's minds as to the guarantees 
 to be expected from universal suffrage. 
 
 Indeed the conception of sovereignty has always 
 been, both in theory and practice, an absolutist con- 
 ception. 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 en- 
 force, 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 proposi- 
 tion by a strange piece of sophistry. 
 
 "Whoever," said he, 31 "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 
 to be free." It was in the name of this doctrine that 
 the Convention laid on France the burden of its cruel 
 tyranny; and the two Napoleons did not hesitate to 
 k.I,ch. viu 
 
THE ECLIPSE OF SOVEREIGNTY 29 
 
 invoke popular right as the basis of their despotism. 
 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 sov- 
 ereignty 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. We therefore need a system of public 
 law in which this positive obligation is enshrined. 
 Now in this regard a system based on sovereignty is 
 obviously by its 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 
 peace. In so acting they serve their own interests, 
 since defence against external hostilities and the 
 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 serv- 
 ices, their acts appeared as simply unilateral com- 
 mands. The imperium of the Roman Emperor, the 
 jurisdiction of the Roman magistrate made itself ap- 
 parent above all as a right to command. The kings 
 of France, who inherited the Roman tradition under 
 a different name, inherited the same attributes. 
 When, therefore, in 1789 and 1791 it was desired to 
 determine and analyze the content of governmental 
 activity, it seemed no more than the power to com- 
 
30 LAW IN THE MODERN STATE 
 
 mand; and upon that basis the theory of the three 
 powers was constructed. 
 
 To-day as a result of a complex transformation, 
 due, partly, to the progress of knowledge, and partly 
 to economic and industrial change, the business of 
 government has gone beyond the provision of justice 
 and police and of defence against war. They are re- 
 quired to perform the most numerous and varied 
 services, many of them of an industrial character. 
 They are what the Germans call in their mass Kul- 
 tur: government must perform the activities neces- 
 sary to the development of the individual well-being, 
 physical, intellectual and moral, and the material 
 prosperity of the nation. The interest of government 
 is no longer identical with that of its subjects. It is 
 not opposed to it, but it is, definitely, distinct from it. 
 The result is to create the need of such a system of 
 public law as will implicitly sanction these obliga- 
 tions. But that need reveals the impotence of the 
 imperial system. 
 
 It is true, of course, that in such a system the sov- 
 ereignty of the state is limited by liberty. But to the 
 individual, liberty is a right to develop without hin- 
 drance his physical, intellectual and moral capacities; 
 it is not the right to demand the co-operation of 
 others or of the state either in their development or 
 accomplishment. 
 
 When, moreover, government performs these func- 
 tions what is revealed is not command, the preroga- 
 tive of a sovereign will, or the manifestation of the 
 
THE ECLIPSE OF SOVEREIGNTY 3! 
 
 traditional imperium. When the state provides pub- 
 lic instruction, gives help to the poor, or assures trans- 
 portation, it is difficult to relate these activities nearly 
 or remotely to a power to command. Now, if the 
 state 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 its activities it is 
 never sovereign. 
 
 Yet in those great state services which increase 
 every day educational, the Poor law, public works, 
 lighting, the postal, telegraph and telephone systems, 
 the railways the state intervenes, but it intervenes in 
 a manner that has to be regulated and ordered by a 
 system of public law. But this system can no longer 
 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, at- 
 tached indeed by close bonds to the old but founded 
 on an entirely new theory. Modern institutions, un- 
 der the new and fruitful jurisprudence of the Conseil 
 d'Etat, take their origin, not from the theory of sov- 
 ereignty, 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 law. It 
 is not, of course, a new attitude. So soon as the dis- 
 tinction between 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 jus- 
 tification and meaning of its exercise were therein to 
 be discovered, the implications of the idea of public 
 service were obvious. What is new is the important 
 place that it to-day occupies in the field of law. 
 Here, indeed, is the source of the profound change 
 we have been witnessing. It is no longer an a priori 
 formula. It has become the expression of our actual 
 situation. 
 
 I 
 
 There is one source of information we must not 
 neglect. The doctrines of the theorists and the af- 
 firmations of statesmen have a special significance. 
 They do not, of course, yet suggest any general or 
 precise standpoint, but their hesitations and denials 
 
 32 
 
PUBLIC SERVICE 33 
 
 are sufficiently numerous to be significant. Every- 
 where statesmen are agreed that the theory of the 
 s.tate has entered a new phase. They claim still a 
 right on the state's part to command, but they admit 
 also that it has duties to perform. The theorists in 
 their turn admit that sovereignty no longer occupies 
 the most important place in public law. In the impe- 
 rialist system it was essential to regard the state as a 
 person, for, since public power was a right, a subject 
 of that right was necessary. Now it is said that while 
 the personality of the state can not be absolutely de- 
 nied, its domain ought to be limited, that it is only 
 sometimes a person, that it may on occasion have a 
 dual personality, each distinct in its nature. Hesita- 
 tions and contradictions of this sort show how criti- 
 cal is the transformation that we are witnessing. 
 
 It is needless to multiply citations. We may re- 
 call the speech of M. Clemenceau, then President of 
 the Council, at the inauguration of the monument to 
 Scheurer-Kestner. Recalling the part played by that 
 great citizen in the Dreyfus case, M. Clemenceau 
 spoke as follows : "The die was cast. Already the 
 crowd instinctively turned to the partisans of Barab- 
 bas. And that should give us anxious pause. The 
 idea of number, universal suffrage, seemed to fail us; 
 yet is it not here the very foundation of democracy 
 that we are questioning? Well! let us hasten to say 
 that democracy is not a government by counting heads 
 in the sense in which the partisans of authority inter- 
 pret government . . . democracy must be the gov- 
 
34 LAW IN THE MODERN STATE 
 
 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." x 
 A little time earlier M. Barthou expressed an analo- 
 gous 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, moreover, clear that the urgent movement 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. 3 They 
 perceive quite clearly that we cannot to-day be satis- 
 fied with the over simple notion of a sovereignty 
 which expresses itself in an electoral majority. That 
 is no longer the fundamental principle of public law. 
 On the day (July 10, 1912) when by 339 votes to 217, 
 the Chamber of Deputies adopted an electoral 
 scheme of which the first article provided that depu- 
 
 1 Journal officiel, 4 Feb., 1908. 
 
 2 Quoted in L'Humanite, Feb. 1st, 1906. 
 
 3 rCf. Georges Lachapelle, L'CEuvre de Demain. Paris, 
 1917.] 
 
PUBLIC SERVICE 35 
 
 ties 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- 
 fluence of corruption and to support the administra- 
 tion against political intrigue. What, above all, it 
 meant was the recognition by the French Chamber 
 that majority rule is no longer the fundamental prin- 
 ciple of modern democracy; that the idea of national 
 sovereignty, so intimately connected with it, is no 
 longer the basis of the theory of the state. 
 
 II 
 
 If the belief of statesmen in the dogma of sov- 
 ereignty has been thus profoundly shaken, that of the 
 jurists is not less so. One only remains unmoved 
 amidst the ruins of an ancient system. In the nu- 
 merous editions of his book on Constitutional Law 
 M. Esmein writes with always the same calm and 
 strong certainty: 4 "The state is the legal personifi- 
 cation of the nation, ... it is the subject and the 
 basis of public authority. The basis of public law 
 is 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 
 quality is its relation to sovereignty." 
 
 4 Droit Constitutionnel, 5th ed., pp. 1-2. [The words remain 
 unchanged in the sixth edition.] 
 
36 LAW IN THE MODERN STATE 
 
 The same doctrine is accepted by many German 
 theorists and notably in the writings of Laband. 
 What M. Esmein calls sovereignty, however, they 
 call public power and they reserve the former term 
 for certain characteristics of the latter. With these 
 subtle distinctions we have no concern. The doc- 
 trine, with both, is fundamentally the same. But 
 while M. Esmein accepts it as a result of observations 
 that are as certainly inaccurate as they are undoubt- 
 edly conscientious and impartial, the attitude of most 
 German jurists is derived from their desire to give 
 at least the appearance of legality to the imperial au- 
 tocracy. 5 
 
 French publicists have clearly perceived the di- 
 rection of this change even while they have hardly 
 dared to admit it to themselves. They retain the no- 
 tion of sovereignty but under the pressure of facts 
 they reduce it to a nullity. Sometimes while they 
 deny the personality of the state they desire to main- 
 tain 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 sov- 
 ereignty. 
 
 So long ago as the sixth edition of his Precis de 
 
 5 Laband, Droit Public, above all, Vol. I. [See this well 
 brought out in Joseph Berthelemy: Les Institutions Politiques de 
 rAllemagne Contemporaine, 1915.] 
 
PUBLIC SERVICE 37 
 
 Droit administratlf (1909), M. Hauriou has written 
 that "sovereignty and law are no longer of primary 
 importance since they do not any longer fundamen- 
 tally 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 it impossible for us to attack at its root the be- 
 lief in the absolute power of the general will. Few 
 false doctrines have had so evil an influence as that 
 doctrine." This is surely the formal condemnation 
 of traditional belief, but the basic notion of a new 
 system, as M. Hauriou states it, is even more strik- 
 ing. He admits that there is a power to command, 
 but he does not make that power a subjective right; 
 he does not create a juristic person as the subject of 
 that pretended right. What he does see is an actual 
 power to compel. "The whole social organisation 
 of a country," writes M. Hauriou, 6 "economic no less 
 than political, derives from a mass of established sit- 
 uations kept constant by this power to compel. . . . 
 The real function of this power is to create and to 
 protect certain states of fact. It is too often re- 
 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 
 stability. . . . This function it fulfils with more or 
 less success. Power is legitimate when the fulfilment 
 is adequate." 
 
 6 Principes de Droit Public, 1910, pp. 78-9. 
 
38 LAW IN THE MODERN STATE 
 
 These quotations make clear the essential drift of 
 M. Hauriou's thought. Clearly, for him, sovereign 
 power is no longer the essential element in public 
 law. The personality of the state 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. This 
 social function is the very basis of the idea of public 
 service; so that M. Hauriou practically recognises 
 that public service is the only adequate foundation 
 for a modern system of politics. 
 
 The same tendency is clear in the work of M. Ber- 
 thelemy. Like M. Hauriou, he makes the person- 
 ality of the state exclusively patrimonial in charac- 
 ter. He does not deny the existence of public power ; 
 but again public power is not, for him, a subjective 
 right. "Governmental acts," he says, 7 "do not imply 
 the existence of a juristic person in whose name they 
 are performed. . . . The idea of personality is in- 
 dispensable only when we try to present the state as a 
 subject of rights. Persons only have rights; the use 
 of power is in no sense the exercise of rights. A civil 
 servant who gives an order does not exercise a sov- 
 ereign right. What he does is to fulfil his functions 
 and then, if you will, the 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 com- 
 
 7 Droit Administratif (7th ed.)> pp. 41-2, 
 
PUB LIC SERVICE 39 
 
 monly called power or sovereignty is simply a func- 
 tion of the organs that build up the state, he distin- 
 guishes between functions based on the right to com- 
 mand 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 in- 
 sist that sovereign power is a function and not a sub- 
 jective 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 func- 
 tion 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 in fact already clear. They consist es- 
 sentially in the existence of a legal obligation of the 
 rulers in a given country, that is to say of those in 
 fact who possess power, to ensure without interrup- 
 tion the fulfilment of certain tasks. This idea, as we 
 shall see, solves every problem by which we are 
 to-day confronted in public law and thus is self- 
 demonstrative; nor do we desire any other proof of 
 its accuracy. But, for precision's sake, it is impor- 
 tant to discuss (i) who are the rulers; (2) what is 
 
40 LAW IN THE MODERN STATE 
 
 the basis of the obligation which is imposed upon 
 them; (3) what is the purpose of this obligation. 
 
 Who are the rulers? From what has already been 
 said it is clear that in actual fact they are not the rep- 
 resentatives of a sovereign and collective person 
 called the nation. We no longer believe in the dog- 
 ma of national sovereignty any more than in the 
 dogma of divine right. The rulers are those who 
 actually have the power of compulsion in their hands. 
 Why and how do they possess it? These are ques- 
 tions which can receive no general answer. The fact 
 of possession is the product of historical, economic, 
 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. It therefore follows that power 
 is not a right but simply an ability to act. Right 
 could be assumed when we believe that it came from 
 a divine investiture or from a delegation of a col- 
 lective personality and as such had a will superior 
 to individual wills. 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 govern- 
 ment has passed away, its obligations remain. In 
 every age the mass of men felt that the holders of 
 power could not legitimately exact obedience save in 
 
PUBLIO SERVICE 41 
 
 return for certain services and to the degree in which 
 they perform those services. Times without number 
 social classes have lost political power because they 
 no longer rendered the social services which were 
 the conditions of its existence. 8 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 
 of the modern state, the legal basis of these obliga- 
 tions. It would of course be easy to postulate a 
 moral obligation based on one or other of current 
 ethical systems. But no ethical system escapes criti- 
 cism. Any ethical solution is the result of a per- 
 sonal impression, 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 obliga- 
 tion that is imposed on government; it is also a legal 
 obligation which can be given a scientifically organ- 
 ised sanction. When this scientific sanction exists 
 we have the right to assume that the legal obligation 
 of government is a reality. 
 
 It is probable that when individualism was the 
 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- 
 
 8 [See this well put in Mr. Brooks Adams' Theory of Social 
 Revolutions, 1913.] 
 
42 LAW IN THE MODERN STATE 
 
 tern since it is at bottom simply a metaphysical hy- 
 pothesis. Nor can it give rise to any other than a 
 negative obligation when our requirement is some- 
 thing positive. Rousseau, the high priest of indi- 
 vidualism, realised this when he admitted that the 
 right of the individual cannot limit the omnipotence 
 of the general will. "It is contrary to the nature of 
 the body politic," he said, 9 "for the sovereign to im- 
 pose 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, 10 they urge "that it is an 
 undoubted truth that there is no right without sov- 
 ereignty, above sovereignty, or coequal with it. Sov- 
 ereignty makes law." 
 
 This is in no sense true. To the modern mind such 
 a conclusion generates no more than protest. Since, 
 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 deter- 
 mined that it shall not be otherwise. We may, as- 
 sert that fact because, as I shall show, we have spon- 
 taneously organised the institutions of the modern 
 
 9 Social Contract, Bk. I, chap. vii. 
 
 10 Grundziige einer Allgemeine Staatslehre (1873), p. 14, 
 
PUBLIC SERVICE 43 
 
 state simply to give a positive sanction to these obli- 
 gations. Sociological jurisprudence has sought to 
 determine the facts from which they are derived. 
 Personally, it seems to me clear that its real basis is 
 social interdependence. 11 That attitude doubtless is 
 open to serious objections; the fact still remains that 
 it is a conception which provides a suggestive solu- 
 tion to 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 piofound 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 
 does not affirm the existence of a social conscience 
 distinct from individual consciences. So to affirm 
 would be to enter upon a dangerous metaphysical 
 adventure. 
 
 If it is certain that governmental power, has very 
 diverse causes, material, economic, moral, religious, 
 it seems equally clear that it can only maintain itself 
 in any durable fashion through the belief of its sub- 
 jects that their rulers perform their functions. This 
 is true whether the belief is accurate or not. Super- 
 stition and 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 
 
 11 Cf. my L'Etat, Vol. I, p. 23f. Traite de Droit Constitu- 
 tionnel, Vol. I, p. 14f, 
 
44 LAW IN THE MODERN STATE 
 
 public law which, it is worth noting, is quite outside 
 the realm of the social contract. That theory sug- 
 gested 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 va- 
 ries 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 a relation so clearly under- 
 stood and desired as in itself to provide a sufficient 
 basis for the legal duties of government. All over 
 the world to-day every ruler, emperor, king, presi- 
 dent, minister, parliament, holds power not for his 
 own but for his subjects' advantage, and the idea is so 
 widespread that every statesman repeats it to nause- 
 ation even while in fact he tries to obtain the greatest 
 advantage from his position. 
 
 IV 
 
 Public services are those activities that the govern- 
 ment is bound to perform. What are the nature and 
 extent of these functions? To this question, as I 
 pointed out in 1911, no general answer is possible. 
 "The content of public services is always varying 
 
PUBLIC SERVICE 45 
 
 and in a state of flux. It is even difficult to define the 
 general direction of such change. All that can be 
 said is that with the development of civilisation the 
 number of activities related to public need grows and 
 as a 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 be- 
 cause government alone can make civilisation a thing 
 of meaning." 12 
 
 I have observed above that the government must 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 ar- 
 rangement which usually assures a satisfaction of all 
 social needs. For such theories the facts are too 
 strong; the modern attitude refuses to accept them. 
 It has other demands, as, for example, a demand that 
 the state no longer regard education as a private af- 
 fair and, in the material field, that the state organise 
 the work of charity. 
 
 The profound economic and industrial change that 
 
 12 Of. my Traite de Droit Constitutionnel, Vol. I, pp. 100-1. 
 
46 LAW IN THE MODERN STATED 
 
 has taken place over the world has created new gov- 
 ernmental obligations. 13 The clear interdependence 
 of peoples, the solidarity of economic interests, grow- 
 ing commercial relations, the circulation on all hands 
 of intellectual ideas and scientific discoveries, im- 
 pose on the state the duty of organizing such public 
 services as will permanently assure international com- 
 munication. So in the modern state the postal and 
 telegraph system has become a public service of pri- 
 mary importance. That service, indeed, brings out 
 clearly the legal nature of the obligation internally 
 and internationally, that is imposed upon the modern 
 state. It shows the solidarity of the rights and obli- 
 gations by which nations are linked together. 
 
 Within each state, an economic transformation has 
 occurred which may be briefly characterised by say- 
 ing that in almost every field of activity a national 
 economy has replaced a domestic economy. As a re- 
 sult, men of the same social group are made more de- 
 pendent 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 rela- 
 tions 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 
 
 13 [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 47 
 
 has passed when each man was his own public car- 
 rier. To-day to whatever social class he belongs he 
 looks for transportation, whether of himself or of his 
 possessions, to groups charged with this service. 
 Both our habits and our economic needs cannot suf- 
 fer even the shortest suspension; and this makes plain 
 every day the greater necessity of organizing trans- 
 portation into a public service. In the great towns 
 we need tramways and a public motor service; 
 throughout the country we need railway service. 
 Transportation, like the post office, tends to become 
 international in character. Not only public lighting 
 but also private have been similarly transformed. 
 The peasant in the Hinterland of Auvergne and Brit- 
 tany is no longer content with the little oil or wax 
 candle by which his parents' home was lighted. The 
 time is not far distant when every house will demand 
 electric light. So soon as this becomes a primary 
 need it will create a new subject of public service. 
 The invention of white oil has caused an economic 
 and industrial revolution which is only at its begin- 
 ning; and the transportation of electric energy will 
 certainly be governmentally organized in the near fu- 
 ture. It is this that explains the great law of June 
 15, 1906, on the distribution of electric energy. 
 
 We need not insist on these economic considera- 
 tions. 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 
 
48 LAW IN THE MODERN STATE 
 
 of the state was something more than defence and in- 
 ternal tranquillity. It is to-day clear that the policy 
 of the state must be determined by its total environ- 
 ment. A public service, then, may be defined as fol- 
 lows: Any activity that has to be governmentally 
 regulated and controlled because it is indispensable 
 to the realisation and development of social solidarity 
 is a public service so long as it is of such a nature that 
 it cannot be assured save by governmental interven- 
 tion. 
 
 Were there need of a formal criterion by 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 serv- 
 ice. Similarly, the English miners' strike of 1912, 
 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. 
 
 V 
 
 Such is the nature of the profound change that is 
 taking place in public law. Public law is no longer 
 
PUBLIC SERVICE 4-9 
 
 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- 
 tory as a sovereign dealing with 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 relations of sovereign to subject do not make 
 their appearance. The one governmental rule is the 
 governmental obligation to organize and control pub- 
 lic services in such a fashion as to avoid all disloca- 
 tion. 
 
 The jasis nf public law is therefore no longer com- 1 
 mand but organi&atkua. Public law has become ob- 
 
 jective jusraTprTv^te law is no longer based on indi- 
 vidual 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 func- 
 tion to fulfil. 
 
 The consequences of this conception are immedi- 
 ately clear. Their detailed examination will show 
 that the formula I have suggested is npt merely a 
 theory but actually an induction from the facts. It 
 follows that if governmental action is not the exer- 
 cise of a right to power it has no special character. 
 What quality it possesses, what effect it produces are 
 derived from the end it has in view. This in its turn 
 determines the nature of law. In all the imperialist 
 system law is essentially the manifestation of sov- 
 ereignty. It is above all a command formulated bj 
 
50 LAW IN THE MODERN STATE 
 
 the sovereign and so imposed upon his subjects. 
 That is no longer the case. Lawjs simply 
 mulation of a-ule the product 
 
 r a^!TWKcF'government belieyeaJiecessary, as a rule, 
 'uncler the pressure of public opinion/in order to give 
 itself the greatesFpossible strength. Most laws are 
 irTreality passed to organize and operate public util- 
 ities. Law is thus above all a law of public service. 
 
 The importance of this theory is obvious. It sets 
 the method in which law to-day functions in a clear 
 light. Government is legally obliged to ensure the 
 operation of public utilities. It issues for this pur- 
 pose general rules called laws. Their character is 
 derived from the end government sets before itself. 
 The rulers themselves are inviolable. The private 
 citizen can only use a public service as the law pro- 
 vides and government can do nothing which may pre- 
 vent its legal operation. That is to say that public 
 utilities are institutions of objective law. 14 
 
 Administration thus takes its character from its 
 relation to an end connected with a public utility. 
 We must, of course, distinguish between administra- 
 tion property called and an act performed by a hum- 
 ble servant of that government. Both of them, how- 
 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 
 different kinds of administrative acts. Above all, 
 
 14 Cf. Hauriou, Droit Administratif (5th ed.), p. If; and 
 Principes de Droit Public (1910), p. 124f. 
 
PUB LIC SERVICE Ji 
 
 we need make no distinction between acts of admin- 
 istrative authority and those in which the humble 
 official 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 for- 
 mulae the new system may be resumed. Government 
 and its officials are no longer the masters of men im- 
 posing the sovereign will on their subjects. They 
 are no longer the organs of a corporate person issu- 
 ing its commands. They are simply the managers 
 of the nation's business. It should thus be clear, 
 contrary to the usual notion, that the growth and 
 extension of state activity does not necessarily in- 
 crease the government's power. Their business in- 
 creases, their duties expand; but their right of con- 
 trol is extinct because no one any longer believes 
 in it. 
 
 It is true that the organisation and functioning of 
 public utilities is expensive. Government has an 
 immense budget, and wealth is the main element in 
 power. It is indubitable also that the growth and 
 extension of state-functions increase simultaneously 
 both taxation and the area of governmental control. 
 It may be added that since, in a democracy, election 
 is the source of power, and since the number of offi- 
 cials increases necessarily with the number of serv- 
 ices, political considerations make their way in per- 
 
52 LAW IN THE MODERN STATE 
 
 nicious fashion into the realm of administration. If 
 state intervention is regrettable under any system it 
 is deadly in a democratic regime. 
 
 There is truth in all this, but it does not alter the 
 fact. Day by day the intervention of the state grows 
 greater. Theoretically it cannot increase the right 
 of the government to power, for it has no such right. 
 But it is difficult to deny that its power is in fact in- 
 creased. On the other hand is the important fact 
 that this increase of power is counterbalanced, if 
 not outweighed, by the movement towards decentral- 
 isation which is becoming one of the main character- 
 istics of governmental evolution. 
 
 To add to the functions of government is to bring 
 some service under its control with the guarantee that 
 it is to be operated without interruption. That, how- 
 ever, does not involve the immediate and direct sub- 
 jection of its officials to government control. On the 
 contrary, in many old and some new services there is 
 coming more and more to be established a system of 
 decentralisation under divers forms. In some cases 
 the method has been that of local territorial decen- 
 tralisation where the civil service has a regional at- 
 tachment of a more or less rigid character. Some- 
 times 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 operation may be entrusted 
 
PUBLIC SERVICE $3 
 
 to a private citizen acting under government control. 
 
 Alongside this decentralization a movement, of a 
 similar kind, which may be called the industrialisa- 
 tion of government activity has evolved. It acts, of 
 course, only in those services which have an inher- 
 ently industrial character, such as transportation, 
 railways, and the post-office. Where, in France, the 
 railways have been handed over to private compa- 
 nies, this involves also the concession of a special in- 
 dustrial organisation, and it is only by its mainte- 
 nance that the companies can make their profits; for 
 this concession is in reality the same thing as gov- 
 ernmental control. Where the state itself manages 
 the particular service, it tends necessarily to be organ- 
 ised simply upon an industrial basis. It is necessary 
 at all costs to shield it from the poisonous influence 
 of politics to prevent the disorganisation and the 
 financial dishonesty which invariably result. It is 
 clearly necessary that the great railway district 
 should provide continuous service and when it is un- 
 der government control that can only be achieved by 
 administrative and financial autonomy. 
 
 It is in this direction that we have begun to travel 
 with the law of July 13, 191 1, the principle is clearly 
 formulated in Article 41, i. "The system of lines 
 which constitute the state railway system (the com- 
 bination of the former state railways with the lines 
 purchased in the West) together with all those that 
 shall be added by future legislation shall be man- 
 aged by a single administration under the authority 
 
54 LAW IN THE MODERN STATE 
 
 of the Minister of Public Works accounting to the 
 state and endowed with civil personality." It will 
 soon be necessary to give an organisation based on 
 similar principles to the postal, telegraph and tele- 
 phone system, and similarly with all public serv- 
 ices of 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." 15 
 
 In whatever manner the business of the state is 
 managed its fundamental idea is thus clear : govern- 
 ment must perform certain definite functions. As a 
 consequence a public service is an institution of a 
 rigorously objective order controlled by principles 
 equally imposed on the government and its subjects. 
 
 VI 
 
 If all this is true, certain results clearly follow. 
 The legislation and jurisprudence of such countries 
 as are influenced by this movement ought to tend to- 
 wards the organisation of a practical system which 
 shall indirectly constrain government to transform 
 such activities as relate to urgent public needs into 
 
 15 Cf. Alcindor, Revue de Science et de Legislation Financiere, 
 July-Sept., 1910. 
 
PUB LIC SERVICE 55 
 
 public services. 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 taking place in French legisla- 
 tion and jurisprudence. A whole juristic edifice, of 
 which the large outlines are already clear, is being 
 constructed towards this end. That surely is the best 
 proof that our theories are no mere abstraction but 
 the accurate expression of definite facts. 
 
 If any public need ought, as the legal conscience of 
 a people believes, to be organised into a public serv- 
 ice, and if government refuses to act towards that 
 end, what legal appeal lies open to the private citi- 
 zen? Undoubtedly, the idea still dominant in pub- 
 lic law is that the real guarantee is to be found in the 
 electoral and representative system existing to-day, in 
 different degrees, in every civilised country in the 
 world. Upon that, for the most part, the private cit- 
 izen must depend. 
 
 But there are still strange illusions abroad as to the 
 benefits of this system and the guarantees it can af- 
 ford. Of course, this widespread belief is in itself a 
 precious weapon in the hands of private citizens. 
 The press, can bring the strongest influence to bear 
 on parliament; and if public opinion rather easily 
 accepts the abstention of the legislator from action, 
 on the other hand it is rare for government to remain 
 inactive when its intervention is imperiously de- 
 manded. 
 
 But if, after all, the government will not intervene 
 
56 LAW IN THE MODERN STATE 
 
 when it seems clear that its indifference will cause 
 serious dislocation, even for a short time, the private 
 citizen is not entirely helpless. A new legal institu- 
 tion is in process of construction which, in accord 
 with the usual terminology, we may call the respon- 
 sibility of the state. Here, indeed, is the great fact 
 of modern public law, a fact totally foreign to the 
 imperialist theory of the state. The abstention of 
 the state involves responsibility on its part to the citi- 
 zens harmed thereby, even when the state abstains 
 in its legislative capacity. If we merely note the 
 capital importance of this change, it is not because a 
 fuller discussion is not required/ 
 
 Because a statute has been passed to organise a 
 public service and secure its 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- 
 cure the continuity of a public service. That is why 
 every country tends to organise means of defence 
 against statutes. The details of these means I shall 
 discuss in the next chapter. 
 
 But let us suppose that the law has been passed and 
 the public service is in operation. Even when it 
 functions according to statute, the private citizen, 
 where its operation causes him damage, is not de- 
 prived of redress. The great development of public 
 responsibility is here, as we shall see, thrown into its 
 most striking relief. 
 
 If the public service either functions contrary to 
 
PUBLIC SERVICE 57 
 
 statute, or is not put into operation where the law 
 demands it, if, in brief, the law of service is violated, 
 the responsibility of the state is called into play at 
 the private citizen's demand, if, of course, he has been 
 injured. Even when there is no proof of direct 
 prejudice, the law still gives the private citizen the 
 means of legal action. The importance of this is the 
 clear light it throws upon the nature of public serv- 
 ices. This action is important and entirely objective 
 in character. 
 
 Take such a question as the following: has the pri- 
 vate citizen the right to demand the operation of pub- 
 lic services in accordance with statute? This ques- 
 tion has been several times discussed before the Coun- 
 cil of State by the representatives of the Department 
 of Justice. In one of the first of these cases M. Ro- 
 mieu, then counsel for government, argued as fol- 
 lows: 16 "We must then enquire if users have any 
 right to demand the intervention of the administra- 
 tion." So put, the question hardly brings out the 
 real bearing of the problem or, at least, it is so put 
 as to be susceptible of confusion. The question as 
 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 pri- 
 vate citizen in virtue of which he can compel it to 
 perform the duties enjoined by statute. This he 
 
 16 Affaire Croix de Seguey-Tivoli, Decision of Dec. 21, 1906, 
 Sirey, p. 968, 
 
58 LAW IN THE MODERN STATE 
 
 clearly cannot do; and this inaccurate terminology 
 explains the hesitation so clearly felt by the govern- 
 ment representatives. 
 
 The facts are the strongest feature of the situation. 
 Under their empire there is growing up a new rule of 
 law and a new procedure as a result of which action 
 may be made compulsory. The basis of the forma- 
 tion is as follows : the creation and organisation of a 
 public service involves its due operation according to 
 law. Should the administration act contrary to it, 
 every private citizen can by means of an action have 
 that act annulled. This is legal redress of a purely 
 objective kind. That is to say that the private citi- 
 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. 
 
 No legal bond exists between the state and the pri- 
 vate citizen which obliges the state to fulfil his de- 
 mands, but a law, that is to say, a purely general regu- 
 lation, controls the operation of the service and if the 
 state violates that 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, decen- 
 tralized or operated by delegation. The Council of 
 State has hesitated and its formulas are not always 
 
PUBLIC SERVICE 59 
 
 above criticism. But the facts have triumphed and 
 the legal principle I have just described may be con- 
 sidered to-day as finally established. 
 
 We cannot here analyse in detail the jurisprudence 
 of the Council of State upon this point. We can 
 only note that it is, above all other methods, that 
 which is coming to control the evolution of public 
 law. Any realistic study, certainly, must be based 
 upon it; otherwise the solution proposed is merely 
 formal and biased by its artificial preconceptions. 
 The statement of its most characteristic decisions may 
 serve to make this clear. 
 
 The first three related to somewhat peculiar cir- 
 cumstances. A public transportation system was op- 
 erated by delegation to a company. 17 The question 
 involved was whether the public may sue on the 
 ground of ultra vires for acts by which the control- 
 ling authority refuses to exercise his power or violates 
 the law involved. If he can so sue, clearly, the pri- 
 vate citizen has always a legal means of preventing 
 violation of statute even when the act of violation is 
 that of the civil servant in control. Not without hes- 
 itation, the Council of State, in the three cases con- 
 cerned, admitted that the plea can be received. On 
 February 4, 1906, they heard the plea of the residents 
 of the Rue Quatre-Septembre against a decree issued 
 by the Prefect of the Seine on August 25, 1902, which, 
 
 17 By the law of June 11, 1880, Articles 21 and 39, the French 
 tramway services, however managed, are under the strict control 
 of the prefects as government representatives. 
 
60 LAW IN THE MODERN STATE 
 
 contrary to the law, authorized the East Paris Rail- 
 way Company to erect an overhead railway over the 
 surface of the Opera-Place de la Republique. The 
 plea was admitted. 18 
 
 In the next year the Council went a step further. 
 In the earlier cases the plaintiffs had attacked a spon- 
 taneous and positive act of the administrative author- 
 ity. In the case of the Syndicat Croix de Seguey- 
 Tivoli, they attacked the refusal of a prefect to pre- 
 vent, at their request, and conformably to his duties, 
 a tramway company from giving up a car service 
 which, it was claimed, would have been suppressed 
 contrary to the conditions of the company's charter. 
 The Council of State admitted the plea. 19 
 
 In 1907 it admitted the plea of an officer, long dis- 
 missed, against a decision of the Minister for War. 
 The latter had refused to compel the Western Rail- 
 way Company to give the officer a ticket at the re- 
 duced price which article 54 of its bye-laws demands. 
 He claimed that this was illegal ; and the remarkable 
 conclusions of M. Teissier urged that any person 
 whose interests are thereby adversely affected may 
 attack an administrative act which is contrary to the 
 charter of a railway company. That charter, the 
 decision holds, is part of its organic law. 2 
 
 20 
 
 "Conseil d'Etat, Feb. 4, 1805. Recueil, p. 116. 
 
 19 Council of State, Dec. 21, 1906. Recueil, p. 961; Sirey, 
 1907, iii, 33. 
 
 20 Conseil d'Etat, Nov. 15, 1907. Recueil, 1907, p. 820, 
 Revue de Droit Public, 1909, p. 48, 
 
PUBLIC SERVICE 6 II 
 
 VII 
 
 Private citizens can thus use legal means to obtain 
 the regular operation of public services even under 
 private direction. But the same rule holds also 
 where they are directly exploited by the state, or its 
 diverse administrative organs. If the state had re- 
 mained a power which issued sovereign commands, 
 it would be impossible to understand how a private 
 citizen could demand from a sovereign power the in- 
 tervention necessary to secure the organization of 
 public services and their regular operation. But if 
 modern law organizes guarantees on behalf of the 
 private citizen against the state itself, if every one 
 whose interests arc concerned has means of legal re- 
 dress 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 obli- 
 gations implied in public service. 21 
 
 This objective admission of legal recourse against 
 the state where the action of the latter is illegal grew 
 up under conditions of great interest in relation to 
 elementary education. It may be true that educa- 
 tional neutrality is a chimera impossible of realiza- 
 tion. It is not, however, doubtful that the idea of 
 neutrality is in virtue of the great laws of March 28, 
 1882, and Oct. 30, 1886, the essential principle on 
 
 21 [The reader ought to note that M. Duguit throughout uses 
 state as identical 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 THE MODERN STATE 
 
 the organization of elementary instruction. How 
 can a private citizen compel the authorities to give 
 his children an education strictly in conformity with 
 the principle of neutrality? It is of course obvious 
 that if the violation of law is a personal fault of the 
 teacher, the father of the child can make the former 
 responsible. This was definitely established by the 
 Tribunal of Conflicts (June 7, 1908) in the Morizot 
 case. But the circumstances are rarely so clear. 
 The usual situation is for the principle of neutrality 
 to be violated without fault being ascribed to any 
 civil servant. When, for example, the father com- 
 plains that the principle of neutrality is violated 
 by reasons of the University administration giv- 
 ing the students books with a definite tendency 
 either towards actual infidelity or at least of an 
 anti-Catholic nature, if the fact is true, the law of 
 neutrality is obviously violated without there 
 being any personal fault, in the legal sense, com- 
 mitted. 
 
 What is the parent then to do? Can he obtain 
 annulment of this violation? There is no doubt on 
 that head. The question has been brought before the 
 Council of State and its decision conforms to the 
 general direction of this jurisprudence. 
 
 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 was regularly used in the school. The plaintiffs 
 
PUBLIC SERVICE 63 
 
 claimed that the expulsion was wrongly inflicted be- 
 cause the children had refused to use the text books 
 by their parents' orders, since the text books hurting 
 Catholic feelings violated educational neutrality. In 
 six cases the Council of State rejected the plea on the 
 ground that the legal regulations clearly gave the 
 university authorities a right to choose both books 
 and methods in the schools, and that the children who 
 go there must submit to their regulations. The re- 
 fusal of a pupil so to conform constitutes the disci- 
 plinary 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 de- 
 cision must be reproduced because of its perfect clar- 
 ity and characteristic conclusion. "If parents think 
 the school text books are drawn up in violation of 
 that principle of educational neutrality consecrated 
 by the law of March, 1882, as a result of the lay sys- 
 tem then inaugurated, they must bring their claim 
 before the competent authorities. Notably they have 
 the right to demand from the Minister of Public In- 
 struction the rejection from the public schools, con- 
 formably 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 
 of parents a completely protective system against 
 
64 LAW IN THE MODERN STATE 
 
 22 
 
 all possible violations of the law of neutrality. 
 
 In the case where the details are rather interesting 
 the Council has provided an analogous solution. In 
 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 tele- 
 graph service. As a result of quarrels between the 
 postmistress and a householder in the commune who, 
 so the postmistress said, possessed a savage and dan- 
 gerous 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 pow- 
 ers. He asserted that the act was contrary to the law 
 regulating the telegraph service and especially con- 
 trary to the decree of Jan. 12, 1899 according to 
 which telegrams must be given either to their recipi- 
 ent or his representative. To deprive a private citi- 
 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 ele- 
 ments 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 advan- 
 tages of the service. 23 
 
 22 See the six decisions, Jan. 20, 1911, Recueil, pp. 75-7, and 
 April 8, 1911, Ibid., pp. 481-2. Cf. Revue de Droit Public, 1911, 
 p. 69, andSirey, 1911, iii, 49. 
 
 "Decision of Dec. 29, 1911, Revue de Droit Public, 1912, p. 
 38. 
 
PUBLIC SERVICE 6$ 
 
 This legal protection of the private citizen has 
 sometimes been indefinitely organized by statute. 
 The law of July 15, 1883, gives free medical assist- 
 ance ; that of July 14, 1905, assures support to the old, 
 the infirm and the incurable. It is usually said that 
 the law of 1905 recognises that old men and incur- 
 able have a right to support. That, however, is not 
 accurate. The real fact is that the old and the in- 
 firm who are without means have been placed in a 
 definite legal situation. They can compel the an- 
 nulment by the competent authority of an adminis- 
 trative decision, which, when their age, infirmity 
 and poverty have been legally established, refuses to 
 them an allowance or a lodging. Statute thus estab- 
 lishes 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 
 proof of the transformation I have been trying to de- 
 scribe. Because the subjective right of the state and 
 the individual are disappearing, we get the forma- 
 tion of an objective governmental duty in regard to 
 public services, the operation of which is legally 
 guaranteed. 
 
 I am glad to think that, by different methods and 
 in different terms, so eminent a publicist as M. Hau- 
 riou has arrived at exactly the same conclusion, when 
 he says : 24 "the public services are considered in re- 
 
 2 *Principes de Droit Public (1910), p. 94. 
 
66 LAW IN THE MODERN STATE 
 
 lation to the public that makes use of them they con- 
 stitute . . . established situations. The public is 
 not the creditor of the public services ; what it can do 
 is to profit from them. Private citizens have at their 
 disposal a practical means of improving their situa- 
 tion. They can formulate a claim and ask the Coun- 
 cil of State to decree that the authority has gone be- 
 yond its powers; but this practical means does not 
 change the fact that the situation is objective in char- 
 acter." 
 
 It is worth adding that this legal protection of the 
 private citizen has been guaranteed by statute. The 
 administration is practically prohibited from pre- 
 venting judicial action by its own silence. For 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 14, 1900 (Article 3). It was there decided 
 "that in such affairs a case only can be brought be- 
 fore the Council of State by means of an action 
 against an administrative decision. When a delay 
 of more than four months has elapsed without a de- 
 
PUBLIC SERVICE 67 
 
 cision being given the interested parties may consider 
 their request as rejected and sue before the Council of 
 State." So ill-will on the part of the administration 
 cannot prevent the attempt at redress. 
 
 One lacuna in this subject still remains to be filled. 
 It is of course true that the private citizen is com- 
 pletely protected where the administration is made 
 responsible in the large degree which is to-day the 
 case. The Council of State will doubtless annul all 
 administrative decisions contrary to the law under 
 which the service operates. But how is the adminis- 
 tration to be compelled to execute a decision which 
 condemns it? How make an official respect a deci- 
 sion which annuls his act? How can he be prevented 
 from breaking the law a second time? As a rule, of 
 course, the administration will rarely revolt against 
 the legal decision. The prestige and authority of 
 the Council of State are so universally admitted as 
 to command general respect for its decisions. But 
 it is none the less true that to-day there do not exist 
 any means by which the administration can be forced 
 to conform to those decisions. It is essential that in 
 the future these means should be organised and al- 
 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 le- 
 gal and illegal administrative acts have been consid- 
 ered. 25 
 
 25 Cf. chap, vi, below. 
 
CHAPTER III 
 STATUTE 
 
 IN any system of public law founded on sovereignty, 
 statute is its clearest manifestation. Rousseau 
 pointed this out on several occasions. By definition 
 statute is the expression of the general will dealing 
 with a general problem, and because it unites the 
 "universality of its will to the universality of the ob- 
 ject dealt with," it has a limitless power to command, 
 can never be unjust, and should obtain an uncondi- 
 tional and unlimited, obedience. 
 
 "It is," wrote Rovteseau, 1 "thus immediately clear 
 that 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 
 is unjust to himself ; nor need we ask how 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. 
 
 It is of course clear that statutes are necessary. It 
 is equally clear that the flavor of generality which at- 
 taches to statutes constitutes the best guarantee the 
 individual can possess against arbitrary conduct. 
 
 1 Contrat Social, Bk. II, ch. vi. 
 
 68 
 
STATUTE 69 
 
 The essential protection of liberty is a principle 
 which can only be individually varied within cer- 
 tain limits fixed by a general will theoretically for- 
 mulated in advance. In this aspect the new system 
 of public law only gives precision and guarantee to 
 the elements of the earlier system. But, in the lat- 
 ter system, as in Rousseau, statute was the command 
 of the sovereign. As such it*could not be unjust and 
 was not subject to reserve or restriction. No tribunal 
 could take cognisance of the constitutionality of stat- 
 ute. It could not ever be suggested that the state in 
 its legative capacity was subject to responsibility. 
 
 Such a conception was in clear logical accord with 
 the imperialist system. But it is obvious that, if the 
 theory of sovereignty is no longer the foundation of 
 political theory, the conception is obsolete. If, then, 
 in the legal life of the 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 
 show under another aspect the transformation of pub- 
 lic law. 
 
 I 
 
 A statute is a general rule for governing conduct. 
 But because we have to-day eliminated from politics 
 the theories of metaphysics 2 the hypothesis of na- 
 
 2 \_Cf, however, F. Geny, Science et Technique en Droit Prive, 
 Vol. II, ch. v, where it is pointed cut that one of the defects of 
 M. Duguit's work is the absence of an explicit avowal of its implied 
 metaphysic.] 
 
70 LAW IN THE MODERN STATE 
 
 tional sovereignty, that of divine right and of an in- 
 heritance from God, a statute can no longer be the 
 formulated command of sovereign power. A statute 
 ] is simply the expression of the individual will of the 
 men who make it, whether they be the leading states- 
 men or the private members of a legislative body. 
 Beyond that we are in the realm of fiction. In 
 France, for example, statute is the expression of the 
 will of 350 deputies and 200 senators who usually 
 form the majority in the Chamber and in the Senate. 
 Administrative orders, which are, in fact, real laws, 
 express the will of the statesmen or civil servants who 
 issue them. 
 
 This realistic conception of the state necessarily 
 results in a realistic conception of statutes. Of course 
 a statute is universally admitted to possess an obliga- 
 tory, even imperative, force. A statute, it may be, is 
 no longer the order of a superior imposed upon an 
 inferior will. But it still remains true that civil 
 servants and private citizens must obey statutes. 
 The power of compulsion at the disposal of the gov- 
 ernment may necessarily and can legitimately be 
 applied to ensure obedience to them. 
 
 These are not contradictory conceptions. It is 
 clear, as I have pointed out, that there is an objective 
 law superior to government. As soon as a human 
 society exists, the indispensable condition of its main- 
 tenance is a social discipline. While we reject meta- 
 physical theory, it is of course clear that the social 
 
STATUTE 71 
 
 environment necessarily gives rise to a rule of social 
 conduct. But the idea of this social rule is in no 
 sense metaphysical. It does not transcend society. 
 So to argue is to use philosophical terms immanent 
 in it. It is an element of society, or rather it is so- 
 ciety itself. We 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 
 subject to its social discipline. It is, for example, 
 clear that the rule prohibiting such conduct as mur- 
 der, pillage, and arson existed as a rule of right be- 
 fore it was formulated into positive statute. It is 
 clear to all of us that it has an obligatory character, 
 not transcendent and abstract, but based on the facts 
 of life. 
 
 Once that is understood, it becomes clear why a 
 statute compels us to obedience. It is not, techni- 
 cally speaking, a command. It is yet compelling be- 
 cause it formulates a rule of law which is itself the 
 expression of social facts. These are the statutes I 
 have elsewhere called normative. 3 The clearest ex- 
 amples 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 char- 
 acter 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 
 
 3 L'Etat, Vol. I, p. 551 f. 
 
72 LAW IN THE MODERN STATE 
 
 civil code : "Whatever act of one person causes dam- 
 age to another creates by the fault concerned a duty 
 to repair the damage that has been caused." The 
 principles inserted in the different Declarations of 
 Rights are often rules considered superior and ante- 
 rior to the legislator. 
 
 We say that normative statutes are imposed on all 
 because they contain a rule of law every ruler recog- 
 nised at a given place and time. This idea has been 
 remarkably worked out by Prof. Dicey in his fine 
 book on Law and Public Opin_ipn. 4 "There exists at 
 any given time a body of beliefs, convictions, senti- 
 ments, accepted principles, or firmly rooted preju- 
 dices, 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 
 regards at any rate the last three or four centuries, 
 and especially the nineteenth century, the influence 
 of this dominant current of opinion has, in England, 
 if we look at the matter broadly, determined, directly 
 or indirectly, the course of legislation." 
 
 It is not true only of England but for every country 
 in every age. It may be added that if opinion is the 
 essential factor in the making of law it plays this role 
 only when men think that a certain rule is imposed by 
 a social sanction. In other words, public opinion 
 only makes legislation when the individual minds 
 that have formed it possess juristic content. There 
 
 4 Law and Public Opinion (2nd ed.)> p. 19. 
 
STATUTE 73 
 
 comes a moment when the clear necessity of certain 
 rules is so profoundly and generally felt by men that 
 every statute which enacts them is universally admit- 
 ted and possesses for all an obvious character that is 
 obligatory. 5 
 
 It should be added that such normative law must 
 not be confused with custom. Statute and custom 
 are two different things. Statute is the expression of 
 a rule which social needs are elaborating in individ- 
 ual consciences. Sometimes, of course, the same rule 
 finds its first and imperfect expression in a custom 
 to which statute gives later a more precise and com- 
 plete expression. It is doubtless true that the com- 
 pelling power of statute and custom is derived from 
 the same source, but they represent different degrees 
 of the expression of objective law. Often the degree 
 that custom expresses is socially defective and the ob- 
 jective 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 
 character. In itself it is not imperative because it 
 only becomes imperative when definitely enacted as 
 statute. The proof of this, we are told, is that before 
 such conduct became statutory there was no prohibi- 
 tion of acts contrary to it. And acts which conform 
 to it had no legal result. Positive statute would then 
 
 5 Cf. Deslandres, Etude sur le fondement de la loi, Revue de 
 Droit Public, 1908, p. 33, 
 
74 LAW IN THE MODERN STATE 
 
 be more than the simple statement of a social rule. 
 It would be a social rule to which a legal character 
 had been given. 
 
 It is, of course, true that when there is no written 
 statute or, at least, no formulated custom, there does 
 not exist for that rule of law a definite legal sanction. 
 But that does not involve the absence of obligation in 
 that rule of 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 or- 
 ganises to ensure its acceptance. The way in which 
 society organises the sanction is the subject of another 
 kind of law which for want of a better term may be 
 called constructive, 
 
 II 
 
 Constructive laws are simply those which organise 
 public services, and they form the greater part of 
 modern legislation. Perhaps no great inconvenience 
 is involved in the denial that normative laws exist; 
 there would still remain the fact that every general 
 disposition of government which aimed at the organ- 
 isation of a public service would be imposed on all 
 under the legitimate sanction of material constraint. 
 Indeed, in the issuance of such dispositions govern- 
 ment only fulfils the social function incumbent upon 
 it from the situation it occupies. I have pointed out 
 that it is not necessary to know if there is a rule of 
 
STATUTE 75 
 
 law earlier in origin and superior in force to govern- 
 ment. For the same reason we need not enquire if 
 normative laws exist, for if they do they are only the 
 expression of this rule of law. For myself, it seems \ 
 clear that this rule of law and the statutes that are its 
 expression have an actual existence. They must be 
 postulated because we cannot do without them. The 
 very condition of social life involves our organising 
 certain activities with public services; and it is from 
 this that their operation has the social force and value 
 involved in their general rules. 
 
 A conception, Greek in origin, but full of impor- 
 tance in our own time, is here important. We have 
 to know why in the organisation and operation of 
 public services government must lay down general 
 rules and take individual action only within the scope 
 of those general rules. 
 
 The answer is that this is the surest guarantee the 
 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 it is based not only on the general character in- 
 herent in statute, but also upon the purpose it is to 
 serve. It is unified because it is essentially founded 
 on the duty of government to assure the operation of 
 public services. 
 
 In truth, there is no statute which does not organi- 
 cally 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 
 
76 LAW IN THE MODERN STATE 
 
 properly called organic, that is to say of all statutes 
 which regulate the internal organisation of the state. 
 If we admit the personality of the state, and define 
 law as the command of its sovereign will, it is abso- 
 lutely impossible to understand how organic laws can 
 be really laws since the state cannot address a com- 
 mand to itself. 6 On the other hand, however, the 
 compulsion inherent in such regulations is very clear 
 if it is derived from the duty imposed on government 
 to organise means of satisfying social needs. Stat- 
 utes which serve this purpose are obligatory in char- 
 acter simply because of the end they serve. Consti- 
 tutional statutes, and those which regulate general 
 administration, are fundamental because their object 
 is to give the state the best means of serving social 
 needs. 
 
 The same may be said of penal laws. They are 
 par excellence imperative in character; or, rather, 
 they are prohibitions addressed to private citizens. 
 The more closely we perceive them the more it ap- 
 pears that they are not really an injunction addressed 
 to the private citizen. The legislature does not 
 because it cannot tell us how to kill and rob and so 
 forth. It simply organises a public means and set- 
 tles that if an 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 
 
 6 [But in the German theory, mainly associated with the name 
 of Jellinek, of auto-limitation, this is virtually possible.] 
 
STATUTE 77 
 
 it. The penal imperative, as Binding says, 7 is 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 permitted and what is prohibited. Government 
 must assure, as has always been admitted, the in- 
 ternal security of the nation. Its penal legisla- 
 tion is the means adopted to that end and derives 
 therefrom its character of legitimacy and compul- 
 sion. 
 
 Finally, civil legislation is, as much as police and\ 
 justice, the institutional satisfaction of a public need. > 
 It may be asked how it can be imperative since all 
 civil legislation, and particularly Art. 6 of the Code 
 Napoleon, decides, as a principle, that private agree- 
 ment may abrogate civil legislation. This has led to 
 the argument that civil legislation concerns the offi- 
 cers of justice whose business it is to legislate on quar- 
 rels between private citizens. The parties to an ac- 
 tion may make agreements contrary to all civil laws 
 without affecting public order or morals ; but the law 
 settles the judge's duty in very definite fashion. He 
 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 
 that of justice. Statutes which deal with public 
 7 Binding, Die Normen, I, p. 66 (2nd edition). 
 
78 LAW IN THE MODERN STATE 
 
 order and morals, like those relating to domestic or- 
 ganisation, or the capacity of parties, and so forth, 
 cannot be abrogated by agreement. This in itself 
 settles the role and duty of the judge, who must de- 
 clare all such agreement null and void. They are 
 thus organic laws in the service of justice. 
 Even in regard to the civil service a statute is not 
 an order. Its force is derived from its relation to a 
 means of satisfying the social need. I admit freely 
 that, thus far, the character I have ascribed to statutes 
 has been derived from purely theoretical arguments 
 and that its relation to the facts must be still deter- 
 mined. They are completely antithetic to the im- 
 perialist conception. In that system of law four con- 
 clusions followed which were accepted as sacred 
 'dogma : ( i ) A law was a decision derived only from 
 the people or from its representatives; (2) A law be- 
 ing derived from the sovereign will of the state is 
 subject to no form of action and gave rise to no re- 
 sponsibility; (3) A law, from this character, was like 
 sovereignty one and indivisible. A country, there- 
 fore, could not have statutes passed by districts or 
 groups. (4) As a command, a statute was always a 
 unilateral act. Statutes and agreements were mu- 
 tually exclusive ideas. A statutory agreement was a 
 contradiction in terms. 
 
 To-day none of this is true. There are statutes 
 which are not derived from the people or its repre- 
 sentatives. Statutes may give rise to action and in- 
 volve state responsibility. Districts and groups pass 
 
STATUTE 79 
 
 their statutes. We have agreements of statutory 
 force. These changes must be studied in detail. 
 
 Ill 
 
 In the first place it is clear that if a statute is the 
 command of the sovereign power it can be made only 
 by the instrument in possession of that power. For a 
 long time, indeed, the principle was considered abso- 
 lute that statutes can emanate only from a body like 
 parliament of which the national composition gives 
 it the diverse prerogatives of national sovereignty. 
 This is at bottom the celebrated principle of the sep- 
 aration of powers. In Art. 3 of the preamble of the 
 third chapter of the Constitution of 1791, it was said 
 that "the legislative power is delegated to a national 
 assembly composed of temporary representatives 
 freely elected by the people." In title 3 it states that 
 "the Constitution delegates exclusively to the legisla- 
 tive body the powers and functions hereinafter men- 
 tioned; to propose and decree laws; the king may 
 only invite the legislative body to take a subject into 
 consideration." 8 The power of making a law is thus 
 so exclusively the prerogative of the national repre- 
 sentatives that they are even given the exclusive right 
 of legislative initiation. 
 
 Nor is this all. In chapter four of Title 3 of the 
 Constitution of 1791 it is stated that "the executive 
 power can make no law even of a provisory kind ; it 
 
 8 Art 1, ch. iii, 1. 
 
8o LAW IN THE MODERN STATE 
 
 can only issue proclamations in accordance with stat- 
 ute either to order or to repeal their execution." 
 However it has been interpreted, the purpose of this 
 is very clear. It entirely deprives the king of what 
 is to-day called the power of ordinance. The word 
 proclamation is characteristic. It implies that the 
 royal act is not in itself valid, is not a rule the courts 
 must accept, but only an instruction addressed to the 
 civil service ordering or repealing the operation of a 
 statute. The same principle was clearly formulated 
 in the Constitution of the year III : "A statute is the 
 general will of the majority of citizens or of the rep- 
 resentatives." 9 The Directory could issue no proc- 
 lamations other than those which either conformed 
 to, or applied, statutes. Despite these restrictions, 
 there are from this time the so-called decisions of the 
 Directory a large number of acts, certainly other 
 than proclamations, which are general rules inher- 
 ently 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 govern- 
 ment 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 execu- 
 tion." 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 
 
 9 Constitution of the Year, III, art. 144, 1-2. 
 
STATUTE 8l 
 
 \ 
 
 form of government empire, kingdom, republic 
 the number of ordinances issued by government con- 
 stantly grows. Of course if we accept the charter of 
 1814 which (Art. 14) gives the king the right to is- 
 sue the ordinances necessary to the operation of stat- 
 utes and the safety of the state, all other constitutional 
 acts relate the ordinance power of the head of the 
 state to his executive power and give it the general 
 purpose of executing the laws. These restrictions 
 are powerless. The facts, as always, are stronger 
 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. 
 
 We cannot here discuss the endless controversy 
 which has arisen over the ordaining power of the 
 French president, particularly in relation to a sup- 
 posed delegation of legislative power given to him 
 by parliament. The undeniable fact is that the pres- 
 ident issues to-day not only ordinances related to 
 earlier statutes, but also many independent ordi- 
 nances which are in no wise attached to a formal 
 statute and are yet generally accepted as valid. Of 
 this latter kind, for example, are the general police 
 regulations issued by the president. 10 All these reg- 
 
 10 Cf. the Decrees of March 1, 1899, and Sept. 10, 1901, on 
 motor-cars, and that of Oct. 8, 1901, on internal navigation. 
 
82 LAW IN THE MODERN STATE 
 
 illations cannot with the utmost subtlety be specifi- 
 cally distinguished from statutes. 11 
 
 By their very definition these general regulations 
 are undeniably imposed on private citizens, the ad- 
 ministration and the courts. To violate them is the 
 same thing as to violate statutes. 
 
 This does not mean to say that the president can 
 issue ordinances on every subject. There are cer- 
 tainly matters, called legislative, which are within 
 the competence of parliament alone. That, how- 
 ever, is a question of capacity and does not touch the 
 fundamental point that there is no difference between 
 statutes and ordinance. 
 
 And, even if there did at one time exist such a dif- 
 ference, it is tending quite naturally to disappear; is 
 even perhaps already obsolete. If it did exist it can 
 only be for the reason that M. Hauriou has given. 
 Statutes, according to him, 12 are general limitations 
 on the full activity of the individual. Ordinances 
 are general regulations of which the purpose is to 
 organise and operate some public service. I have 
 shown above that this is supremely the purpose of 
 statutes. The fundamental point is that in the evolu- 
 tion we are witnessing there are regulations of a stat- 
 utory character which do not come from the general 
 organ of sovereign power. As a consequence statute 
 
 11 [On the president's power of ordinance cf. Berthelemy, Le 
 Pouvoir Reglementaire du President, in Revue Politique et Parle- 
 mentaire, Jan.-Feb., 1898.] 
 
 12 Droit Administratif (7th ed.), p. 50. 
 
STATUTE 83 
 
 and sovereignty have no longer the necessary connec- 
 tion. 13 
 
 It may be said that the distinction between statute 
 and ordinance consists in this, that an ordinance may 
 be attacked for illegality while the statute is not sub- 
 ject to legal defect. While this is true, it is tending 
 to 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 in- 
 strument or the agent from whom it emanates. If 
 statutes are not subject to legal attack, it is only be- 
 cause French law has not yet admitted that the acts of 
 the legislative body can be submitted to the courts. 
 This represents, of course, the survival of the old idea 
 that the legislative body mirrors the sovereignty of 
 the nation. But, as we shall see, it is exactly at this 
 point that we are arriving. The time is not far dis- 
 tant when statute no less than ordinance will be sub- 
 ject to the control of the courts. 
 
 iy 
 
 In the imperialist theory the irresponsibility of 
 statute was natural. As the order formulated by the 
 sovereign will it could be presumed to express a rule 
 of law. A court cannot question statutes because its 
 business is to apply the law of which a statute is the 
 
 13 Moreau, Le Reglement Administratif ; Duguit, Traite. L. 
 137, 201 seq. ii, 451. 
 
84 LAW IN THE MODERN STATE 
 
 principal source. This is more true because sov- 
 ereignty is not a matter of degrees ; and since a statute 
 is its direct manifestation no authority is competent 
 to 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 
 woman. Professor Dicey has shown in a very strik- 
 ing fashion the meaning of that principle. "Parlia- 
 ment means, in the mouth of a lawyer (though the 
 word has often a different sense in ordinary conver- 
 sation) the king, the House of Lords, and the House 
 of Commons ; these three bodies acting together may 
 be aptly described as the 'King in Parliament,' and 
 constitute Parliament. 
 
 "The principle of Parliamentary sovereignty 
 means neither more nor less than this, namely that 
 Parliament thus defined has, under the English Con- 
 stitution, the right to make or unmake any law what- 
 ever; and, further, that no person or body is recog- 
 nised by the law of England as having a right to over- 
 ride or set aside the legislation of parliament." 
 
 In this respect England does not seem likely, for 
 the moment at least, to change its system of juris- 
 prudence. 
 
 In America and France, however, there are signs 
 
 of a great change which, in the latter country, is not 
 
 yet ended. The starting point of this evolution is 
 
 the recognition, at the end of the eighteenth century, 
 
 "Law of the Constitution (8th ed.), pp. 469-76. 
 
STATUTE 85 
 
 of a distinction between ordinary laws and constitu- 
 tional 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, 15 
 
 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 recogni- 
 tion of a constitutional law-making body and an or- 
 dinary statute-making body each equally sovereign in 
 its own domain. Still less does it imply the recogni- 
 tion of a constitution making body superior in power 
 to the ordinary legislature. In the theory of public 
 law founded on sovereignty that sovereignty is uni- 
 fied and does not admit degrees. Every statute, 
 whether constitutional or not, is a command of the 
 state in its sovereign capacity. But the order is ex- 
 pressed in different forms where the law is constitu- 
 tional in character. This is important because it 
 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 
 in France and America. When the ordinary law- 
 
 15 Cf. Borgeaiid, Etablissement et Revision des Constitutions 
 (1893) ; Gajac, De la Distinction Entre des Lois Ordinaires et 
 Constitutionnelles (1911) ; Duguit, Traite, II, 513f. 
 
86 LAW IN THE MODERN STATE 
 
 making body passes a statute which violates the con- 
 stitution, can it be annulled by the courts? Is there 
 a court competent to pronounce this annullment? At 
 present no such court exists. It is of course true that 
 in Art. 21 of the Constitution of the year VIII and 
 the Art 29 of that of 1852, the senate, being a con- 
 servative body, was given the right to maintain or an- 
 nul all acts, including those of the legislature, which 
 were submitted to it as unconstitutional. But neither 
 the senate of the First Empire nor that of the Second 
 used the power so conferred ; they were no more than 
 an instrument which permitted the Emperor to alter 
 the constitution at his pleasure. 
 
 Another question which differed from, but which 
 was connected with, the first, may be asked. Where 
 a man is charged before a civil or criminal court with 
 the violation of a statute is the plea of its unconstitu- 
 tionality a good defence? May the court not indeed 
 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 jefuse 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 87 
 
 onies by the mother-country. The necessity of set- 
 tling the conflict of laws in a federal state is an obvi- 
 ous source; and though the constitutional text in- 
 voked is in fact unrelated to the question, it has been 
 used as a basis for this jurisprudence. And the path 
 that the Supreme Court has trodden others have fol- 
 lowed. But I cannot dwell longer on this matter. 16 
 
 The evolution in France has been different. It has 
 long been an accepted dogma that no court could ac- 
 cept a plea of unconstitutionality and refuse to apply 
 a formal statute even where they considered it un- 
 constitutional. 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 basis of this solution has been 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 
 statute or refuse to apply it on that ground. The 
 thought underlying this attitude is clear enough. A 
 statute, in its view, is the expression of a national sov- 
 ereignty upon which no court is competent to pass 
 
 16 [See Beard, The Supreme Court and the Constitution, for a 
 full discussion cf. this .question.] Cf. Nerincx, L'Organisation Ju- 
 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 THE MODERN STATE 
 
 judgment. It is the logical consequence of a theory 
 which, making the courts the servants of the state, 
 prevent the opposition of their will to that of the 
 state in its legislative capacity. 
 
 The usual explanation is 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. 17 These texts 
 in reality have no connection with the question. The 
 principle of the separation of powers leads to an en- 
 tirely different solution. A court which refuses to 
 apply a statute on the ground of unconstitutionality 
 does not interfere with the exercise of legislative 
 powers. It does not suspend its application. The 
 law remains untouched except in relation to the issue 
 in question. It is simply because the judicial power 
 is distinct from and independently equal to the two 
 others that it cannot be forced to apply the statutes 
 it deems unconstitutional. This has been understood 
 in America, and the principle of the separation of 
 powers has logically given American courts the right 
 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 
 simply that statute as the expression of the state's 
 
 17 Cf. Constit. of 1791, art. iii, chap, v., tit. in; Law of Aug. 
 16, 1790, art. 10, tit. iL 
 
STATUTE 89 
 
 sovereign will must be imposed without restriction or 
 reservation. 
 
 If, as I suggest, the conception of sovereignty is in 
 process of disintegration, we ought to find an increas- 
 ing tendency to confer on the courts the power of 
 judicial review. It is exactly this that has happened. 
 Of course the judges themselves have always refused 
 in France to discuss the constitutionality of statutes, 
 and to-day they would not decide differently. The 
 precedent of 1833, when such a plea was rejected by 
 the Court of Cassation, still holds good. A journal- 
 ist 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." 18 
 
 On the other hand, French judicial theory and the 
 jurisprudence both of the Council of State and cer- 
 tain 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 Eco- 
 nomique, 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 consti- 
 tutional principle that taxation could derive only; 
 
 18 Sirey (1833), I, 351. 
 
90 LAW IN THE MODERN STATE 
 
 from the decision of Parliament. In 1895 M. Jeze 
 did not hesitate to urge 19 that if a statute violates the 
 constitution the courts cannot apply it, because in the 
 presence of contradictory authorities they must en- 
 force the superiority of the constitution. That atti- 
 tude is gaining increasing acceptance among compe- 
 tent authorities. 20 
 
 This thesis has also been defended by M. Hau- 
 riou. 21 In its decision of Aug. 7, 1909, the Council 
 of State refused to annul the decree which dismissed 
 a large number of postal employees for going on 
 strike. The decree obviously violated Art. 65 of 
 the Financial Act of April 22, 1905. By its terms no 
 civil servant could be dismissed without the ground 
 of his dismissal at least, the fact of his approach- 
 ing dismissal being first communicated to him. 
 M. Hauriou very justly observes that those who sup- 
 port the decision cannot justify the explanation given 
 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 a strike involved the dismissal of certain civil 
 servants, it would be unconstitutional on the ground 
 that it was incompatible with the essential conditions 
 
 19 Revue Generale d'Administration (1895), II, 411. 
 
 20 Such as Saleilles and Thaller, Bulletin de la Societe de Legis- 
 lation Comparee (1902), p. 240 seq. [Cf., however, Mr. As- 
 quith's repudiation of the idea of judicial review during the debates 
 on the third Home Rule Bill, Hansard, Fifth Series, Vol. 42, 
 p. 2229.] 
 
 21 Sirey (1909), III, 14. 
 
STATUTE 91 
 
 of state existence. For the regular operation of ad- 
 ministrative business is the very raison d'etre of the 
 state. When the Council of State therefore sup- 
 ported the decree of dismissal it simply refused to 
 apply an unconstitutional statute. M. Hauriou is 
 patently right; and his theory involves the conception 
 of the state I have suggested as a group of public 
 services guaranteed and controlled by government. 
 
 This solution, moreover, has won the adherence of 
 Professor Berthelemy. 22 At the present day it is ex- 
 tending itself all over Europe. In Germany Profes- 
 sor Laband 23 tells us that after much discussion the 
 immense majority of German jurists are in favor of 
 judicial review. In Norway the power has been 
 logically 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 by the District Court 
 of Christiania. In 1904 the first Chamber of the 
 Areopagus asserted this doctrine in the clearest 
 terms. 24 A recent decision of the Court of Ilfor con- 
 firmed 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 25 in a case between the 
 city of Bucharest and its tramway company. The 
 
 22 Sirey (1912), IV, 12. 
 
 23 Droit Public, II, 322. 
 
 24 Revue de Droit Public (1905), p. 481. 
 
 25 Revue de Droit Public (1912), p. 139, Sirey, IV, 9 (1912). 
 
92 LAW IN THE MODERN STATE 
 
 company asked the court to prohibit the application 
 of the law of Dec. 18, 1911, on the ground that since 
 it violated Arts. 14 and 30 of the Rumanian constitu- 
 tion by attacking the right of property, it was uncon- 
 stitutional. The court accepted the plea in a very 
 striking judgment. A month later the judgment was 
 confirmed by the Supreme Court in the following 
 terms: "If in a case plea is made that a statute is un- 
 constitutional, the judge cannot refuse to try the issue. 
 Exactly as where two ordinary statutes conflict it is 
 his right and duty to decide which of them must be 
 applied and it is as much his duty even where one of 
 these two laws is the constitution. Within these lim- 
 its, the right of judicial review is incontestable. The 
 power flows primarily and naturally and logically 
 from the nature and character of the judicial func- 
 tion of which it is the business to enforce the law; and 
 the law of the constitution equally. There exists no 
 clause in the constitution which deprives the judi- 
 ciary of this power." 26 
 
 It is clear from these facts that if European 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 
 to any interested party. French jurisprudence will 
 certainly be led by sheer force of facts to this conclu- 
 sion. Probably the evolution will be inaugurated by 
 the Council of State. I have already suggested the 
 
 26 Revue de Droit Public (1912), p. 365 seq. 
 
STATUTE 93 
 
 avenue of approach in discussing M. Hauriou's very 
 plausible interpretation of the decision which upheld 
 the decree of 1909. For a long time past the Coun- 
 cil of State has accepted the plea of illegality in re- 
 gard to administrative regulations even though it 
 considers them as issued in virtue of legislative dele- 
 gation. Since 1907 the Council of State had admit- 
 ted the plea of excess of power against these same 
 regulations even while it maintained the theory of 
 delegation. 27 Now if there is delegation, logically 
 administrative ordinance is in reality the work of 
 parliament; for unless delegation means nothing, it 
 means the transmission from one institution to an- 
 other of its own power. 
 
 The path from the consideration of administrative 
 ordinance to formal statute is easy and short. It is 
 therefore likely that in the near future this change 
 will become established fact. It is in this connection 
 interesting that the Chamber of Deputies should have 
 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 es- 
 tablished charged with passing upon the claims of 
 citizens for the violation of their constitutional rights 
 of the legislature in executive power." On the same 
 day M. Charles Benoist presented a bill for the es* 
 
 27 Recueil (1907), p. 913; (1908), p. 1094; (1911), p. 197. 
 
94 LAW IN THE MODERN STATE 
 
 tablishment of a Supreme Court which should take 
 account of attacks on the rights and liberties of chi- 
 ns." 
 28 Journal Official, Proc. Parl. Chambre (1903), pp. 95, 99. 
 
 zens. 28 
 
t~ 
 
 CHAPTER iy 
 SPECIAL STATUTES 
 
 OTHER facts tend to make clear the disappearance 
 from statute of the ideas of a sovereign command. 
 And it is exactly here that there is to be discerned 
 the profoundest change of modern times. The the- 
 ory of a sovereign state, indeed, its emanation from a 
 nationality, situated on definite territory, and organ- 
 ised 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- 
 mense influence it exerted. 1 
 
 The consequence of this theory is clear. If law is 
 the expression of the unified and sovereign will, it is 
 evident that on a given territory there can only be one 
 law and that the members of a nation recognising 
 only that one law can admit the validity of no other 
 form of statute. But we shall see that in the modern 
 state alongside national laws there are local laws and 
 group laws which the citizens accept and the courts 
 enforce. 
 
 1 Cf. the Constitution of 1791, title iii, art. 1 ; Constit. of 1848, 
 art. I. 
 
 95 
 
96 LAW IN THE MODERN STATE 
 
 i 
 
 Obviously the sovereign cannot admit a federalist 
 organisation. Every one knows with what fierce in- 
 dignation the Convention attacked every governmen- 
 tal attempt into which federalism might rightly or 
 wrongly be read. By federalism the convention un- 
 derstood what we to-day call decentralisation that 
 is to say, any system in which a territorial area is self- 
 governing. That this was contrary to the principle 
 of unified sovereignty had been clearly announced by 
 those who wrote the Constitution of 1791. It is true 
 that the national assembly of 1789 had established a 
 system of local decentralisation in the twofold sense 
 that all local civil servants were elected and that the 
 control of the central government was greatly nar- 
 rowed. But the constitution laid it down that "the 
 Administration is not a representative agency. Its 
 members are elected from time to time by the people 
 to exercise administrative functions under the super- 
 vision of the authority of the Crown." Thus al- 
 though the local organs were elected, the representa- 
 tives 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 ob- 
 server must be impressed with the variety of law and 
 especially with its localisation. It is very striking in 
 
 2 Constit. of 1791, tit. iii, chap, iv, sec. ii, art. 2 and 3. 
 
SPECIAL STATUTES 97 
 
 federal countries when on the same territory federal 
 law and state law are both applied. 3 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 discus- 
 sion. 
 
 Moreover, it is not only in federal countries but 
 even in unitary states like France that this localisa- 
 tion of law is apparent. Law, above all, is a rule 
 which derives from the central government and is ap- 
 plicable in theory to every individual in the state; 
 but, by its side, local laws begin to make their 
 appearance. 
 
 In France, since 1871, the question of decentraliza- 
 tion has been frequently discussed. 4 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 decentral- 
 ised system. Parliament has for several years dis- 
 cussed different proposals which have aimed at sub- 
 stituting 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 
 
 3 [On the other hand, the observer should note the growing 
 tendency towards federal control. Cf. Franklin Pierce, Federal 
 Usurpation, 1908, and Laski, Problem of Sovereignty, Appendix 
 B.] 
 
 4 [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.] 
 
98 LAW IN THE MODERN STATE 
 
 electoral reform, which should include the scrutin de 
 liste and minority representation, would be the pre- 
 lude of a great administrative reform in a decentral- 
 izing direction. But since neither of these has hap- 
 pened we must discuss only what has actually oc- 
 curred. 
 
 To-day, both in fact and in law, the communes, or 
 at least the great towns, have undoubtedly a power of 
 legislation distinct from that of the central govern- 
 ment. The limitation derives from the fact that even 
 if, in law, a municipal system is the same both for 
 large and small communes, the force of circumstance 
 has made the autonomy of the great towns alone a 
 reality. 
 
 It is of course true that as the nation created this 
 system of municipal autonomy so the nation can take 
 it away. But custom has given such popularity to 
 this burghal independence as to render its complete 
 withdrawal impossible. 
 
 However that may be, in a limited field and no- 
 tably in regard to police and municipal services, 
 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 reg- 
 ulations to which obedience is secured by a penal 
 sanction. To act in conformity with them may pro- 
 
SPECIAL STATUTES 99 
 
 duce a situation entailing legal rights ; to violate them 
 involves due legal responsibility. 
 
 By statute, by custom, and by the attitude of the 
 courts, 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. 
 
 The law of 1884 did not give to the municipal 
 council any control over municipal regulations. But 
 in fact custom has given it that power. There is no 
 town in France where its wide exercise is not appar- 
 ent ; and some recent legislation, such as the statute of 
 Feb. 15, 1902, associates the Municipal Council with 
 the drawing up of police regulations. It is every- 
 where recognised to-day that the prefect, though 
 he is the agent of the central power, cannot change 
 the mayoral regulations, but only annul them for ille- 
 gality, and cannot take the mayor's place when the 
 latter has taken all necessary police measures. If 
 the prefect goes beyond his powers on this question, 
 the mayor can go to the courts and have the prefec- 
 torial decision annulled. Clearly, therefore, the 
 mayor is for his commune not merely a subordinate 
 of the prefect but a real legislator who acts as a rep- 
 resentative 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 7, 1902, which accepted the plea of 
 the mayor of Neris against the decision of the prefect 
 
100 LAW IN THE MODERN STATE 
 
 of Allier. 5 The latter had issued regulations in re- 
 gard to the casino of this holiday resort which were 
 in contradiction to those issued by the mayor for the 
 territory under his control. In 1910 the Council of 
 State decided in the mayor's favor, and it has ac- 
 cepted the plea of a mayor against a prefectoral de- 
 cision, annulling a decision in which a mayor has re- 
 pealed a regulation of one of his predecessors prohib- 
 iting processions. 6 
 
 That municipal regulations are clearly communal 
 statutes is clear also from the point of view of liabil- 
 ity. The Council of State tends more and more to 
 recognise communal liability for municipal regula- 
 tions. The cases on this question clearly relate them- 
 selves to that evolving jurisprudence which recog- 
 nises public responsibility for public acts. Its evi- 
 dent implication is that a municipal regulation is 
 really a communal statute because it is the commune 
 which bears the responsibility so created. This re- 
 sponsibility was recently recognised when a mayor 
 illegally regulated the use of the church bells and, 
 notably, ordered them to be used for civil funerals. 
 The Council of State annulled the decision and rec- 
 ognised in principle the liability of the commune to 
 the vicar for the moral prejudice created by the reg- 
 ulation. 7 
 
 5 Sirey (1902), iii, p. 81. 
 
 6 Conseil d'Etat, Dec. 16, 1910; Recueil, p. 957. 
 
 7 Le Temps, June 17, 1912. 
 
SPECIAL STATUTES, IOI 
 
 II 
 
 Not only are there local statutes but there are also 
 statutes concerned with public administration which, 
 in so far as that administration is decentralised, have 
 a similar limitation. This administrative decentral- 
 isation is one of the most interesting phenomena of 
 our time. 
 
 I have already pointed out the increasing develop- 
 ment, especially in France, of an administrative de- 
 centralisation 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 govern- 
 ment. 
 
 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 patrimo- 
 nialisation. That is to say, it is given an independent 
 budget of which the management under government 
 supervision is confided to the officials themselves. 
 This governmental supervision is found, above all, in 
 the system of obligatory expenditure ; that is to say, 
 in the power of government to compel certain expen- 
 diture deemed by it necessary to the proper function- 
 ing of the service in such cases as its managers should 
 disagree with the Budget. The necessary counter- 
 part of decentralisation is the personal responsibility, 
 
102 L:A3y;;[ i ;:THE. i M,ODERN STATE 
 
 under personal recognition and vigorous sanction, of 
 the officials to the public. 
 
 We have taken only the first steps towards this or- 
 ganisation. But there are signs that this evolution 
 will proceed more rapidly, and that it is becoming 
 the vital condition of the extension of state powers if 
 the excessive absorption of individual initiative is to 
 be avoided. 
 
 In France the public departments are an obvious 
 example of functional decentralisation. These de- 
 partments are public services with their own budget 
 and their own administration. Their officials form 
 a managing council which, while it is to-day of a nar- 
 row kind, will certainly extend. The ideal type is 
 that of our universities created by the law of July 10, 
 1896, and organised by the great decrees of the next 
 year. They have each an autonomous budget; under 
 state supervision, they are managed by a council en- 
 tirely composed with the exception of the Rector, 
 who is its president of professors elected by their 
 colleagues from the university concerned. The 
 teachers in higher education have a strongly pro- 
 tected status and are subject to the discipline of a 
 university council which is nothing so much as the 
 council of an independent corporation; while appeal 
 lies in the superior council of instruction 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 103 
 
 connects two intimately related ends. On the one 
 hand it aims at protecting the official from arbitrary 
 attack, at securing him his position, his regular ad- 
 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 it only protects him in the interest of the 
 service. This status will vary with the different de- 
 partments. It is true indeed that several years ago 
 the Chamber of Deputies considered the proposal for 
 the establishment of a law regulating the position of 
 all civil servants with some few exceptions ; and that 
 at the end of 1911 M. Maginot presented a remark- 
 able report on this question. But the Chamber has 
 not yet discussed the project and it is doubtful if it 
 ever will do so. The variety of the departments is 
 already so great that it is impossible to secure any 
 general status by law. 8 The solution of the problem 
 is a separate departmental status established by agree- 
 ment between the Minister and the permanent offi- 
 cials. 
 
 The close relation between functional decentrali- 
 sation and the status of officials is clearly set forth in 
 the financial law of 1911 (Art. 41 following), which 
 gave some degree of autonomy to the state railways. 
 
 8 [It has, however, been proposed by a distinguished civil serv- 
 ant. Cf. G. Demartial, Le Statut de Fonctionnaires, 1909.] 
 
104 LA W IN THE MODERN STATE 
 
 Art. 56 created a council called the Council of the 
 System to which four officials are appointed, chosen 
 by the Minister from the delegates elected to the di- 
 verse committees and commissions of the system. 
 This council must give its advice on the rules relat- 
 ing to official status (Art. 58, No. 2). This status 
 which, according to Art. 68, was to be applied with- 
 in a year, was established as the result of an agree- 
 ment between the minister and these respective dele- 
 gates. There have been some protests from the offi- 
 cials 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 pub- 
 lic services as are technical in character; unless revo- 
 lutionary effort does not hinder and falsify this nor- 
 mal evolution to the detriment of those it pretends 
 to serve. 
 
 The establishment of a statute for each separate de- 
 centralised service is the establishment of a statute 
 distinct from national legislation. 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 in the full sense a statute; that is to say, it is a 
 general regulation based upon legal sanction the vio- 
 lation of which brings the offender before the courts. 
 
 An instance of a statute distinct from national leg- 
 islation and applied to a decentralised service ap- 
 
SPECIAL STATUTES IO$ 
 
 pears very clearly in the case of the charitable admin- 
 istration of a great town. This settles its own organ- 
 isation and its own bye-laws. Under the name of or- 
 dinance 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 
 often decided, involves annulment. The statute gov- 
 erning an autonomous service is thus distinct from 
 national law both by its purpose and its origin; and 
 the same may be said of the regulations issued by each 
 university for its own administration. Each univer- 
 sity council has in this regard a full legislative com- 
 petence. 
 
 Ill 
 
 The law peculiar to each decentralised service 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, gen- 
 erally describes the legal situation of a definite per- 
 son in a given group by reason of his membership of 
 it. Thus, to speak of the status of the civil servants in 
 a given department is to recognise that because they 
 belong to that department they have a special legal 
 position. If, of course, all civil servants had the 
 same status, it would probably follow that its origin 
 was a piece of national legislation. It would be dif- 
 ferent from the status of the ordinary citizen ; but it 
 
106 LAW IN THE MODERN STATE 
 
 would be a general difference arranged in the interest 
 of the national organisation by means of its parlia- 
 mentary system. The status of civil servants in each 
 department is, however, different. Each department 
 participates in deciding, and sometimes completely 
 determines, the kind of status it will have. Some- 
 times that status applies, and can only apply, to a sin- 
 gle 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 
 the group gives to their situation its special needs. 
 
 I have already mentioned how in September, 1912, 
 the railway service as a result of an agreement be- 
 tween the management and the employees was given 
 a special organisation. For that purpose a code of 
 rules was drawn up which was essentially a statute in 
 that it was a general regulation to which a legal sanc- 
 tion 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. 
 
 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 to the question of the foundation 
 of the character of disciplinary law. The practical 
 question is, how the same act can be the object of dis- 
 ciplinary repression without being the object of penal 
 repression. How, moreover, can the same act be 
 
SPECIAL STATUTES 107 
 
 the object of penal suppression and of disciplinary 
 repression at one and the same time? 
 
 In all that has recently been written on this ques- 
 tion there is a clear tendency to see in disciplinary 
 law the law of a group distinct from the state. Pro- 
 fessor Jellinek, for example, who has so strikingly 
 expounded the theory of the state-person as the pos- 
 sessor of subjective rights, 9 does not hesitate to say 
 that disciplinary repression is entirely different from 
 penal repression in that the former is 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 depart- 
 ments and sometimes even the private citizen, who 
 are entirely distinct from the state. 
 
 My colleague, M. Bonnard, seems to me to have 
 given the best explanation of the facts. 10 In his view 
 the right to discipline is the penal law of a corpora- 
 tion distinct from the state so that the two laws have 
 an origin and a field of activity that are entirely dis- 
 tinct. He insists that in. modern law public activi- 
 ties tend to assume 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 
 statutes and ordinances to give the right of discipline 
 to the corporate councils of the different departments. 
 
 9 System der Offentlichen Subjektivend Rechte (1905), p. 214f. 
 
 10 De La Repression Disciplinaire (1902), 
 
108 LAW IN THE MODERN STATE 
 
 I think it is clear that M. Bonnard too greatly nar- 
 rows the field of disciplinary law when he calls it the 
 penal law of corporations. It is true, perhaps, that 
 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 ac- 
 tivities tend to take corporate form. It is neverthe- 
 less 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 char- 
 acter, like professional trade unions, or voluntary so- 
 cieties, which, without being technically corpora- 
 tions, yet act as units leading towards the corporate 
 type. It is certainly true of public services which 
 become the more autonomous as they become more 
 decentralised. 
 
 The disciplinary law of the officials of a given de- 
 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 re- 
 pressive 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 submitted to penal laws of an en- 
 tirely distinct character. The national penal law has 
 as its end the security of the people as a whole. The 
 penal law of their particular service assures its oper- 
 ation in conformity with its fundamental purposes. 
 Their domain is obviously distinct; but the official 
 
SPECIAL STATUTES 109 
 
 must nevertheless obey both. An act may be pun- 
 ished 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 objec- 
 tive law by which any given public service is organ- 
 ised ; and it may thus itself be organised in the form 
 of jurisdiction. A fault of discipline may be fore- 
 seen and defined by the organic law of the service and 
 no act may be punished when 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 
 guarantees of ordinary law. 
 
 This is certainly the way in which disciplinary re- 
 pression is evolving. For some officials the power to 
 discipline is exercised by real courts like the Superior 
 Council of the Magistracy, which is only the Court of 
 Cassation sitting in full session; or like the Superior 
 Council of Public Instruction. In some depart- 
 ments 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. 
 
 The evolution of discipline, in fact, goes, step by 
 step, along the same road as the public services 
 towards autonomy. We see being built up a penal 
 
110 LAW IN THE MODERN STATE 
 
 law by the side and yet outside of the national penal 
 law. Public law is clearly no longer monistic in its 
 imperialism. 
 
 Certain classes of officials are subject to a discipline 
 of a particularly interesting kind. These are the 
 members of the deliberative assemblies and particu- 
 larly members of parliament. 
 
 The regulations of parliament are not formal stat- 
 utes. They are established by resolutions separately 
 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 controls the action of the members. These ordi- 
 nances constitute a penal law applicable to the mem- 
 bers. They establish penalties, one of which cen- 
 sure and temporary exclusion may, in the Chamber 
 of Deputies, actually lead to imprisonment (Art. 
 126). This penal law is applied either by the presi- 
 dent 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 
 of a sovereign will. It is doubtless a general regula- 
 tion. But it does not emanate from a power consti- 
 tutionally established to formulate statutes even 
 though it can contain penal dispositions. I have tried 
 to explain it by suggesting 11 that each political as- 
 sembly is an autonomous corporation exercising over 
 itself and its members a legislative power, so that its 
 disciplinary sections would be its penal law. But it 
 ll Trait, II, 317. 
 
SPECIAL STATUTES III 
 
 is perhaps simpler and more accurate to see in the 
 legislature not a corporation but an autonomous pub- 
 lic service of which legislation is the function. Its 
 rules would then be its organic law and as an auton- 
 omous body it would have its special law like the 
 public services of which I have spoken above. 
 
 IV 
 
 n 
 
 deliberate assemblies are not autonomous cor- 
 porations there are many groups which have this 
 character. The movement towards association, par- 
 ticularly in the trade union world, most certainly re- 
 mains the distinguishing feature of the end of the 
 nineteenth and the beginning of the twentieth cen- 
 tury. The Revolution did not recognise the right of 
 association. Le Chapelier's law expressly prohib- 
 ited professional groups. 12 The penal code prohib- 
 ited under heavy penalties every association of more 
 than twenty persons. 13 
 
 It was logical enough. An association, indeed, is a 
 group so formed in the midst of the national life as 
 to break its absorptive unity. The association has its 
 law distinct from the national law a concept quite 
 impossible in the imperialist theory, which, making 
 the individual a part of the nation, submitted him to 
 the national law as a sole guarantee of his liberty. 
 
 12 June 14-17, 1791. 
 
 13 Arts. 291-2. [On the right of association, cf. Weill, Droit 
 d'Association, 1893, and the valuable note in Dicey, Law and 
 Public Opinion (2nd edition), pp. 467F.] 
 
112 LAW IN THE MODERN STATE 
 
 He 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 
 full and logical clarity. In its view, professional as- 
 sociations are contrary to the principle of liberty 
 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 deal- 
 ing with their supposed common interests." Such 
 a corporate law would clearly be directly antithetic 
 to the principle of a unified legislation. 
 
 Clearly, the way in which the movement towards 
 ^association has come into increasing existence in- 
 volves the disappearance of the concept of law as the 
 sovereign will of the nation. We can no longer ac- 
 cept the theory that its statutes are not laws but the 
 clauses of a series of individual contracts. That is a 
 theory defended to-day only by antiquarians. Those 
 who drew up Le Chapelier's law were in no wise de- 
 ceived 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 con- 
 trary to the constitution. The law of 1901 on the 
 right of association does of course insist that in theory 
 an association is still governed by the principles of 
 the civil code on contracts and obligations (Art. Ill, 
 
 14 Article 2 of the law of June 14, 1791. 
 
SPECIAL STATUTES 113 
 
 tit. 3) . This is merely a legislative error. And it is 
 worth noting that the law of 1901, which is the an- 
 tithesis of individualism and derived from an evolu- 
 tion fatal to individualism, was drawn up by men 
 who invoked at each stage traditional principles. It 
 is a new proof, amid a thousand others, that the inti- 
 mate thought of the legislator fails to seize the spirit 
 of that rule of life of which his own statute is yet a 
 part. 
 
 The statutes of an association are not the clauses of 
 a contract, but a definite law. I cannot here enter 
 into the technical implication of this. But the broad 
 lines are clear. The contract of Roman law, adopted 
 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. The psychological character of a con- 
 tract is clearly envisaged by any one who studies the 
 formula of stipulation in Roman law. But when 
 several wills come together without prearranged 
 agreement, when they have the same object without 
 being mutually determined but with a common pur- 
 pose in view, it is not a contract that they make. We 
 have what is to-day termed common action in collab- 
 oration, what the Germans call gesammtakt, verein- 
 barung; we may use the word contract, but we use it 
 in a sense quite different from its original meaning. 
 
 In forming an association there is no contract be- 
 cause the members, in view of their common purpose, 
 
114 LAW 1N THE MODERN STATE 
 
 all will the same thing. Their declarations of in- 
 tention are not mutually determined, they simply con- 
 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 imme- 
 diate 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 en- 
 tirely 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 have any existence. 
 
 The statutes of an association do not create a sub- 
 jective legal situation, they permanently govern the 
 administration of the group. Its members are defi- 
 nitely bound by certain obligations, as, for instance, 
 the obligation to pay their subscription. This obli- 
 gation is not born from contract. 15 It is the result of 
 joining the society which involves submitting to its 
 regulations. The obligation to pay the subscription 
 is thenceforward a legal obligation entirely analogous 
 to paying one's taxes. He may have to pay it even 
 when it is raised in amount if the general assembly 
 
 15 [For the different attitude of the common law, cf. Laski, The 
 Personality of Associations, 29 Harv. L. Rev., 404.] 
 
SPECIAL STATUTES 1 15 
 
 of the association so decides, and that despite his op- 
 position. He can of course resign from the associa- 
 tion; he always owes his annual subscription, and 
 even more, if the rules so decide. 
 
 The rules are a real law also in that they settle the 
 purpose of the association; and by setting its purpose 
 they settle 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. 
 
 Nor is this all. The association has a legal ca- 
 pacity which can be exercised only by organs ; these 
 are formed by the rules which determine simultane- 
 ously their competence. Here, again, the pressure 
 of a real organic law is obvious. Every act done in 
 violation of the rules, for example, without the ap- 
 proval of the general body of the association, where 
 that is necessary, or by the president alone, when the 
 co-operation of the directors is demanded, is null and 
 void. This nullity can be brought into play not only 
 by the society but also by third parties. It is thus 
 impossible to say that the rules are the clauses of a 
 contract. On the contrary, they are above all a law. 
 They are a general permanent regulation the viola- 
 tion of which will be declared illegal by the courts. 
 
Il6 LAW IN THE MODERN STATE 
 
 This is true of all associations, even of those of a 
 public character. Their end is not determined, and 
 their agents are not instituted, by the decree of recog- 
 nition. These are to be 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 
 proves the rules which remain as the organic law of 
 the group. 
 
 Positive French law, like most legal systems, dis- 
 tinguishes the association from the civil or commer- 
 cial company. The company is formed for purposes 
 of gain. The association has a disinterested end in 
 view. I cannot here discuss whether this distinction 
 is well founded. In any case, the fact that the mem- 
 bers of a society do or do not pursue an end that is 
 profitable, while it may explain the slow advent of 
 freedom of association and the retention, even to-day, 
 of certain restrictions that are without justification, 
 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 operation and thus de- 
 termine the conditions under which its transactions 
 will be valid. This may not be important for a small 
 company; but it is of capital significance for the great 
 organisations of which the number and importance 
 are growing from day to day. 
 
 Every modern country, and very notably France, 
 is a mass of groups. We have associations, federa- 
 
SPECIAL STATUTES 117 
 
 tions of associations, trade unions, federations of trade 
 unions, financial companies, industrial companies, 
 mining companies, insurance companies, public con- 
 tractors. 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 the gravest of problems. 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 gov- 
 ernmental authorisation was necessary to the forma- 
 tion of a limited company (Cf. English Companies 
 Act of 1862). The right to form trade unions was 
 granted in a limited fashion in 1884. It was not till 
 1901 that any general freedom of association was es- 
 tablished; 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 
 of the impenitent individualist. The collectivist an- 
 swered that the state would absorb these groups. He 
 saw in the trade unions only an instrument of war in 
 the class struggle which could lead to the nationali- 
 sation of the great capitalist societies. It was an er- 
 ror not less great than that of the individualists. It 
 found its root in the same imperialist conception of 
 
Il8 LAW IN THE MODERN STATE 
 
 public laws, the same notion of an all-powerful state 
 exercising unlimited command over a million of in- 
 dividuals. At bottom the collectivist system is only., 
 an extreme form of the imperialist theory. 
 
 The facts made havoc of these theories. Prophecy 
 may be a dangerous adventure, but the immense de- 
 velopment of group life in every field of social activ- 
 ity seems so general, so spontaneous, and so charac- 
 teristic of our time as to demand the admission that 
 it contains at any rate the elements of the social or- 
 ganisation of the future. Already our law has ceased 
 to be based on the idea of a unified and indivisible 
 sovereignty. It is and it will be an objective law of 
 government; but it is the law of government which 
 does not command. It is the law of a government 
 which serves the public need and secures the co-ordi- 
 nation of the modern corporate life. 
 
 The next phenomenon we have to discuss reveals 
 even more completely the collapse of the old concep- 
 tion of law. Statutory agreements are in their nature 
 simple enough ; they are laws properly so called, gen- 
 eral regulations of a permanent character which set- 
 tle for an indeterminate length of time the situation 
 of individuals and determine capacity under the 
 aegis of a legal sanction. They are not the work of a 
 unilateral will which commands. They are not the 
 work of a collaboration of wills like the rules of an 
 
SPECIAL STATUTES Iff 
 
 association or a decentralised public service. They 
 are the work of wills which really form an agree- 
 ment. The word contract is often used to describe 
 them; but since that has a technical meaning in the 
 civil 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 is not a new phenomenon in 
 the history of law. It is of course absolutely anti- 
 thetic to the imperialist notion. If law is by defini- 
 tion the command of a sovereign power, it cannot 
 possibly be at the same time an agreement; the two 
 terms are mutually exclusive. That is why statutory 
 agreements have made their appearance in legal his- 
 tory at times such as the feudal period when the idea 
 of sovereignty as the imperium of the state was in 
 some degree submerged. I pointed out earlier how 
 the Roman conception of imperium declined without 
 disappearing completely and how the feudal sys- 
 tem, being based above all on a regime of contract, 
 created between men a series of reciprocal rights and 
 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 
 society of the thirteenth century, despite the violence 
 
120 LAW IN THE MODERN STATE 
 
 that disturbed it; for no epoch and the twentieth 
 century no more than any other has been able to free 
 itself from violence. Feudal anarchy and feudal 
 barbarism have become cliches we no longer use. 
 The fact is that the feudal regime was essentially both 
 legal and contractual. 
 
 It is to-day quite clear that many social relations 
 are governed by rules which emanate not from a 
 unilateral will but from contracting purposes. Now 
 since this same phenomenon was produced in that 
 feudal period when the notion of sovereignty had al- 
 most completely disappeared, it may be urged that 
 the renewed appearance of statutory agreements is so 
 significant as above all to make clear the changing na- 
 ture of the state. Wide enough already, its domain 
 every day extends ; it has basic elements which, while 
 they are distinct because they apply to different situ- 
 ations, each display very clearly the combination of 
 statute and agreement. The first type is the collec- 
 tive labour agreement and the second the delegated 
 operation of a public utility. The collective labour 
 agreement is, it must be admitted, a legal institution 
 still in process of formation. It intervenes between 
 the employing groups and the workers to determine 
 the conditions under which the individual contracts 
 in the industry concerned should be arranged. As a 
 rule, it arises out of a strike and puts an end to it. 
 But often enough the problem of its interpretation 
 soon raises new difficulties. Students of the civil law 
 have tried to give it a theoretical basis by applying to 
 
SPECIAL STATUTES 121 
 
 it the classic concept of mandate, but they have failed. 
 The Societe d'Etudes Legislatives appointed a com- 
 mission which, despite the ability and knowledge of 
 its members, was compelled to give up the proposed 
 statute it had attempted to formulate ; 16 and the 
 Chamber of Deputies has not ventured to begin the 
 discussion of the two proposals that have been laid 
 before it. 1T 
 
 The failure of the society's commission is not as- 
 tounding. It tried to apply the traditional concep- 
 tions of individual contract and the mandate to an 
 act which is, in reality, not a contract at all but the 
 establishment of a permanent rule governing individ- 
 ual contracts that are still 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 the trades con- 
 cerned almost a legally organised body. It is then 
 that the collective agreement will so regulate the re- 
 lations of capital and labour as to be the law of an 
 organised profession. It will thus achieve the co- 
 ordination of classes by a series of collective con- 
 tracts by a series of agreements between the differ- 
 ent groups in which each class is integrated. 18 
 
 It is difficult to say when the evolution will be ac- 
 
 16 Bulletin de la Societe d'Etudes Legislatives, 1907, pp. 180, 
 505, espec. the report of M. Colson. 
 
 17 Bill of M. Doumergue, July 2, 1906; Bill of M. Briand, 
 July 11, 1910. 
 
 18 [Cf. the underlying conception of the Whitlev Reports. 1 
 
122 LAW IN THE MODERN STATE 
 
 complished, but its gradual development is perfectly 
 clear. Until that development is complete, the inter- 
 vention of parliament will serve no useful purpose. 
 In any case, the condition of its efficacious interven- 
 tion is the absence of any individualist notion of con- 
 tract or 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. 
 
 VI 
 
 There is another domain, however, where statu- 
 tory agreement has a perfectly defined character. 
 The courts have often already, perhaps indeed uncon- 
 sciously, drawn important conclusions therefrom. I 
 mean where a public authority confides some business 
 to a private contractor. 
 
 In such an agreement the public authority, whether 
 state, province, town or colony, charges a private citi- 
 zen, as a rule a company, with assuring the operation 
 of a public service under certain determined condi- 
 tions which are comprised in a deed called its char- 
 ter. The company accepts the task and this conces- 
 sion has the same general character all over the 
 world. The subjects of such a concession to-day are 
 for the most part those of transportation and lighting. 
 
 Such a concession is a definite agreement. It is 
 preceded by negotiations which lead to an under- 
 standing between the administration and the com- 
 pany which takes charge of the work. It comprises 
 
SPECIAL STATUTES 123 
 
 a number of clauses of a contractual character which 
 give rise to a subjective legal situation; the relation 
 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 
 or with the guarantees of interest or with reductions 
 promised by the company or with the division of 
 profits. All these clauses, and others of a similar na- 
 ture, are regulated by the rules of the civil code deal- 
 ing with contracts; since they are effective only for 
 the contracting parties, they are in fact statutory con- 
 ventions. 
 
 But, in reality, such clauses are the least important 
 part of the charter. Most of them are of an entirely 
 different character. Most of them deal with the con- 
 ditions under which the public utility shall be oper- 
 ated. If, for example, it is a railway or a tramway 
 service, the agreement settles what lines are to be con- 
 trolled and operated, how many trains shall be run, 
 how the safety of the employees and travellers shall 
 be secured. Other clauses deal with the conditions 
 under which the public may use the service pro- 
 vided; the price of tickets, the gas rate, the electric 
 light rate. In most charters there are clauses which 
 settle how many hours the company's servants shall 
 
124 LAW IN THE MODERN STATE 
 
 work, the minimum wage they shall be paid, the con- 
 ditions of employment, and the organisation of a pen- 
 sion fund. Such charters give the service concerned 
 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. 
 
 Such clauses have less a contractual than a legisla- 
 tive character; they are the statutory basis of the 
 service concerned. Were the service to be managed 
 by the state directly, all such matters would either be 
 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 were merely contractual. Such a con- 
 tract is effectual only between the parties to it. We 
 are compelled, therefore, to call them statutes; but 
 because they are established after an agreement be- 
 tween the government and the company they are 
 really "lois-conventions" 
 
 Clearly statute, therefore, is no longer conceived as 
 the sovereign command of the state. Its strength 
 derives from the f aqt that it is to serve the public in- 
 
SPECIAL STATUTES 12^ 
 
 terest. It organises the fulfilment of a public need. 
 When 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- 
 lic utility, confided to private enterprise, its organi- 
 sation and functioning are settled by agreement, the 
 statute which settles its situation is a statutory con- 
 vention. It is nevertheless still a statute with all the 
 characters of a statute, above all its character of a 
 general regulation to which a legal sanction is at- 
 tached. 
 
 VII 
 
 This is not mere theory. The decisions of the 
 Council of State are beginning little by little to rec- 
 ognise in the clauses of such a charter a statutory con- 
 vention. The terminology of the court and of the 
 Department of Justice is, indeed, still uncertain and 
 inexact, in that it reveals on occasion the persistence 
 of the contractual idea. But the phrases matter lit- 
 tle; the real fact is that the decisions definitely imply 
 the recognition that such charters are legislative in 
 character and the evolution I have described is thus 
 sanctioned by the highest authority. If such a char- 
 ter is a statute, with 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- 
 fected by that act can attack it before the courts. 
 This is actually what has happened in the cases. 
 
126 LAW IN THE MODERN STATE 
 
 I have already cited the Storch cases of 1905, in 
 which the Council of State admitted the plea that 
 the prefect could not permit a tramway company to 
 perform an ultra vires act. 19 
 
 It must be said, however, that the real problem in 
 this decision was not so much the violation of the 
 charter as the police power of the prefect. 20 In the 
 following year the Council of State accepted the plea 
 of an association of land owners and taxpayers 
 against the decision of a prefect of the Gironde who 
 had refused to compel a company to operate a certain 
 line in conformity with its charter. Though the de- 
 cision bears marks of hesitation, it opened up a new 
 path. 21 
 
 In 1907, the Council of State, acting on the conclu- 
 sions of M. Teissier, of the Department of Justice, 
 admitted a statutory character for the clauses of the 
 charters of the great railway companies. 22 Finally 
 in 1912 in the Marc case the Council of State finally 
 settled that every charter has a legislative character. 
 The lighting service of Paris is settled by a regula- 
 tion affixed to the municipal budget in accordance 
 with the charter voted by the town council and ap- 
 proved by decree of 1907. By a decision of 1908 
 the prefect of the Seine decided that the provision of 
 lighting for private streets and land thereto adjoin- 
 
 19 Chap. II, vi, supra. 
 
 20 Recueil, 1905, p. 117. 
 
 21 Recueil, 1906, p. 961; Sirey, 1907, iii, 33. 
 
 22 Recueil, 1907, p. 820. 
 
SPECIAL STATUTES '127 
 
 ing should be made under different conditions from 
 those for public streets and the land by the river. 
 The President of the Associated Chamber of Paris 
 Landowners went to the courts on the ground that the 
 charter, a law of service imposed on the administra- 
 tion no less than on private citizens, had been vio- 
 lated. The Council of State accepted the plea and 
 decided in substance that the decision of the prefect 
 of the service was in violation of the charter. 23 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 is really a statute controlling a public util- 
 ity. If it is a contract, it is inexplicable how private 
 citizens who are not parties to it can take advantage 
 of it. It is surely curious to annul an act on the 
 ground that it violates a supposed contract at the re- 
 quest of persons who have no connection with it. 
 The contradiction is clearly recognised in the govern- 
 mental note in the decision: "in pure theory the ar- 
 gument of the town is certainly right;" that is to say, 
 the plea of ultra vires is unacceptable. M. Jeze has 
 rightly pointed out how involved are the implica- 
 tions of such an attitude: "The government," he 
 says, 24 "believes that in pure theory the plea is bad, 
 
 23 Recueil, 1912, p. 75 ; Revue de Droit Public, 1912, p. 43. 
 
 24 Revue de Droit Public, 1912, p. 46. 
 
128 LAW IN THE MODERN STATE 
 
 but we cannot condemn with energy a theory which 
 finds favour with the Council of State. That court 
 in fact must accept, with the great majority of mod- 
 ern writers, the theory that the charter is not a con- 
 tract. Only in that event can its decisions, unques- 
 tionable in their result, be right in their theory. No 
 theory is good that does not fit the facts ; the Council 
 of State recognises that its theory is unworkable; let 
 it change it." M. Jeze is profoundly right; the the- 
 ory is only the hypothetical synthesis of the facts we 
 are given. If one only of those facts does not fit the 
 theory, it must be discarded for a more adequate one. 
 
 VIII 
 
 From another point of view the non-contractual 
 character of the charters of railway and tramway 
 companies is apparent. It is doubtless true that some 
 of its clauses, like those dealing with finance, create 
 a subjective legal situation, 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 
 contract. Nor is that explanation adequate which 
 finds the source of this power in the fact that there is 
 a contract but that it is made with the state. It is a 
 dangerous sophism of which the result is to give a 
 legal basis to arbitrary public power. Contract 
 means one thing and one thing only. It means the 
 
SPECIAL STATUTES 
 
 same thing in public law as in private. The finan- 
 cial clauses are contractual, and neither of the parties 
 can modify them, even if an indemnity is offered. 
 
 That part, however, of the charter which is a statu- 
 tory convention and governs the operation of the serv- 
 ice cannot be completely withdrawn from the action 
 of the administration. It is not to be forgotten it is 
 the fundamental idea of modern public law that the 
 first function of government is so to respond to the 
 public needs as to satisfy the economic situation of the 
 country. 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 
 fulfil its duty even when it thereby increases the cost 
 of operation. Nor 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. 
 
 The Council of State has often recognised this gov- 
 ernmental power. In a case already cited it decided 
 that the governmental ordinance of 1901 was not 
 ultra vires because it increased the burden of the great 
 railway companies which were operated under the 
 regulation of i846. 25 The court has decided simi- 
 larly in nine decisions relative to the decree of the 
 prefect of the service which imposed on the company 
 which ran the metropolitan railway certain obliga- 
 tions for securing the safety of passengers heavier 
 
 25 Recueil, 1907, p. 913; Sirey, 1908, iii, p. 1. 
 
130 LAW IN THE MODERN STATE 
 
 than the charter had originally contemplated. Sim- 
 ilarly in igio, 26 it upheld a decision of the prefect of 
 the Bouches du Rhone increasing the cost of opera- 
 tion of the Marseilles tramway company. 27 
 
 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 sys- 
 tem of railway transportation. The Chambers have 
 also implicitly recognised it when they voted the pen- 
 sion laws of 1909 and 1911, despite the protest of the 
 companies involved. 
 
 One question remains. When government, by its 
 unilateral decision, modified the conditions under 
 which a public utility is privately exploited and 
 makes them more onerous, has the private company a 
 right to compensation? In the decision cited above 
 the Council of State has decided in the affirmative; 
 as was implicitly recognised by statute in 1908. The 
 Council of State has not hesitated to recognise and 
 to sanction under the principle compensation for 
 the new burdens the state has imposed. It appears to 
 have based its action on the theory that the charter is 
 a contract. Such an argument is in fact contradic- 
 tory; for if all the clauses of the charter are contrac- 
 tual, the administration, even when it pays compensa- 
 
 26 Recueil, 1910, p. 97. 
 
 27 Recueil, 1910, p. 216; Revue de Droit Public, 1910, p. 270. 
 
SPECIAL STATUTES 131 
 
 tion, ought not to have the power of unilateral modi- 
 fication. 
 
 The truth is that the real idea involved is that of 
 the responsibility of the state. A public utility is 
 operated in the general interest. If its operation re- 
 sults in special damage to interested parties, the na- 
 tional exchequer ought to make the reparation. In 
 the case discussed, this explanation clearly fits the 
 facts; the state is simply responsible for the special 
 prejudice it has caused in the public interest. But I 
 shall discuss the notion of responsibility in a later 
 chapter. 
 
 However this may be, it is clear that the clauses of 
 those charters which regulate the operation of public 
 utilities are definite statutes, even though they are es- 
 tablished as the result of an agreement between the 
 government and a private company. They are statu- 
 tory conventions and clearly show how the imperial- 
 ist theory of the state 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 one is the act of an individual offi- 
 cial, the other of a parliamentary order. This dis- 
 tinction was not always perceived. It was customary 
 to see an administrative act in every order of the ex- 
 ecutive power or its agents, 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 
 agents of the executive are administrative acts. For 
 those agents, however different their situation may 
 be, the fundamental fact remains that they possess a 
 
 132 
 
ADMINISTRATIVE ACTS 133 
 
 common character due to their relation to the execu- 
 tive; they have some measure of public authority. 
 They can, of course, intervene only within the limits 
 of statute; but whatever they do has a certain sov- 
 ereign character, and cannot therefore be dealt with 
 by the courts whose competence is limited to the acts 
 of private citizens. The Act of Fructidor already 
 cited is as general and formal as possible on this 
 point: "The courts are strictly prohibited from tak- 
 ing cognisance of administrative acts of any kind." 
 
 The imperialist conception of an administrative 
 act is thus simple. Since it is the act of a govern- 
 mental official, it escapes the control of the courts. 
 It is easy to imagine how this would impress the 
 average citizen ; and indeed the French mind has still 
 a sort of superstitious terror in the faith of govern- 
 ment, a terror which it retains even though the char- 
 acter of sovereign power has little by little disap- 
 peared. The administration, indeed, still retains a 
 special character; but this character is not derived 
 from a supposed sovereignty without limit. The na- 
 ture of an administrative act is not derived from its 
 origin but from its purpose. It is still an individual 
 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 THE MODERN STATE 
 
 of an individual of which the character is derived 
 solely from the end it serves. 
 
 Naturally this transformation has not been com- 
 pleted in a day. It is the product of a labour now 
 almost a century old, and the theory that has gone to 
 its making is of sufficient interest to deserve more 
 than passing mention. A theoretical distinction has 
 been made between administrative acts done under 
 the cloak of sovereign power and the mere fulfilment 
 of orders by a government servant technically unre- 
 lated to sovereign authority. This 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 the- 
 ory 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. 
 
 I pointed out in the beginning of this chapter how, 
 from the sovereign power attributed to every admin- 
 istrative act, it was concluded that no authority, not 
 even the courts, could pass upon the legality of ad- 
 ministrative action. The constitution of the year 
 VIII indeed has given the Council of State the task 
 of "solving difficulties which arise from administra- 
 tion." Certain consular and imperial decrees 2 had 
 
 1 Traite de la Jurisdiction Administrative. 
 
 2 Consular Decree of 5th Nevose Year VIII; imperial decrees 
 of June 11 and Jujie 22, 1806. 
 
ADMINISTRATIVE ACTS 135 
 
 given it an organisation; and Napoleon created a 
 commission to prepare reports for the general assem- 
 bly. Such was the beginning of the Council of State 
 as a court 3 
 
 Despite these powers, the Council of State, in the 
 traditional phrase, exercised only an indirect justice; 
 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. 
 Prefectoral councils were created in the departments 
 and were given an extensive judicial power of pass- 
 ing upon administrative acts; but their courts were 
 always composed of administrators, nominated and 
 dismissed at the will of government. They thus pre- 
 sented no guarantee of indifference and capacity; and 
 the fact that these deliberations were conducted under 
 the presidency of the prefect, an immediate agent of 
 the government, made them useless. 
 
 Under these conditions a twofold movement grew 
 up. On the one hand it was urged that the special 
 administrative court should be abolished and every 
 case submitted to the control of the ordinary courts; 
 on the other hand legal theorists tried to limit the 
 number of cases where the intervention of an admin- 
 istrative act should withdraw the problem from the 
 control of the ordinary courts. The means by which 
 
 3 [On -the council of state and its organisation, cf. Hauriou, 
 Precis de Droit Administratif (8th ed.), 229f, 968f. For its his- 
 tory, cf. Laferriere, op. cit. i, 137-301.] 
 
136 LAW IN THE MODERN STATE 
 
 this result was to be attained was to make a distinction 
 between different administrative acts. 
 
 The first tendency was originally expressed in an 
 article by the Due de Broglie in 1828 (Revue fran- 
 gaise, March, 1828). From that time till 1872 the 
 suppression of administrative courts remained an es- 
 sential article in the liberal program. But the move- 
 ment came to nothing. Again in the name of the 
 great commission on decentralisation in 1872, M. Le- 
 fevre Pontalis wrote a long report urging the sup- 
 pression of prefectoral councils and the transference 
 of their functions to the ordinary courts ; 4 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 pow- 
 ers. It was to deal as a sovereign body with every 
 case in which the administration was conceived. 
 
 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 
 the sovereignty incarnate in the executive power re- 
 mained too strong; and the deduction was made that 
 the executive alone could thus judge the validity of 
 its orders. To give such power to the courts seemed 
 a flagrant violation of the separation of powers. On 
 the other hand, in men's minds there unconsciously 
 
 4 [This is still a great problem. Cf. Jeze, in Bulletin de la 
 Societe d'Etudes Legislatives, 1910, p. 25.] 
 
ADMINISTRATIVE ACTS 137 
 
 penetrated the idea of public service. They began 
 to see the intimate 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. 
 
 Nevertheless the movement towards suppression 
 has had considerable result. The Act of 1892 has 
 not only made the Council of State a sovereign juris- 
 diction ; but the learning and the impartiality of its 
 members has made of it a power which inspires an 
 unlimited confidence. 
 
 Alongside this legislative evolution legal theory 
 has had to find a system which, harmonising the con- 
 fused and often contradictory decisions, should main- 
 tain unbroken the principle of administrative separa- 
 tion, 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 ordi- 
 nary courts all cases derived from contracts. 5 In 
 his work on French Legislation and Jurisprudence 
 (i8io), 6 Locre maintained the same opinion. In the 
 classic works of Aucoc, Ducrocq, Batbie, and Da- 
 reste, a clear effort is made to distinguish two cate- 
 gories of administrative action of which one only 
 gives rise to the need for special administrative 
 courts. 
 
 5 Questions de Droit, V Pouvoir Judiciare (1829), vi, p. 306, 
 
 6 At p. 166, 
 
138 LAW IN THE MODERN STATE 
 
 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. 7 The 
 mass of these cases form what is termed the natural 
 administrative law. On the other hand, non-sov- 
 ereign administrative acts come in principle within 
 the sphere of the ordinary courts. They should be 
 brought before the administrative courts only by the 
 expressed provision of statute. Such cases form what 
 is called statutory administrative law. 
 
 The understanding of this is essential to a percep- 
 tion of the direction of modern political theory. The 
 distinction between sovereign and non-sovereign acts 
 comes from the desire to limit the judicial power of 
 the administration. 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 uni- 
 versally 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 between the 
 two divisions of administrative acts; it is necessary 
 also to define the character of each and the criterion 
 by which they may be distinguished. This was no 
 easy task. General and vague formulas it was of 
 
 7 Jurisdiction et Contentieux (1896). 
 
ADMINISTRATIVE ACTS 139 
 
 course easy to find ; but a precise analysis was in the 
 highest degree difficult. 
 
 M. Laferriere was satisfied with a very general 
 formula: "A double task," he says, 8 "is allotted to 
 administrative authorities. On the one hand they 
 manage the public funds, collect them and apply 
 them for their different purposes. In the fulfilment 
 of this task they perform what is called non-sovereign 
 acts; 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 
 laws, to operate the public services, to secure for citi- 
 zens the benefits of a system of justice. . . . The ad- 
 ministration then acts in an authoritative character, 
 and what it does it then does as a command, as an act 
 of its sovereign power." 
 
 Despite the vagueness of this statement, M. Lafer- 
 riere's authority was too great for it not to be ac- 
 cepted with unanimity. It was affirmed in every 
 book and there was no law school that did not teach 
 it. Yet, as a formula it hardly possessed the clear- 
 ness and precision that a legal principle demands. 
 This defect M. Berthelemy tried to remedy in his 
 admirable book on administrative law. He postu- 
 lates 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 
 
 8 Jurisdiction et Contentieux (1896), p. 6. 
 
140 LAW IN THE MODERN STATE 
 
 they do not imply the existence of sovereignty." 9 
 Nothing could appear more helpful or more precise. 
 
 It has 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 func- 
 tions are, it is claimed, appointed by unilateral act of 
 the state; they cannot form trade unions or profes- 
 sional associations; they cannot strike. Civil serv- 
 ants who perform non-sovereign functions are in the 
 same positions as private agents. Their relationship 
 to the administration is contractual. They can go on 
 strike and they can form trade unions in so far as 
 their functions enable us to analogise them to the or- 
 dinary workman. 
 
 For some years this has been the general trend of 
 doctrine. But even in the precise form that M. Ber- 
 thelemy gave it the distinction was still vague enough. 
 There is no one administrative activity that some time 
 or other has not been performed by a private citizen 
 and cannot to-day be conceived as being capable of 
 such performance. It is clear that the Council of 
 State, in determining the capacity of administrative 
 
 'Traite Elementaire de Digit Administratif (7th ed.), p. 139. 
 
ADMINISTRATIVE ACTS 141 
 
 jurisdiction, pays no regard to the distinction between 
 sovereign and non-sovereign acts. Nor is it less clear 
 that the responsibility of the state is involved when a 
 private citizen suffers from the act of such a service 
 as that of police which, if the distinction be accurate, 
 would obviously be sovereign in character. Finally, 
 and above all, the syndicalist movement in the Civil 
 Service has shown clearly that the proposed dis- 
 tinction would lead to impossible consequences. It 
 would involve the recognition of the right to 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. 10 
 
 These facts speak for themselves. M. Berthelemy 
 alone has remained faithful to a distinction which it 
 is impossible to maintain. In his very able argument 
 in the Feutry case, M. Teissier, as counsel for the 
 government, demonstrated conclusively its impossi- 
 bility. "This distinction," he said, "has no legal ba- 
 sis 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 applica- 
 tion of statutes and administrative ordinances. . . . 
 We may therefore say that neither the state nor its 
 officials ever act in the same situation as a private citi- 
 
 10 [See, on the other side, J. Paul-Boncour, Syndicats de Fonc- 
 tionnaires (1906); M. Leroy, Syndicats et Services Publics, 
 1909.] 
 
142 LAW IN THE MODERN STATE 
 
 zen." This ably puts the essential point. Adminis- 
 trative 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 
 
 That is not, 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 demon- 
 strated by the consequences of its action. 
 
 Sometimes administrative acts result in a subjective 
 legal situation where the government or the private 
 citizen undertakes a definite obligation. We have 
 then a declaration of will from a public official the 
 object of which is to create for the purposes of a pub- 
 lic service a subjective legal situation. Such a situa- 
 tion is the synthesis of the general elements of a legal 
 act. We have first a declaration of will : necessarily, 
 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 announce- 
 ment of official purpose must base itself upon statute. 
 Some acts are by their nature beyond official power. 
 On the other hand, the official is legally limited to a 
 definite field and within this field to definite pur- 
 poses. This is called his capacity. Any purpose 
 outside his capacity is ultra vires. 
 
 The second essential element in every legal act, es- 
 
ADMINISTRATIVE ACTS 143 
 
 pecially in every administrative act of a legal kind, is 
 the end it has in view. This element is coming more 
 and more to be of decisive importance. For an offi- 
 cial act to be legal it is essential it should have in view 
 a socially valuable aim in accord with the objective 
 law of the country in question. Metaphysical consid- 
 erations apart, every act of will has a motive behind 
 it and the value of every administrative act is the ob- 
 ject 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 ca- 
 pacity 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. 11 
 In private law the change is precisely similar. 12 For 
 a long time the Civilians considered only the result 
 of an act of will. It is of course true that in the Code 
 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 
 which, to the great astonishment of the classic author- 
 ities, make the element of purpose and its social value 
 of the first importance. 
 
 The fundamental thing is not the character of the 
 agent who acts, it is not the result that he achieves, but 
 
 11 [C/. Prof. Dicey 's comment, Law of the Constitution (8th 
 ed.),p. 394f.] 
 
 12 Cf. Duguit, Les Transformations Generates du Droit Prive 
 (1912), p. 52seq. 
 
144 LAW IN THE MODERN STATE 
 
 the purpose that determines his act. If an adminis- 
 trative act 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, it is because the declared purpose 
 of the agent, who is simply an individual like any 
 other and has no special superiority in himself, is de- 
 termined by the end he has in view the public serv- 
 ice. A unilateral administrative act has been called 
 sovereign in character, because, in accord with the 
 current imperialist and individualist theory, it was 
 not imagined that the legal situation could be created 
 without a contract, or at least that a will more power- 
 ful than other wills could create by its own force a 
 legal result. 
 
 If many administrative acts are unilateral, many 
 are also contractual. When an official and a private 
 citizen agree, the contractual declaration is the basis 
 of the administrative act. Acute search has not dis- 
 covered a criterion by which to say when the admin- 
 istration can act unilaterally and when in contractual 
 fashion. Every situation needs its 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 145 
 
 the socialisation of law on the one hand and the grow- 
 ing 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 why it is necessary to inquire when the de- 
 termination is unilateral or contractual. It derives 
 its nature from the end it serves. This in itself shows 
 how administration has become subject to law; it 
 shows also in what fashion the theory of the state is 
 changing. That is why the border line between pub- 
 lic and private law is becoming, more and more per- 
 haps, 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 
 act has one common character: the question raised 
 by every administrative case is the question of know- 
 ing 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 
 of the administration were distinguished. But, as 
 soon as it is, on the contrary, seen that an administra- 
 tive 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 sup- 
 press it or to modify it. When the administration. 
 
146 LAW IN THE MODERN STATE 
 
 repeals or changes an act it is. simply because this act 
 has created no obligation; or at least an obligation 
 that permits of revocation. 
 
 Here again, were there need of it, we could infer 
 the elimination of sovereignty. The Council of State 
 has several times applied this theory and its decisions 
 have gone without criticism. M. Jeze has summa- 
 rised decisions of three cases dating from 1910 and 
 1911 as follows: "Where a legal act has been com- 
 pleted in accordance with law, it cannot be revoked 
 in the sense of being considered as not having oc- 
 curred, 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 
 the first . . . nor is this always possible. It may 
 happen that the legal act it is desired to recall has 
 created so special a situation that it does not admit of 
 change; in which event any later act is useless." 13 
 
 IVi 
 
 The character of administrative acts based on 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 
 state with its citizens is no longer necessary. It is 
 easy enough to understand the difficulty that con- 
 fronts the imperialist system. If the state, it may be 
 said, is by definition a sovereign person, it preserves 
 
 ls Revue de Droit Public (1911), p. 61. 
 
ADMINISTRATIVE ACTS 147 
 
 this character in all its acts whether contractual or 
 unilateral. As a result, the state cannot be bound 
 by contract because, when it is so bound, its per- 
 sonality would be no longer supreme; it would then 
 cease to be sovereign, since the nature of sovereignty 
 is to be without subordination to any will what- 
 ever. 
 
 In the imperialist system an elaborate hierarchy 
 of theories has been constructed to justify the attribu- 
 tion of an obligatory character to the contracts of the 
 state. Individualism, of course, can explain it suffi- 
 ciently well by saying that sovereignty is always lim- 
 ited by the natural rights of the individual. The 
 state therefore can only proceed by way of its con- 
 tract when it encroaches on the realm reserved for 
 individual rights. 
 
 In Germany, the theory of the state as a fiscal 
 person, ably defended in France by M. Ducrocq, has 
 had much vogue. It insists that the state has two 
 personalities, one sovereign, and the other financial, 
 the second being created by the sovereign act of the 
 first. In this conception it is the state as a financial 
 person alone which can be a party to a contract; be- 
 ing non-sovereign, it has the attributes of a private 
 citizen. 14 This theory of a double personality has 
 been keenly criticised by French and German jurists, 
 
 "Hatschek, Die rechtliche Stellung des Fiscus (1899); Du- 
 crocq, Droit Administratif (7th ed.), iv, p. 11 seq. [Cf. the way 
 in which, in England, the crown can be sued on contracts, but not 
 for the torts of its agents. Dicey, Law of the Constitution (8th 
 ed.), p. 556, and Laski, Harv. L. Rev., March, 1919.] 
 
148 LAW IN THE MODERN STATE 
 
 notably by Jellinek and Michoud. 15 The latter has 
 given to this doctrine of personality a twofold impli- 
 cation. Sometimes the state appears as sovereign ; it 
 then commands; sometimes it appears as a private 
 person, it then contracts. It remained for M. 
 Ihering to invent, and M. Jellinek to develop, the 
 ingenious theory of auto-limitation. 16 The charac- 
 ter of a sovereign will is to be completely self-deter- 
 mining. When the state contracts it consents, by an 
 effort of its own will, to limit itself. But that will, 
 even in so limiting itself, by being thus completely 
 self-determining, remains sovereign even when it 
 submits to contract. 
 
 The mere statement of these theories is the evi- 
 dence of their futility. No one can deny that the 
 state is bound by contract, and this unanimity is evi- 
 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 
 by which the contractual obligation of the state was 
 suppressed or modified would be ultra vires; and the 
 courts would condemn the state exactly as 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. 17 A 
 contract is a legal act with the same character both 
 
 15 System der Offentliche Subjektiven Rechte (1905), p. 209; 
 Michaud, De la Personnalite Morale, I, 262. 
 
 16 Allgemeine Staatslehre (1905), p. 357. 
 
 17 [It is of interest to compare American experience on this 
 head. Fletcher v. Peck, 6 Cranch, 135.] 
 
ADMINISTRATIVE ACTS 149 
 
 in public and in private law; or rather no distinction 
 exists 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 
 its obligations, the courts do not pass upon the ques- 
 tion of the responsibility that derives from an act of 
 parliament. What they do is to pass upon a contract 
 and on the extent of an obligation which the parlia- 
 ment cannot suppress. 
 
 The Council of State gave in 1896 and 1904 two 
 typical decisions on this question. By an agreement 
 made in 1860 between the French government and 
 certain ecclesiastical foundations of Savoy, the latter 
 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. The Council of 
 State by its first decision of 1896 annulled the minis- 
 terial order and enjoined the Minister to liquidate his 
 obligation that is to say, despite Parliamentary de- 
 cision to the contrary, the French state was ordered to 
 pay its legally contracted debt. 18 In the debate of 
 December 22, 1899, M. Caillaux, then Minister of 
 Finance, asked for a vote of credit to comply with 
 this decision. He clearly affirmed that the contracts 
 of the state, despite any contrary decision of parlia- 
 
 18 Recueil, 1896, p. 660. 
 
LAW IN THE MODERN STATE 
 
 ment, gave rise to an obligation. This decision was 
 upheld in 1904 under similar circumstances. 19 The 
 clear protest of M. Millerand, the Minister of Public 
 Works, in the Chamber against the proposal of 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 
 which are incontestably administrative in their na- 
 ture. They are not, however, legal in character and 
 may therefore be called material administrative acts. 
 The term is applied to the innumerable activities of 
 state officials to assure the operation of public serv- 
 ices and particularly those we have called the indus- 
 trial services like transportation and the telephone 
 system. The number and the complexity of such 
 acts is growing with the increasing complexity of the 
 state. They are not legal acts because they are not 
 performed to create of themselves a legal situation; 
 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 con- 
 stitute the formal conditions by which such an act 
 
 19 Recueil, 1904, p. 533. 
 
ADMINISTRATIVE A C T $> 151 
 
 becomes valid and thus make part of it. Often again 
 they are the execution of such an act and thus di- 
 rectly related to it. Even when they 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 analysis, if somewhat arid, is nevertheless nec- 
 essary. 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 
 a sovereign will. All administrative acts are per- 
 formed by a government official with a view to se- 
 curing 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 
 its connected place in the whole system. A statute is 
 a general regulation which creates, organises and 
 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, there- 
 fore, gives rise to the question as to whether it con- 
 forms to the law of the service concerned. 
 
 VI 
 
 If this is true, the consequence from the point of 
 view of administrative law is clear. An administra- 
 
152 LAW IN THE MODERN STATE 
 
 tive case deals with any question relative to govern- 
 mental operations. Every case of this kind comes 
 within the jurisdiction of the administrative courts 
 and the nature of the act concerned is immaterial. 
 
 The evolution of administrative law is entirely 
 antithetic to what the second half of the nineteenth 
 century seemed to expect and to what M. Laferriere 
 in 1887 and 1896 predicted. In the imperialistic 
 theory, sovereignty appeared in every administrative 
 act; 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 
 common character of administrative acts came from 
 their similar destination to a public service. It then 
 became necessary, from the point of view of adminis- 
 trative law, to treat them as identical and to with- 
 draw 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 estab- 
 lished a general administrative competence by reason 
 of the sovereignty implied in every governmental act, 
 just as to-day it has been established by reason of the 
 purposes those acts must serve. 
 
 It would be to neglect an important fact not to add 
 that this evolution has been hastened, on the one hand 
 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 153 
 
 Many of the ordinary courts 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 circum- 
 stances stronger than the courts. It is indubitable 
 that even the highest tribunals are still impressed by 
 the superstitious fear that administration inspires in 
 a Frenchman and that many are too prone to con- 
 sider an administrative act as a sacred thing. It is 
 not then astonishing that private citizens should have 
 little confidence in the ordinary courts where their 
 case directly or even remotely concerns itself with an 
 administrative problem; and it was obvious enough 
 that their hopes 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 ' 
 the individual against the arbitrary character of ad- 
 ministrative power. 
 
 Every question of jurisdiction, therefore, comes 
 down to this : Is the administration involved, or is It 
 not, when an act is related to the operations of gov- 
 ernment? If it is, the jurisdiction belongs to the ad- 
 ministrative courts, if it is not, it belongs to the ordi- 
 nary courts. 
 
 It is perhaps worth while to cite some of the cases 
 which mark the principal stages in this evolution. 
 In 1903 the Council considered a case which arose 
 out of a meeting of a general council, which was 
 
154 LAW IN THE MODERN STATE 
 
 doubtless a unilateral act, but to which no sovereign 
 character belonged. The Council had offered a re- 
 ward for the destruction of vipers. 20 One Terrier 
 brought so many vipers 7 heads that he used up and 
 went beyond the actual sum allotted to the depart- 
 ment for the purpose. The prefect refused to pay 
 him his due, and Terrier therefore sued the depart- 
 ment before the Council of State. The latter ac- 
 cepted the plea on the ground that the general coun- 
 cil had organized what was virtually a public utility, 
 which the representative of the government com- 
 pared to the wolf-destruction of other departments. 
 He acted therefore in a case where the operation of a 
 public service was concerned ; and as a consequence 
 the Council was competent to take cognizance of the 
 matter. 
 
 The Council of State has -always admitted its ad- 
 ministrative jurisdiction for cases arising out of state 
 contracts. It used, however, to be said that where 
 the case was concerned with the local authority, juris- 
 diction belonged to the ordinary courts. To-day the 
 Council of State claims jurisdiction over every case, 
 local or national, where a public contract is con- 
 cerned. This was clearly settled in the Theroud case 
 in 1910, where the town of Montpelier made an 
 agreement for the removal of dead animals. 21 It was 
 held that, since the agreement had in view the sani- 
 
 20 Recueil, 1903, p. 94; Sirey, 1903, iii, 25. 
 21 Recueil, 1910, p. 193; Sirey, III, 1911, p. 17; Revue de 
 Droit Public, 1910, p. 353. 
 
ADMINISTRATIVE ACTS 
 
 tary security of the population, it was a general gov- 
 ernmental act, and in default of a precise text hand- 
 ing it over to any other court, jurisdiction belonged 
 to the council of state. 
 
 So far as the venue of simple administrative mate- 
 rial acts is concerned, there must always be a doubt 
 as to responsibility. Evolution here is even more 
 characteristic than in the case discussed. 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 set- 
 tled 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. 
 The real motive of the decision was not admitted. A 
 beginning was made, not without hesitation, of ad- 
 mitting that the state was responsible for acts arising 
 out of the performance of its functions even while 
 there was a dim feeling that this responsibility vio- 
 lated the hitherto undoubted theory of sovereignty. 
 It was for this reason that it had been desired to keep 
 exclusive jurisdiction for the administrative author- 
 ities; nevertheless, under the Second Empire the 
 Court of Cassation several times admitted the com- 
 petence of the ordinary courts. The question came 
 before the Court of Conflicts which had just been 
 created by the law of May 24, 1872. Damages had 
 
156 LAW IN THE MODERN STATE 
 
 been claimed against the state as the result of an acci- 
 dent 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 Jus- 
 tice, the Court of Conflicts decided that the case was 
 administrative in nature. 22 But the decision no 
 longer cited the laws of 1790 and 1793. I* appealed 
 vaguely to the general principle of separation of pow- 
 ers. It declared that "state responsibility for private 
 damage caused by officials can be governed, not by 
 principles of the Criminal Code, since the responsi- 
 bility is neither general nor absolute, but by special 
 rules which vary with the need of government and 
 the necessity of harmonising state rights and private 
 rights." 
 
 Vague and unscientific as these motives may be, 
 they are interesting because of the evolution they 
 presage. The Court clearly felt the growing sense 
 that the state must be made responsible for its acts 
 even while its responsibility was different from that 
 of the citizen in his private relations. It did not yet 
 formulate, of course, the distinction between the sub- 
 jective responsibility for fault and the objective re- 
 sponsibility for risk. The definition of this twofold 
 notion came later. But the courts in 1873 realised 
 that state responsibility cannot be a responsibility for 
 fault and that the ordinary courts lacked jurisdiction 
 simply because it is with this responsibility that they 
 
 22 Sirey, 1873, II, 153, 
 
ADMINISTRATIVE ACTS 157 
 
 deal. So it should be when the problem is that of a 
 service to which sovereignty is not attached. The 
 decision is fundamental. It tends to rescue for the 
 governmental courts all cases which concern govern- 
 mental 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 
 a whole evolution. The ordinary courts accepted it 
 and refused to deal with cases where the responsibil- 
 ity of the state was concerned unless some definite 
 statute gave them jurisdiction. Logic completed 
 what chance had begun. Suits against communes, 
 departments, public offices for responsibility arising 
 from their service, came before the Council of State 
 in the first hearing in the final decision. There was 
 much hesitation; even in 1906 the Court of Conflicts 
 decided that the rules applicable to the responsibility 
 of the state are different from those applicable to the 
 communes. Logic, however, was successful. The 
 idea of public service has become the fundamental 
 basis of public law. 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 29, 1908, the Court of 
 Conflicts recognised that it could receive a plea 
 against the department. The Feutry case, based on 
 the remarkable conclusions of M. Teissier, as gov- 
 ernment counsel, completes the evolution that the 
 
158 LAW IN THE MODERN STATE 
 
 Blanco case had begun. 23 Action was brought against 
 the department of the Oise on the ground that it was 
 responsible for the arson of a lunatic who had escaped 
 from the departmental asylum of Clermont. The 
 Court of Conflicts, after disagreement, decided, un- 
 der the presidency of M. Briand as Minister of Jus- 
 tice, 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 simple and sufficient reason for deciding that 
 the case was administrative in nature was the fact 
 that it dealt with the operation of a public service. 
 The same answer must obviously be givisn where the 
 public authority is local and not national; and this 
 has been the effect of numerous decisions since 1908 
 of every kind of court. 24 
 
 VII 
 
 The business of administration is thus the manage- 
 ment of the business of the state in conformity with 
 the law. Just as sovereignty has been eliminated 
 from the sphere of legislation, so has it passed from 
 the sphere of administration. The administration of 
 
 23 Recueil, 1908, p. 208; Sirey, 1908, III, 98; Revue de Droit 
 Public, 1908, p. 266. 
 
 24 Cf. also the Fonscolombe case, 1908; Recueil, p. 449. See 
 further Revue Generale d'Administration, 1910, III, 194; Sirey, 
 1911, II, p. 281. 
 
ADMINISTRATIVE ACTS 159 
 
 the state is conducted under the control of adminis- 
 trative courts composed of administrative magis- 
 trates. Cognisant of the conditions under which it 
 is necessary to operate the state, they afford the nec- 
 essary guarantees of independence and impartiality. 
 They reconcile the interests of the state with those of 
 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 Rechstaat. 
 
 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 to outline the general character of this 
 development. In Germany its character has been 
 clearly outlined by Professor Mayer. "The final re- 
 sult," he writes, 25 "is to identify administrative justice 
 with jurisdiction in the strict sense of the word that 
 is to say, the declaration of the law in its individual 
 sense." "Our starting point," he writes again, "is 
 those cases in French law where the plea of ultra vires 
 has been made. This has had some influence, even 
 though it has been hardly understood, on the develop- 
 ment 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 
 for nullification where the law is violated." Mayer 
 
 25 Droit Administratif Allemand, I, 210, 247. 
 
160 LAW IN THE MODERN STATE 
 
 then explains that German jurisprudence has not yet 
 arrived at the point where authority could be nega- 
 tived 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 England has made their evolution different. Yet 
 they enter also with the general current of modern 
 law. They tend to organise the judicial control of 
 administrative activity. French influence is appar- 
 ent in this evolution even though it is only at its be- 
 ginning. Such control, however, is as yet extremely 
 narrow. It has also 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 mis- 
 statement of the issue. In reality so-called cases 
 against the administration in England and America 
 are simply cases against the individual administra- 
 tions, and as Hauriou justly observes, "the defect is 
 the absence of the two great methods of French ad- 
 ministrative 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 organ- 
 ised, or rather the ordinary courts are being given 
 special powers, to deal with governmental cases, 
 either where responsibility is concerned, or where the 
 26 Precis de Droit Administratif (1911), p. 935, n. 1. 
 
ADMINISTRATIVE ACTS 161 
 
 legality of the administrative acts is called into 
 question. 
 
 In England the ordinances of the central govern- 
 ment 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 the beginning of an ad- 
 ministrative law and the evolution will be rapid. 27 
 In the United States the development has gone fur- 
 ther. A statute of 1855 established a court to deal 
 with all claims based either on law or contract made 
 against the central government. At first the deci- 
 sions of this court had not the force of law. They 
 were simply the basis of bills 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. 
 
 A complicated system of writs enables the Ameri- 
 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 
 controlled. However humble he be, once he has a 
 
 27 Cf. Dicey, Law of the Constitution (8th ed.), chap, xii, [and 
 his paper in the Law Quarterly Review for 1915 on the Growth 
 of Administrative Law in England]. 
 
162 LAW IN THE MODERN STATE 
 
 discretionary power, he exercises it protected from 
 all control. However powerful he may be, he must 
 act in conformity with the law." 28 
 
 In several cases special statutes have expressly 
 given the courts the control over the discretionary 
 power of the administration. Certain statutes, again, 
 have definitely organised the means of protest against 
 the decisions of administrative officials before the 
 Court of Quarter Sessions or before the County 
 Courts which have almost everywhere replaced them. 
 In New York, for example, any interested person 
 may protest before the County Court against deci- 
 sions of the Superintendent of Charities relative to a 
 home for the poor. 
 
 So has been slowly organised the legal protection 
 of the individual against the state. It is an incom- 
 plete 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. I shall show in the next chap- 
 ter how French law has freed itself from this concep- 
 tion. On the other hand, the fact that the control of 
 the courts belongs as a rule to the ordinary tribunals 
 which by origin and by nature are foreign to the task 
 of administration deprives the private citizen of a 
 guarantee given to him by the French system. 29 The 
 
 28 Goodnow, Principles of Administrative Law in the United 
 States, p. 322. 
 
 29 [Professor Dicey, of course, argues in an exactly contrary 
 sense. Cf. the passage cited in the last note but one. 1 
 
ADMINISTRATIVE ACTS 1163 
 
 American courts are, where the executive power is 
 concerned, curiously timid. "For political reasons," 
 writes Professor Goodnow, 30 "the courts have gener- 
 ally explained that they will not exercise their juris- 
 diction when to do so would bring them into direct 
 conflict 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 dif- 
 ferent states. This progressive evolution of French 
 administrative law was strikingly affirmed at the 
 Congress of Administrative Sciences held at Brussels 
 in August, 1910. It became there apparent that no 
 modern public law so completely protects the private 
 citizen as the French. France leads the way in pri- 
 vate as in public law. In private law, the cause is 
 the antiquity of its code which after more than a cen- 
 tury, allows its lawyers and its courts to free them- 
 selves from the bonds of too narrow an interpretation. 
 In public law the cause is twofold. In the first place, 
 it has no code at all. In the second place a Council 
 of State, in origin and procedure an administrative 
 court, in independence and impartiality, is like an or- 
 dinary court. The two elements have combined to 
 create a body of law providing the fullest protection 
 to the private citizen. 31 
 
 30 Op. cit, p. 323. 
 
 31 [Professor Dicey 's citation of De Tocqueville's adverse opin- 
 ion is here of interest. GEuvres Completes, I, 174-5. L'Ancien 
 Regime et la Revolution, p. 81.] 
 
CHAPTER 
 
 THE BORDERLINE OF ADMINISTRATIVE 
 
 LAW 
 
 ADMINISTRATIVE law is, however, more complex in 
 nature than the preceding chapter has suggested. 
 The part it has followed and the transformation it 
 has undergone are worth discussing for the light they 
 shed on the change in public law. 
 
 The imperialist theory of the state corresponds to 
 the individualist concept of private law. It consid- 
 ers the state as a possessor of sovereignty which is 
 manifested, not merely in law, but also in adminis- 
 trative acts. Private law conceives of the individual 
 as the subject of a certain number of rights which are 
 synthesised into the two rights of liberty and prop- 
 erty. We are always, that is to say, dealing with the 
 state that possesses the subjective rights of liberty and 
 property. The state could not touch either of these 
 rights ; or at least it could limit them only to a fixed 
 degree and under certain conditions. In such a sys- 
 tem, therefore, every administrative case fundamen- 
 
 164 
 
ADMINISTRATIVE LAW 165 
 
 tally gives rise to the question as to whether the sub- 
 jective right of the individual has or has not been 
 attacked by the state, in its administrative activity, 
 beyond its legal limits. Every administrative case 
 thus poses a question of subjective right. 
 
 Administrative law is thus exclusively subjective. 
 For the government, the question it raises is the limit 
 of sovereignty. For the private citizen, the question 
 is whether the subjective rights of liberty and prop- 
 erty have been violated. Every case, that is to say, 
 leads to the recognition of a subjective right either of 
 the government or of the private citizen, and must 
 consequently end in the condemnation of one or the 
 other. This is what was meant by Ducrocq when 
 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 en- 
 tirely different. In some, the Council annuls the ad- 
 ministrative act or refuses the annulment. In others 
 there is annulment accompanied by the condemna- 
 tion of penalties against a private citizen or the gov- 
 ernment. If there are two such different categories 
 of decisions, there are surely two categories of cases. 
 
 For a long time, indeed, we have distinguished, in 
 
 1 Droit Administratif (7th ed.), II, p. 17. 
 
166 LAW IN THE MODERN STATE 
 
 the technical terms, between a case involving pen- 
 alties and a case where an ultra vires act is simply an- 
 nulled. This terminology has behind it the conse- 
 cration of statute. In the 9th Art. of the Act of 1872 
 organising the Council of State of the Third Repub- 
 lic, it is enacted as follows : "The Council of State 
 shall decide in a sovereign sense all cases of adminis- 
 trative law and requests to annul on the ground of 
 ultra vires acts of the different administrative author- 
 ities." As the result of the favour accorded by the 
 decree of November 2, 1864, and of the confidence 
 inspired by the Council of State, cases in which the 
 plea of ultra vires was concerned grew in number. 
 The Council of State, indeed, insisted on treating 
 such a plea as subsidiary to the first and on receiving 
 it only when no other remedy was possible. Never- 
 theless so just has been the number of such cases this 
 latter argument has been abandoned. 
 
 Its abandonment was necessary in order to deter- 
 mine the real distinction between ultra vires adminis- 
 trative cases and the ordinary type. Dominated as it 
 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 per- 
 ceive 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 igno- 
 rant. Sovereignty, on the one hand, and individual 
 
ADMINISTRATIVE LAW 167 
 
 right, on the other, were in process of disappearance. 
 
 1 cannot even summarise all that has been written 
 on the plea of ultra vires in administrative law. 2 But 
 something must be said of the theory of M. Laferriere 
 whose book, as I have pointed out, marks an epoch in 
 the evolution of public law. 3 He distinguishes be- 
 tween cases of simple annulment and cases of com- 
 plete jurisdiction. In the first he argues the court 
 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 
 the plea of ultra vires. Four causes give rise to it: 
 There may be violation of an enabling act, of a for- 
 mal statute, abuse of power, or violation of a funda- 
 mental statute. In the last case the plea can only be 
 made by the person who has directly suffered from 
 the violation of his right. Such a plea, moreover, is 
 always a subsidiary method. 
 
 But none of this is in reality explained. Why dis- 
 tinguish between annulment and complete jurisdic- 
 tion? What is the basis of it? We are not told. 
 Why should the plea of ultra vires be merely acces- 
 sory? No reason is suggested. Why, in certain 
 cases, is the plea open to any interested party? Why, 
 in other cases, is it only open to a person whose sub- 
 
 2 [C/. Aucoc, in Comptes Rendus de 1 'Academic des Sciences 
 Morales et Politiques, 1875; Laferriere, Traite (2nd ed.), II, 
 394-560; Tournyol du Clos, Essai sur le recours pour exces de 
 pouvoir (1905).] 
 
 3 Laferriere, Juridiction et Contentieux (2nd ed.), II, 394. 
 
168 LAW IN THE MODERN STATE 
 
 jective right has been attacked? To scrutinise the 
 theory at close quarters is 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. The plea of ultra vires 
 is no longer of secondary importance. It is not fun- 
 damental where a general council draws up a regu- 
 lar clause, even though the plaintiff may have made 
 his plea against such choice. Any interested person, 
 having merely a moral and indirect relation to the 
 act, may ask for the cessation of its results. The plea 
 no longer aims at protecting the subjective right of 
 the private citizen. The Council of State has admit- 
 ted a plea against irregular nomination to the Civil 
 Service of any person having the necessary qualifica- 
 tion for such office and even the plea of a profes- 
 sional association of officials belonging to the service 
 concerned. 4 This does not of course mean that any 
 qualified lawyer who may protest against an irregu- 
 lar nomination to the Bench has himself to be nomi- 
 nated. 
 
 In such circumstances Laferriere's theory is use- 
 less. We must search in other directions for the an- 
 swer. Everything becomes clear once we eliminate 
 the idea of subjective right. We must replace it by 
 the fundamental notion of modern law. We must 
 
 4 The cases are numerous; cf. especially the Lot-Molinier de- 
 cision, Recueil, 1909, p. 780; the Alcindor decision, Recueil, 1906, 
 p. 906; Ibid, 1908, p. 1016; Ibid, 1910, p. 719. 
 
ADMINISTRATIVE LAW 169 
 
 replace it by the concept of a social function, of a 
 legal situation to which the idea of public service is 
 intimately bound. The noble jurisprudence of the 
 Council of State on the plea of ultra vires is only the 
 translation of these ideas into practical terms. 
 
 II 
 
 The question raised in an administrative case is 
 whether there exists a subjective legal situation and 
 the extent of it. It arises when, after an administra- 
 tive act has been performed, we have to know if it 
 has created a subjective legal situation or if it has 
 modified or destroyed a pre-existing situation. When 
 such a question is raised, it is the business of the ad- 
 ministrative courts to analyse it and to measure the 
 penalty. Its decision has then a merely relative and 
 individual bearing parallel to the situation of which 
 it is the expression. The plea can only be made by 
 the person who claims to have benefited from the sit- 
 uation whose existence or extent is called into ques- 
 tion. 
 
 It may be, on the other hand, that the only question 
 the case raises is whether the administration has in 
 the most general sense violated the law. That is 
 simply a question of objective law that the judge de- 
 cides. The case comes before an objective tribunal. 
 The judge simply states whether the law has or has 
 not been violated. If he thinks it has not been, he 
 rejects the plea; if he thinks it has, he annuls the pro- 
 
170 LAW IN THE MODERN STATE 
 
 tested act. His decision is purely general. The act 
 is annulled for every citizen and not less for the ad- 
 ministration itself. The judicial decision in such a 
 case is as general as the statute that has been 
 violated. 
 
 Such a plea is certainly not admissible against 
 every administrative act. Obviously, for example, 
 there cannot be annullment of the material work of 
 the administration. It is possible to annul an effect 
 of law; we cannot annul a fact. Nor is it .admissible 
 where the administrative act gives rise to a subjec- 
 tive situation. It is not then a question of legality 
 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 
 act. In other words, where the situation is subjec- 
 tive, the administrative law is personal also. The ob- 
 jective 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 govern- 
 ment 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. A clear ex- 
 
ADMINISTRATIVE LAW 171 
 
 ample is the nomination of a civil servant. This does 
 not in reality produce any effect of law. It does not 
 create capacity nor does it give the official status. 
 It is simply the condition that gives rise to that legal 
 situation we call the status of a civil servant with all 
 that it entails capacity, regulation, salary, pension. 
 Very often the deliberations of an administrative 
 council are a declaration of will from which an act 
 draws its vitality. A grant from a general or mu- 
 nicipal council, for instance, is the necessary condi- 
 tion from which the prefect or the mayor has the 
 capacity to issue an ordinance. 
 
 These different acts, like all regulating acts, have 
 an objective character. They are not individual but 
 general. They affect the whole citizen body, partic- 
 ularly every one affected by the department that does 
 the act. In fact, they do not themselves directly pro- 
 duce any legal result; but since they condition the 
 application of the statute which does create that ef- 
 fect, they indirectly have this consequence. They 
 are acts of will and therefore cannot escape the con- 
 trol of the courts. Objective in character, they give 
 rise to an objective process. A plea may be brought 
 by any interested citizen. The judge does not penal- 
 ise ; he either annuls or refuses to annul, and his de- 
 cision is purely general in its bearing. 
 
 Such objective administrative law, most clearly 
 seen in the sphere of ultra vires acts, is the great and 
 original creation of French jurisprudence. It to-day 
 dominates all public law, I have now to show its 
 
172 LAW IN THE MODERN STATE 
 
 extent and development and how its application fits 
 in with the fundamental concept of public service. 
 
 Ill 
 
 French law has specially organised certain objec- 
 tive pleas. A notable example is the case of electors, 
 where the simple question is whether the procedure 
 has been legal and where, if illegality results in an- 
 nulment, the result is obviously general. Similarly 
 with the jurisdiction of the Court of Conflicts; the 
 only question for the court is the legality of the pro- 
 cedure. Here, by hypothesis, the administrative law 
 is objective. 
 
 On the other hand, the plea of ultra vires is, so to 
 speak, the general synthesis which dominates the 
 whole of law. An objective act, whether done by 
 the president of the Republic, or by the humblest of- 
 ficial, may be attacked by any citizen on the ground 
 of ultra vires and the Council of State will pass on its 
 legality. The cost is a 60 centime stamp. No right 
 is invoked. The citizen is living under trie regime 
 of state 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 
 interest before admitting the plea. That interest, 
 however, may be as indirect as a tax payer's 5 interest 
 in seeing that the Court of his commune does not 
 
 5 Casanova decision, Recueil, 1901, p. 333, 
 
ADMINISTRATIVE LAW 173 
 
 make irregular contracts, 6 or a simple moral interest, 
 as where individuals who have the qualifications for 
 a certain official position may prevent the nomination 
 of those who lack the necessary titles. 
 
 The objectivity of the plea of ultra vires is clearly 
 in the fact that where the Council of State deals with 
 the case it 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; 
 but that is only a direct invitation to the minister to 
 conform to the verdict of the courts. Annullment is 
 perfectly general and binding upon citizen and gov- 
 ernment alike. 
 
 I said above that there was a moment when juris- 
 prudence appeared to admit several methods of 
 pleading against administrative acts incapacity, 
 wrong forms, abuse of power, violation of statute; 
 and it applied the different rules in its reception of 
 the plea. To-day no such distinction is made. The 
 only question is whether any statute whatever has 
 been violated. The question is always the same. 
 The conditions under which a plea is received are 
 always the same. Sometimes it still seems as though 
 the distinction is drawn between incapacity, viola- 
 tion of statute, and abuse of power; but this is rather 
 the terminology of custom than the admission of 
 reality. 7 
 
 The plea of ultra vires may be made against any 
 
 6 Lot-Molinier decision, Recueil, 1903, p. 780. 
 7 C/. Hauriou, Droit Administratif (1911), p. 429; Tournyol 
 du Clos, op. cit. 
 
174 LA W IN THE MODERN STATE 
 
 objective act of any governmental institution or offi- 
 cial with the exception of parliament, the two cham- 
 bers, the courts and judicial offices. The reason for 
 their exception is of course obvious. There exists, 
 indeed, special control of legal personages and ap- 
 peal against the decision of a court or a judicial offi- 
 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 
 basis of the exception is the persistence still of the old 
 idea that parliament and the chambers directly ex- 
 press the sovereign will of the nation. I pointed out 
 above the clear tendency to-day to recognise the pos- 
 sibility of controlling statutes by legal action; a 
 fortiori the day will come when 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 
 character. Undoubtedly since 1875 trie character of 
 this office has undergone a profound change. 8 While 
 
 8 [Cf- Jeze, La Presidence de la Republique, Revue de Droit 
 Public, 1913, p. 112; H. Leyret, Le President de la Republique 
 (1912).] 
 
ADMINISTRATIVE LAW 175 
 
 this may be noted in passing, its importance can only 
 be mentioned, because it belongs rather to politics 
 than to public law. In the political system inaugu- 
 rated by the constitutions of 1791 and 1848 the chief 
 of the state was clothed with executive power in its 
 original sense and was thus the true incarnation of 
 one constitutional element of sovereignty. He had a 
 representative character in the field of the executive 
 such as parliament exercised in the field of legisla- 
 tion. His acts were thus the direct emanation of 
 national sovereignty and, like parliamentary acts, 
 beyond the scope of administrative law. 
 
 Undoubtedly those who constructed the constitu- 
 tion of 1875 had the same conception in mind. This 
 is clearly shown by the Septennial Law, "which con- 
 fided 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 call the executive power. 
 They were to be representative of the nation and so 
 beyond the reach of law. 
 
 Since 1875 trie president has progressively lost his 
 character. Little by little he has ceased to be a rep- 
 resentative of national sovereignty. He has been 
 simply an administrative agent, a high agent, indeed, 
 of the administrative hierarchy, but still no more 
 than an agent. 9 As a result, all his acts can, as a mat- 
 ter of principle, be attacked on the ground of their 
 
 9 [The change, under M. Poincare, since 1913, is, however, 
 notable.] 
 
176 LAW IN THE MODERN STATE 
 
 ultra vires character. This change is not connected 
 with the disappearance of the imperialist notion of 
 sovereignty. That notion might have remained un- 
 broken 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 concen- 
 trating in itself all sovereignty, and it has been sug- 
 gested that since it makes the president, he can be 
 only an administrative agent. It is in this way that 
 the transformation of his office has been harmonized 
 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 
 the reach of the courts. In the first place acts con- 
 nected with the constitutional relation of the cham- 
 bers of the government, as for example the convoca- 
 tion or adjournment of the chambers, the closing of a 
 parliamentary session, the convocation of the electo- 
 ral colleges, with all of these, and for a perfectly 
 simple reason, the courts cannot concern themselves. 
 The government, in this regard, acts under the direct 
 control of parliament, and to submit its action to the 
 courts would be, indirectly, to submit the action of 
 parliament to the direction of the Council of State. 
 For the present this is impossible. 
 
 This is made very clear in what concerns the decree 
 of convocation for elections. Each chamber is given 
 
ADMINISTRATIVE LAW 177 
 
 by the constitution "the right to judge the eligibility 
 of its members and the legality of their election." 10 
 
 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 de- 
 cided in a recent decision. It rejected the plea of a 
 Councillor General against the decree of April 2, 
 1912, fixing May igth for the election of a senator for 
 Belfort. "The legislative assemblies having the 
 right to verify the powers of their members are alone 
 competent in the absence of a contrary text to pass 
 upon the legality of acts which constitute the prelim- 
 inaries of the elective process." J1 
 
 A second category of acts beyond the power of the 
 courts are diplomatic acts; that is to say, acts con- 
 cerning the relation of France with foreign powers. 
 The jurisprudence on this point is as constant as it is 
 continuous. No plea of ultra vires will, under this 
 head, be received. Very notably by its decision of 
 1904, the Council of State has decided that the pri- 
 vate citizen cannot make use of administrative law 
 against the French state in the relation to the declara- 
 tion annexing Madagascar. 12 The reason of this is 
 perfectly clear. Diplomatic acts directly interest the 
 national security. Government action, here indis- 
 pensable to the national safety, cannot be submitted 
 
 10 Law of July 16, 1875, art. 10. 
 
 11 Le Temps, August 11, 1912. 
 
 12 Recueil, 1904, p. 662; Revue de Droit Public, 1905, p. 91, 
 
178 LAW IN THE MODERN STATE 
 
 to a litigious criticism. The diplomatic service oper- 
 ates under special conditions. It is the only service 
 the management of which entails relationship with 
 foreign governments. Large as is the control exer- 
 cised by the courts over internal service, it clearly 
 cannot extend to the diplomatic services. Taken all 
 in all, it is always the theory of public service that 
 remains as the governing principle of all these solu- 
 tions. 
 
 IV 
 
 These exceptions, apart from every act of a presi- 
 dent in his official capacity, can be attacked on the 
 ground of ultra vires. This is a great step forward 
 of which the importance can hardly be overesti- 
 mated. 
 
 It is not long since the decision was made that 
 every decree regulating public administration, that 
 is to say ordinances, made on the initiative of the leg- 
 islator with the advice of the Council of State, could 
 not be touched by law. This is no longer the case. 
 In its decision of December 6, 1907, the Council of 
 State expressly recognised that the plea is accept- 
 able. Its language is perhaps unfortunate in that it 
 speaks of legislative delegation; but the phrase per- 
 haps makes the decision rather of wider bearing than 
 the contrary. On the other hand, the consequences 
 of the following passage are important. "Consider- 
 ing that conformably to the terms of Art. 9 of the 
 Act of May 4, 1872, plea may be made for the annul- 
 
ADMINISTRATIVE LAW 179 
 
 ment of administrative acts on the ground of ultra 
 vires ; considering further that those acts of the head 
 of the state which regulate administration are per- 
 formed by virtue of legislative delegation and conse- 
 quently imply the exercise to the full extent of the 
 powers conferred by the legislature on the govern- 
 ment in the particular case; nevertheless, since they 
 are derived from administrative authority, they are 
 subject to the action foreseen in Art. 9 as cited 
 above. . . 
 
 The plea of ultra vires thus obtains against every 
 governmental act to which legal consequences attach. 
 Here is involved in this the abolition of an idea 
 which had long in France the force of a dogma and 
 is still law abroad. It abolishes what are called in 
 French governmental acts and in Germany Staats- 
 notrecht or Notverordnungen** 
 
 By these phrases are meant acts which, either by 
 reason of their intrinsic nature, or the source of their 
 origin, are open to the plea of ultra vires, but are de- 
 clared beyond the law by reason of the political end 
 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 the 
 act of governing a nation, of assuring its happiness 
 and prosperity; that is its highest and noblest sense. 
 It may also mean, and that is its ordinary acceptation, 
 
 13 Recueil, 1907, p. 913, cf. Ibid, 1908, p. 1094, and Ibid, 1911, 
 p. 797. 
 
 14 Jellinek, Gesetz und Verordnung, p. 377 [and W. Harrison- 
 Moore, Act of State in English Law (1906)]. 
 
180 LAW IN THE MODERN STATE 
 
 the art of obtaining office and of remaining there 
 after arrival. Acts determined by a political end 
 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 independ- 
 ent jurisprudence of the Court of Conflicts and the 
 Council of State. It has been made possible by the 
 disappearance of the imperialist theory of sov- 
 ereignty. The two facts have been so intertwined as 
 to be reciprocally cause 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 re- 
 porter of the organic law of 1849 f tne Council of 
 State : "There are rights," he said, "the violation of 
 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 meas- 
 ures they must answer to political authority. To ren- 
 der them subject to the administrative courts would 
 be to paralyse an action exercised for the common in- 
 terest. It would be to create in the state a new power 
 which would threaten every other." It is a skillful 
 defense of raison d'TLtat, but its dangers are obvious 
 enough. It was supported by great lawyers like 
 
ADMINISTRATIVE LAW l8l 
 
 Dufour 15 and Batbie. 16 The Council of State made 
 a striking application of it in 1867 in relation to the 
 seizure by the prefect of police of the writings of the 
 Due d'Aumale a seizure approved by the Minister 
 of the Interior. The Council of State refused to hear 
 the action on the ground that the seizure was deter- 
 mined by political reasons. 17 Nine years later, under 
 a Republican government, the Court of Appeal of 
 Paris on the same grounds declared itself incompe- 
 tent to hear 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 de- 
 cree of expulsion against him. 18 This was the last 
 time that the French court invoked so arbitrary and 
 despotic a principle to declare a plea non-receivable. 
 Political motive is 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 congre- 
 gations. In his argument M. Ronjat for the govern- 
 ment had urged that "it may be suggested that acts 
 done by public authority are government acts beyond 
 the competence of the courts. . . Did such acts ex- 
 ist, this decree would be one of them. ... If you 
 
 ' 15 Droit Public, IV, 600. 
 
 16 Droit Administratif, VII, 401. [Cf. a full discussion and 
 Bibliography in M. Le Courtois, Theorie des Actes de Gouverne- 
 ment, 1899.] 
 
 "Recueil, 1867, p. 472. 
 
 18 Sirey, 1876, II, 297. 
 
182 LAW IN THE MODERN STATE 
 
 think that the act has not the character thus indi- 
 cated, you have to examine if it is an administrative 
 act to be dealt with only by the administrative courts 
 or if it comes within the scope of the ordinary tribu- 
 nals." The question was well framed. The Court 
 of Conflicts decided "that it could not be the busi- 
 ness of the judicial authority to annul the effect or 
 prevent the execution of .this administrative act . . . 
 if the petitioners think that the measure taken against 
 them is unauthorised by statute, they must go to the 
 administrative courts to obtain its annullment." 19 
 
 The Court of Conflicts rejected the plea of politi- 
 cal character and admitted the action of ultra vires. 
 
 The Council of State has not less clearly rejected 
 the same theory also. The Minister of War, on the 
 basis of 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 Coun- 
 cil 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 exer- 
 cise of powers given to the Minister to ensure the exe- 
 cution of the laws. Decisions made for that end may 
 be brought before the Council of State." The Coun- 
 19 Sirey, 1881, III, 85. 
 
ADMINISTRATIVE LAW 183 
 
 cil rejected the plea of the Prince of Orleans but de- 
 cided in favour of Prince Murat. 20 
 
 Several years later this decision was confirmed by 
 the Court of Conflicts. It decided, in three separate 
 judgments, that political motives do not invalidate 
 judicial capacity. The problem involved was the 
 seizure by the prefects, acting on governmental in- 
 structions issued in accordance with Art. 10 of the 
 Code of Criminal Instructions, of certain pamphlets 
 and portraits of the Comte de Paris. 21 Despite these 
 reiterated decisions, this dangerous theory contin- 
 ually reappears. It is the natural tendency of a gov- 
 ernment to desire the withdrawal of its acts from the 
 control of the courts. In 1911 the Court of Con- 
 flicts 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 citi- 
 zens. The Court of Conflicts decided that while 
 diplomatic acts are without the category of ordinary 
 law, acts merely inspired by diplomatic reasons but 
 not in themselves diplomatic are not so protected. 
 The decision holds "that it matters little when, as in 
 this case, the intervention of the diplomatic author- 
 ity is not contrary to the clauses of the treaty, is not 
 prohibited by local legislation, that his refusal should 
 have been inspired by political motives." The im- 
 
 20 Sirey, 1889, III, 29. 
 21 Sirey, 1890, III, 32. 
 22 Recueil, 1911, p. 400; Sirey, 1911, III, 105. 
 

 184 LAW IN THE MODERN STATE 
 
 portance of the decision lies in the opinion of the 
 court that reasons of external politics are no more 
 than reason of internal politics valid ground for es- 
 cape from judicial control. The plea of ultra vires 
 is thus the supreme method by which all administra- 
 tive action is subject to the courts. It is important to 
 remember that it is not based on a subjective indi- 
 vidual right opposed to state sovereignty. It is based 
 on the defence of an objective law, of a law of public 
 service. 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, of course, true that it is the interest of the citizen 
 which secures this intervention; that law, however, 
 is not protected by this interest but by the idea of 
 public service which, looking to the good operation 
 of the state, demands respect for law. The citizen 
 is armed to obtain this protection. It is not his law, 
 not even his interest that is involved in the doing of 
 justice. The case may not profit him by its real re- 
 sult because its real purpose is entirely objective in 
 character. Such an institution is obviously entirely 
 social in character and shows the great change at- 
 tendant on the traditional conceptions. 
 
 Modern public law has thus abolished activity of 
 state; political reasons no longer provide a bar to 
 legal action. But public law has gone further still. 
 
ADMINISTRATIVE LAW 185* 
 
 It has recognised that the presence in an adminis- 
 trative act of certain motives ipso facto strikes that 
 act with nullity. Just as there is no longer an act of 
 state so there is no longer a discretionary act, an act 
 that is to say of a sheerly administrative character. 
 
 A discretionary act is not beyond the reach of law. 
 It can be attacked for lack of capacity or incorrect- 
 ness of form. Formerly when such an act was le- 
 gally done by a competent official it could not be at- 
 tacked, 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- 
 cause the end itself was illegal. 
 
 Most administrative acts possess this character, and 
 it was possible to speak with justice of the discretion- 
 ary 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 
 no place for similar reasons. These acts corre- 
 sponded to what the Germans call acts of free inter- 
 pretation about which there is still much contro- 
 versy. 23 In France to-day the discretionary act no 
 longer exists. 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, how- 
 ever formally capable, has pursued an end other than 
 the law had in view in its conference of powers. 
 
 23 Cf. Mayer, Droit Administratif Allemand, I, 212; Laun, 
 Das freie Ermessen und seine Grenzen (1910), 
 
186 LAW IN THE MODERN STATE 
 
 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 if he does something for a purpose he has no right 
 to pursue. The phrase "abuse of power" is a felici- 
 tous one because it clearly shows the way in which 
 the violation of the law is made clear. 
 
 The working out of this idea in practise is due to 
 the fine independence of the Council of State. It is 
 due also to the high sense of justice by which mem- 
 bers of the department of justice from M. Aucoc 
 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 
 involves a legal result, it has not been necessary, in 
 order to settle the validity of a legal act, to find 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. 24 Sim- 
 ilarly in public law, while one attached the effect of 
 an administrative act only to the right of sovereignty, 
 it had only to be done by a competent agent to be 
 valid. With the disappearance of sovereignty the 
 
 24 Cf. Duguit, Transformations du Droit Prive (1912), p. 82f, 
 
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 ad- 
 ministration, the private citizen may always enquire 
 into its motives. The Council of State may attempt 
 their measurement, and its dissatisfaction with the 
 result may lead to the annulment of the act. 
 Whether the official is the president of the Republic 
 or the humblest civil servant makes no difference. 
 The character of the act is unimportant. The ques- 
 tion of motive brings every act of every official under 
 the control of the courts. 
 
 It is clearly a striking change, and it is yet another 
 proof of the disappearance of sovereignty as a basis 
 of law. This evolution of course was not accom- 
 plished in a day. Its beginning goes back to the 
 beginning of the Second Empire, and the earliest 
 cases are in themselves but of secondary interest. 
 They dealt with prefectorial decisions, regulating 
 traffic in front of stations. It was held that in taking 
 his decision the prefect had in view not the security 
 and good order of the traffic but the interest of the 
 customer he wished to benefit. The Council of State 
 
1 88 LAW IN THE MODERN STATE 
 
 annulled these decisions on the ground of abuse of 
 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. Certain prefects, acting on the instruction 
 of the Minister of Finance, closed these factories in 
 virtue of the power given them in 1810, which gave 
 the right to control dangerous and unhealthy ware- 
 houses. These decisions were annulled on the same 
 ground. From such meagre beginnings the concept 
 had undergone a wide expansion in French public 
 law. 
 
 From the mass of cases in which the Council of 
 State has clearly applied this notion I can select only 
 some of the most characteristic. It has annulled a 
 governmental decree which dissolved a municipal 
 council to redress electoral irregularities. It was 
 held that the government can dissolve a municipal 
 council only to secure a good administration of the 
 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. 25 
 
 The Council of State annulled a decision of Gen- 
 eral Andre, 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 Minis- 
 
 25 Recueil, 1902, p. 55; Sirey, 1903, III, p. 113. 
 
ADMINISTRATIVE LAW 189 
 
 ter. 26 It was held that the motives involved were 
 without relation either to the contract involved or to 
 the merchant's professional capacity. 
 
 For some years the prefects, using the power of 
 control given to them by the Act of 1884, have con- 
 trolled those municipal councils whose political and 
 religious tendencies displease them. Such consider- 
 ations are of course entirely foreign to the adminis- 
 tration of the commune. Every time the problem 
 has come before the Council of State, that body has 
 rightly annulled this procedure. The Prefect of 
 Doubs desired to force a commune to lease its pres- 
 bytery. . He therefore declared that he would not 
 approve certain proceedings of the Council until the 
 presbytery had been leased conformably to the law of 
 1907. The decision was ruthlessly annulled. It was 
 pointed out that the prefect had used his powers for 
 ends quite alien from those for which they were 
 given. 27 
 
 It was for long admitted that every minister could 
 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 it could not review such 
 a decision as being outside its jurisprudence. The 
 Court has now held that the plea may be received 
 and that the idea of discretion no longer holds. The 
 
 26 Recueil, 1905, p. 757. 
 
 27 Recueil, 1911, p. 289; Sirey, 1912, III, 41. 
 
190 LAW IN THE MODERN STATE 
 
 attitude of the Court has been well explained in the 
 note of the representative of the department of justice 
 M. Heilbronner. "If a candidate has all the qualifi- 
 cations demanded by law, can the Minister," he asks, 
 "exclude him from his candidacy on the ground that 
 he belongs to a special class of citizens?" The ques- 
 tion arose over a candidate who, being a priest, had 
 been excluded from the examination for a Fellow- 
 ship in the University in Philosophy. Though the 
 Council of State upheld the decision, it was not be- 
 cause it held that it could not examine the mo- 
 tives of the ministerial action. It was because, hav- 
 ing examined them, it thought they- were legal and 
 tended to serve only the adequate functioning of the 
 university. It pointed out that this fellowship im- 
 plies not only a university status but also fitness to 
 teach in the secondary schools of the state. v "In re- 
 fusing," said the Court, "to allow the plaintiff to take 
 the examination, the Minister of Public Instruction 
 has only used powers conferred upon him by law; and 
 the decision is therefore in no sense ultra vires/' 
 
 The governmental . explanation of the decision 
 gives us its connotation. "The theory of discretion 
 is to-day abandoned. Discretion to-day means that 
 the minister can act as he will, provided he acts le- 
 gally and for the purpose the law is to serve." The 
 exclusion of a priest from the examination fulfilled 
 the purpose of a law which restricted secondary and 
 primary instruction to laymen. The note clearly 
 28 Revue de Droit Public, 1912, p. 453. 
 
ADMINISTRATIVE LAW 
 
 points out that the decision would be different if 
 higher education were concerned, since these posi- 
 tions are based 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 
 of meeting his political committee at a certain cab- 
 aret. He dismissed a policeman who registered a 
 complaint against its landlord. The court annulled 
 the mayor's decision. 29 The court has similarly an- 
 nulled the mayoral instructions derived from anti- 
 religious zeal. In these decisions it is possible to dis- 
 cern a new extension of this plea. Heretofore the 
 plaintiff, to be successful, had to furnish direct and 
 positive proof that the official had been actuated by 
 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 po- 
 lice upon which mayoral action must be based, did 
 not exist in fact. That does not change in any way 
 the nature of the plea of abuse of power, but it makes 
 it w r ider and this extension enlarges the control of the 
 courts over business administration. 30 
 
 VI 
 
 This evolution, however, is not yet complete. Vio- 
 lation may involve condemnation of the administra- 
 
 29 Recueil, 1900, p. 617. 
 
 30 Recueil, 1909, p. 180; Ibid, 1909, p. 307 ; Ibid, 1910, p. 49; 
 Ibid, 1910, p. 192. 
 
192 LAW IN THE MODERN STATE 
 
 tive acts by the courts ; but to complete the control of 
 the courts the private citizen must have the means of 
 compelling the government to execute the decision 
 of the tribunal. He must be able to prevent the repe- 
 tition of the act. He must be able to compel the ad- 
 ministration to conform to the verdict of the court, 
 to reinvest, for example, an official who has been 
 illegally dismissed when the Council of State has so 
 decided. Theoretically, there is no doubt that he has 
 the power theoretically, the government is subject 
 to the control of the courts. 
 
 It must however be admitted that this means of 
 constraint has not yet been developed. "The ab- 
 sence of this sanction," as M. Hauriou has very 
 rightly said, 31 "has not had much inconvenience be- 
 cause government has made it a point of administra- 
 tive honor spontaneously to obey." He points out 
 how "under the combined action of decentralisation 
 and the electoral regime this administrative honor 
 no longer exists. The government departments de- 
 ceive 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 
 State. It is not, of course, the minister himself . . . 
 
 31 Sirey, 1911, III 121. 
 
ADMINISTRATIVE LAW l$3 
 
 it is his department. The department is in revolt 
 against the embarrassment caused by the Council of 
 State." 
 
 This picture 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, how- 
 ever, sometimes resistance. The temper of politics 
 makes itself felt with odious results. The extension 
 of the courts' control provokes administrative resist- 
 ance. It is perhaps natural enough; for every new 
 social force has to make its way against the conserva- 
 tism 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 priv- 
 ileged. 
 
 The Council of State has so far realised this that 
 its decisions often show the effort to defeat a contin- 
 gent administrative resistance. It does not of course 
 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 
 judge and not an administrator. When, for exam- 
 ple, the prefect violates the law of weekly rest, it an- 
 nuls the act without according the permission that the 
 law demands. It takes account of a possible refusal 
 to obey the law by the terms of its decision. "Send 
 X before the prefect of the department and give him 
 
194 LAW IN THE MODERN STATE 
 
 the authorisation to which he has the right in law." 
 
 This formula of address to the administration is 
 now very frequent in the decisions of the Council, 
 particularly in annulling prefectorial determination 
 on the weekly closing law. The Council has not yet 
 dared expressly to annul the decision by which a pre- 
 fect 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 injunc- 
 tion to the latter to secure this end directly from the 
 department. 33 This is not real constraint, and it must 
 be admitted that for the moment a direct refusal of 
 authority to take account of the decision cannot be 
 countered directly or indirectly by the courts. A 
 case, in itself unimportant, is here of interest because 
 it shows in this connection how the mayor of the little 
 commune may hold in check the highest administra- 
 tive council of the country. By Art. 102 of the Act 
 of April 5, 1884, a mayor cannot dismiss a rural po- 
 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 
 dismissal, and a decision of 1909 annulled the 
 mayoral decrees. The mayor took no account of the 
 annulment and continued his suspension. In 1910 
 the Council of State annulled seven new decrees by 
 the mayor. This could obviously continue without 
 
 32 Recueil, 1906, p. 880; Sirey, 1907, III, 17. 
 33 Recueil, 1908, p. 689; Sirey, 1909, III, 129, 
 
ADMINISTRATIVE LAW 1 9$ 
 
 limit; and if the minister did not dismiss the mayor 
 the courts would have no means of forcing their con- 
 trol. 34 
 
 Here is the real gap in our public law. The only 
 way in which it can be filled is by enforcing the per- 
 sonal responsibility of the civil servant. It is the ab- 
 sence of that responsibility that deprives the decision 
 of the court of its effect. 35 It will be seen below how 
 theory and practise are making a subtle but precise 
 distinction between acts of function and private acts 
 in which the latter will involve the personal respon- 
 sibility of the official. An act is personal when the 
 motive of the official's act or his refusal to act is un- 
 connected with the operation of his post. Clearly a 
 civil servant who knowingly refuses to obey the de- 
 cision of a court is acting outside the boundaries of 
 his service. Every judgment is presumed to con- 
 form to the law. Every law is founded on the inter- 
 ests 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. 
 
 There is no doubt that the responsibility of a recal- 
 citrant official will be secured in the future. The 
 Cotignac policeman could certainly have won a per- 
 sonal action against the mayor; but the procedure, as 
 
 "Recueil, 1909, p. 727, and 1910, p. 606; Sirey, 1911, III, 
 121. 
 
 35 [It is exactly here that Professor Dicey, of course, finds the 
 superiority of the English rule of law.] 
 
196 LAW IN THE MODERN STATE 
 
 I shall show below, is long and complicated and 
 costly. The ordinary courts try these cases and ap- 
 peal can be and always is taken to the highest tribu- 
 nals. 
 
 That makes the petitioner hesitate. He is mis- 
 taken because he is 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, in- 
 volved no other expense than that of registration. 
 The Council very naturally penalises any civil serv- 
 ant who neglected its decree of annulment or penal- 
 isation. This path, it is possible, will be opened up 
 in the future. 38 
 
 36 Cf. Berthelemy, L'Obligation de faire en Droit Public, 1912, 
 p. 51 If. 
 
CHAPTER VII 
 RESPONSIBILITY 
 
 \ls THE state responsible for acts done in its name? 
 Merely to ask the question is to reveal a profound 
 change in public law. The men of the Revolution 
 would have been astonished at the demand. The 
 Declaration of Rights, Constitutions, the statutes of 
 the Revolutionary period in none of these is there 
 a single text which makes any allusion to a general 
 responsibility on the part of the state. There is af- 
 firmation, of course, that the individual has the right 
 to certain guarantees against arbitrary power. They 
 are found, however, in the separation of the powers, 
 in the divisions of functions, in the responsibility of 
 officials. No one thought that they could be found, 
 and are essentially found, in the responsibility of the 
 state. To-day a highly sanctioned and widely cast 
 state responsibility is regarded as the best safeguard 
 of individual freedom. We have to trace the stages 
 of this evolution. 
 
 The texts which consecrate the responsibility of 
 officials are very numerous. The principle was in 
 
 197 
 
198 LAW IN THE MODERN STATE 
 
 the Declaration of 1789: "Society has the right to 
 demand responsibility for administration from every 
 public official." In the preamble to the third title 
 of the Constitution of 1791, it is stated that "the ex- 
 ecutive power is delegated to the king to be exer- 
 cised under his authority by his ministers and other 
 responsible agents." The same principle is quite 
 clearly formulated in 1793 an( i tne Y ear HI; * and it 
 was considered so fundamental and supreme that 
 when, in the year VIII, it was desired to constitute 
 a central government so strong as not to be subject to 
 electoral and democratic influence, the responsibility 
 of public officials still remained untouched. The 
 principle was formulated with the same rigidity; but 
 the Council of State had to give governmental au- 
 thorisation to the prosecution of a civil servant. This 
 is the famous article 75 of the Constitution of the year 
 VIII. "Government officials other than ministers 
 of state can be prosecuted for acts relative to their 
 functions only in virtue of a decree of the Council of 
 State." When in 1830 the Charter of 1814 was re- 
 vised in a sense deemed liberal, a statute was an- 
 nounced "on the responsibility of ministers and other 
 agents of the executive power." The statute, how- 
 ever, was promulgated without being passed, al- 
 though long discussions filled the entire session of 
 
 1 Declaration of 1793, arts. 24 and 31; Constit. of 1793, -arts. 
 55, 71-3, 83; Declaration of the Year, III, art. 22; Constit. of 
 the Year, III, arts. 200, 201, 203. 
 
RESPONSIBILITY 199 
 
 1835. In 1848 the principle was formulated in a 
 still more wide and general fashion. "The Presi- 
 dent of the Republic and ministers and officials exer- 
 cising a part of sovereign power are responsible in so 
 far as each is concerned for all acts of government 
 and of administration." 
 
 No text since 1789 makes the slightest allusion to 
 a general responsibility of the state. That does not 
 mean to say that responsibility was outside men's 
 thoughts; for many texts affirm the responsibility of 
 all public officials. No one thought of making the 
 state responsible, because, for the legislator, it was an 
 evident and tangible dogma that the state was not 
 and could not be responsible. 
 
 That was logical enough. Close analysis suggests 
 that sovereignty and responsibility are mutually ex- 
 clusive notions. Sovereignty, of course, can be lim- 
 ited. In the traditional theory of public law it limits 
 and reciprocally is limited by the right of the indi- 
 vidual. These reciprocal limitations are regulated, 
 and can only be regulated, by statute which, express- 
 ing the general will, is derived from sovereignty it- 
 self and forms the national law. At bottom, there- 
 fore, the sovereign state creates law and the idea of 
 responsibility is thus excluded. For, in the general 
 acceptance, irresponsibility implies a violation of 
 law. That which creates law by its sovereign will 
 clearly cannot violate it. Just as in an absolute mon- 
 archy the king can do no wrong, and is therefore ir- 
 
200 LAW IN THE MODERN STATE 
 
 responsible, so the democratic state, which is no more 
 than the nation sovereignly organised, can do no 
 wrong and escapes responsibility. 
 / The sovereign state cannot be responsible because 
 of statutes, because statutes are the expression of sov- 
 ereignty. Nor can it be responsible for executive, 
 judicial, or administrative acts. If they conform to 
 statute there is no question of responsibility at all. 
 If they are contrary to it the question does not relate 
 to the state which has willed that the statute should 
 be executed. The violation is that of the official who 
 substitutes his own will for the will of the sovereign 
 state. It is the official, therefore, who is alone re- 
 sponsible.^ 
 
 It is very logical, so logical that some radical 
 writers of authority have not been able to escape from 
 the obsession that sovereignty imposes. Forced to 
 recognise that the state is sometimes responsible, they 
 declare that it cannot be responsible when it acts as 
 a sovereign power unless its statute has so ordered. 
 This is the attitude of M. Berthelemy. M. Teissier, 
 in an able work, 2 is less definite ; but his mind is still 
 dominated by the idea that where the state shows 
 itself in its sovereign capacity the question of respon- 
 sibility cannot be raised. "Statutes," he writes, "are 
 the highest example of sovereign acts; and without 
 special provision the damage they may cause to pri- 
 vate citizens can give rise to no action against the 
 
 2 La Responsabilite de la Puissance Publique, 1908. 
 
RESPONSIBILITY 2OI 
 
 state before any court, administrative or other, on the 
 ground of responsibility." 
 
 Clearly, sovereignty and irresponsibility are two 
 interdependent ideas. That is clearly affirmed where 
 state responsibility is admitted, save where it acts in 
 its sovereign capacity. That is already to admit that 
 the principle of irresponsibility has its limits. 
 Where is the line to be drawn? How can we tell 
 when we are dealing with a sovereign act and when 
 not? If the state is by definition a sovereign person, 
 it must always be a sovereign person, and if sov- 
 ereignty implies irresponsibility, it must be irrespon- 
 sible also. It can hardly have garments suited to 
 every sort of occasion. 
 
 It thus follows that if it is admitted that the state 
 may on occasion be responsible, it may on occasion 
 be non-sovereign; but if on occasion it may be non- 
 sovereign, it is in fact never sovereign. I shall show 
 later that there is to-day no aspect of state-activity 
 which does not raise the question of responsibility and 
 answer it in the affirmative. And the need for that 
 affirmation grows each day greater. 
 
 It is useful to remember that even in the highly 
 articulated imperialist system of law there was one 
 lacuna. The Declaration of the Rights of Man had 
 proclaimed private property inviolate, it had decided 
 that "no one can be deprived of it save when a legally 
 declared public necessity demands it and then only 
 on condition of fair and pre-arranged compensa- 
 
202 LAW IN THE MODERN STATE 
 
 tion." 3 Here was a clear attack on the principle of 
 sovereign irresponsibility of the state. It is easily 
 explained. The authors of the Declaration of Rights 
 loved the state but were still more lovers of the soil 
 they owned. They admitted that sovereignty was a 
 dogma; but the rights of property were a dogma not 
 less fundamental. The right of property is an indi- 
 vidual sovereignty; when it conflicts with that of the 
 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 As- 
 sembly was in some degree a landed proprietor is in 
 part at least the explanation of this attitude. When 
 private property is taken, the financial responsibility 
 of the state is recognised. A 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. 
 
 It was approved by administrative jurisprudence, 
 which gave liberal compensation for damage to pri- 
 vate 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 
 state-responsibility but on the inviolability of private 
 property. It nevertheless opened an avenue to that 
 modern theory which tends to recognise the respon- 
 sibility of the state wherever its intervention, however 
 legal or faultless, imposes upon an individual or 
 
 3 Art. 17. 
 
RESPONSIBILITY 203 
 
 group a burden heavier than it imposes upon the 
 community at large. 
 
 II 
 
 Traditional theory makes the notion of responsi- 
 bility accompanied always by the idea of fault. A 
 rule, that is to say, is violated ; if it is a moral rule, it 
 implies a moral responsibility; if a rule of law, a le- 
 gal responsibility. The ideas of responsibility and 
 of fault demand, as is clear, the existence of a con- 
 sciously willing person. Conscious violation of a 
 rule of law by a free will involves the responsibility 
 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 
 the penal and civil codes of France. Penal infrac- 
 tion is the conscious violation of the penal law by a 
 free will, and penal responsibility is incurred by the 
 person to whom this violation is to be imputed. Ar- 
 ticle 1382 of the Code Napoleon formulates the prin- 
 ciple of civil responsibility. Moreover, every per- 
 son is declared responsible not only for the damage 
 caused by his own acts but also for that of persons for 
 whom 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 
 or bad surveillance. 
 
 To pose the problem of state responsibility in these 
 
204 LAW IN THE MODERN STATE 
 
 terms is to picture a state endowed with a free and 
 conscious will which can commit a fault by violating 
 a legal rule and is responsible when that violation can 
 be brought home to it. An important school of jur- 
 ists accepted this conception. Upon it has been 
 erected an ingeniously subtle doctrine of which the 
 value is only present by reason of its skilful logic. It 
 is urged that the state is a person and the governors 
 are its organs; as such they have no personality dis- 
 tinct from that of the state any more than the organs 
 of an individual have a personality distinct from it. 
 The state wills and acts 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 im- 
 puted to the state. The state is therefore directly and 
 personally responsible for it. 
 
 This theory was created by Gierke for the cor- 
 porate 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. 4 Nevertheless, 
 it is no more than an ingenious fiction. It is neces- 
 sary to reconcile the responsibility of the state with a 
 legal system, where there can be responsibility only 
 
 4 Gierke, Genossenschaftstheorie (1887); Jellinek, Allgemeine 
 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 conscious and willing personality. 
 
 Now the facts to-day, as numerous decisions make 
 clear, in no wise demand that the responsibility of the 
 state should be based upon the idea of fault. Tradi- 
 tion, doubtless^ 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 oper- 
 ation of its functions. We ought perhaps to speak of 
 another term rather than responsibility, but since that 3 
 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 dis- < 
 appeared or ought soon to disappear from modern ^ 
 law. In the relation of individuals to individuals 
 there can be no other idea. But the notion of fault 
 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 *J 
 as a rule, if not always, it is upon this fault that li- V 
 ability is founded. 5 But in corporate activity this * 
 is not the case. The act is doubtless put into motionl? } 
 by individual wills, but the end is collective. If af 
 fault is committed by an agent of thiscoTfectivity, it 
 is not imputable to that agent since it is for a collec- 
 tive end that it has been committed. Nor is it im- 
 
 5 [C/. Mr. Justice Holmes, two papers on Agency, in Vols. IV 
 and V of the Harvard Law Review,] 
 
206 LAW IN THE MODERN STATE 
 
 putable to the collectivity since the latter outside the 
 imagination of lawyers has no personal existence. 
 The ideas of fault and imputability are thus elim- 
 inated. 6 
 
 There thus emerges a new conception to which is 
 attached the whole modern law of state responsibil- 
 ity. To start a collective activity, that is to say an 
 activity which has in view a collective end, affects the 
 funds of the collecting when it occasions prejudice to 
 a group or individual. "Social life and thus legal 
 life," as I have elsewhere written, 7 "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. The 
 task it performs doubtless benefits the whole of so- 
 ciety, but more particularly it is the members of a 
 group who are benefited. If they so benefit, it is only 
 fair that they should bear the risk which attaches to 
 the contact of their acts with other individuals or 
 groups." 
 
 State activity emanates from individual wills, but 
 it is essentially collective in its end ; which is the or- 
 ganisation and management of public services. It 
 follows that if the organisation or management of 
 such a service should particularly prejudice a group 
 or an individual, the funds of that service should re- 
 
 6 [For another interpretation, cf. Laski, The Basis of Vicarious 
 Liability, in the Yale Law Journal for November, 1916.] 
 
 7 Transformations du Droit Prive (1912), p. 140. 
 
RESPONSIBILITY 207 
 
 pair the damage so long as the relation of cause and 
 effect between act and damage is traceable. If the 
 service is centralised it falls upon the general funds 
 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 falsi- 
 fied by the persistence of the idea of fault. It im- 
 plies eo nomine the elimination of the idea of sov- 
 ereignty. 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 
 
 Ancient tradition, and a habit of terminology that 
 has become inveterate, make many thinkers of emi- 
 nence still subject to their faith in the sovereignty of 
 Parliament. I have already pointed out 8 that the 
 persistence of this idea has prevented the plea of 
 ultra vires being valid against acts of parliament. 
 Its members, indeed, love to pose as interpreters of 
 the national sovereign will. These are no more than 
 words. But everywhere, and in France in particu- 
 lar, words are powerful things ; and it is these empty 
 
 8 Supra, chap, iii, iv ; chap, vi, iii. 
 
208 LAW IN THE MODERN STATE 
 
 formulae which make the courts so greatly hesitate 
 to recognise the responsibility of the state for acts of 
 parliament. Yet to-day the question is clearly posed. 
 It is discussed everywhere: in the chambers, in the 
 courts, in the market place. The significance of 
 that discussion is obvious. 
 
 Let us suppose a private act of parliament voted 
 and promulgated in the form of statute. It is a stat- 
 ute of a formal kind. But if, as has been so long and 
 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 par- 
 liament may in certain cases involve the responsibil- 
 ity of the state. 
 
 I have already mentioned the decisions of the 
 Council of State which ordered the state to pay com- 
 pensation to certain ecclesiastical institutions in Savoy. 
 They had been injured by the refusal, in accordance 
 with act of parliament of the grant promised to them 
 in 1860 by the French government in return for the 
 surrender of certain rent charges. 9 There is, of 
 course, no question here of a formal statute ; but 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 less than in a formal 
 law. I have mentioned also the protest of M. Mil- 
 
 9 Recueil, 1896, p. 660; Ibid, 1904, p. 533. 
 
RESPONSIBILITY 209 
 
 lerand, then Minister of Public Works, in the Cham- 
 ber. He was replying to a speech of M. Jaures, who 
 urged that if the state was embarrassed in its negotia- 
 tions 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 refused to follow the policy advocated by 
 M. Jaures. 
 
 In both these cases we have of course contract; but 
 when sovereignty is concerned and when parliament 
 is the living incarnation of sovereignty, contract is 
 unimportant. No contract can make the state re- 
 sponsible. If we say with M. Laferriere "that it is 
 a matter of principle that the damage caused to pri- 
 vate citizens by legislative measures gives them no 
 right to compensation," parliamentary action would 
 then imply the irresponsibility of the state. 
 
 Let us now suppose that parliament passes a mate- 
 rial and formal statute; it passes a general regulation 
 which is promulgated by the parliament. Does such 
 an act involve responsibility? Merely to ask the 
 question shows the profound change in our concep- 
 tions. 
 
 But the question is asked, and parliament must an- 
 swer it. ' When a statute is passed of which the ap- 
 plication will prejudice the interests of a certain class 
 of citizens, ought the legislator to make compensa- 
 tion a principle of the statute? The question has 
 been eagerly discussed in France and abroad. It was 
 discussed in France in relation to the statute of 1909 
 
210 LAW IN THE MODERN STATE 
 
 forbidding the use of white lead; in Switzerland in 
 relation to the Federal law of 1910 forbidding the 
 use of a.bsinthe; in Uruguay and Italy in 1911 in re- 
 lation to laws making insurance a public monopoly. 
 The question is not one^of legislative morality but of 
 right; it is in the name of a principle of right supe- 
 rior to their powers that the parliaments ask if they 
 ought not to compensate by statute those who are spe- 
 cially harmed by their action. Thus the faith of 
 legislatures in their 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 ele- 
 ments of the solution it will offer. If the new statute 
 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. 
 Legislators only formulate a legal principle in the 
 interest of a public service; the national exchequer 
 ought not therefore to bear the burden of a baseless 
 responsibility. 
 
 An 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 logical that the state should re- 
 pair the special prejudice occasioned. Such an ar- 
 gument should not prevail. Assuredly the notion of 
 sovereignty, as this book attempts to show, no longer 
 lies at the basis of public law. But a material stat- 
 ute is none the less the formulation of a rule of right 
 
RESPONSIBILITY 211 
 
 "Law," as I wrote some years ago, 10 "is not a mass of 
 absolute and unchanging principles, but on the con- 
 trary a collection of rules which vary with time. It 
 follows that a situation may at one time be legal even 
 over a long space of time, but not always legal. 
 When a new statute abolishes it those who have prof- 
 ited by the earlier legislation cannot complain of the 
 change because the new law only registers the evolu- 
 tion of the notion of right." 
 
 After long discussion, and several contradictory 
 notes in the Chamber and in the Senate, the Act of 
 1909, forbidding the use of white lead in the manu- 
 facture of paint, refused an indemnity to the makers 
 of that product. 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 asj 
 essentially harmful. The employment then had to 
 be forbidden by law. The minister did not invoke 
 the supposed sovereignty of parliament. He sens- 
 ibly observed that similar laws in Germany and Aus- 
 tria had given no compensation. A compromise was 
 finally arrived at between the Chamber and the Sen-j 
 ate by which the indemnity was granted but the pro- 
 hibition was not to become effective until after a pe- t 
 riod of five years. 
 
 In the next year a statute was passed which prohib- 
 ited the sale of baby comforters. Their use had been, 
 
 l Traite (1911), I, 164. 
 
212 LAW IN THE MODERN STATE 
 
 denounced by doctors for several years as one of the 
 principal causes of infant mortality. The question 
 of compensation was not even raised. "We must 
 make," said M. Durand, the Reporter to the Cham- 
 ber, "a clear distinction between expropriation and 
 the substitution of a state industry for one operated 
 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 pro- 
 hibit the manufacture and sale of absinthe which is 
 incontestably harmful and an active agent in pro- 
 moting alcoholism. If, as one must hope, these bills 
 succeed, there is no reason to reserve compensation 
 for the benefit of the manufacturers. They are pub- 
 lic poisoners whom the law ought, as soon as possible, 
 to prohibit from so culpable an enterprise. 
 
 It ought, however, to be pointed out that a similar 
 Swiss act of 1910 has reserved compensation in the 
 following terms: "For the sake of fairness, partial 
 compensation is assured to manufacturers and em- 
 ployers whose interests are directly and sensibly 
 harmed by the prohibition of absinthe." This for- 
 mula shows that the Swiss legislature was not apply- 
 ing a general principle, but, out of fairness, granting 
 exceptional conditions. 
 
 A statute, however, ought always to reserve com- 
 pensation to persons particularly prejudiced when it 
 prohibits, not because damage is done, but because 
 
RESPONSIBILITY 213 
 
 the public organisation of the industry is 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 
 substituting public for private enterprise, but so long 
 as the private enterprise was not harmful it ought not 
 to suffer by the process. 
 
 French legislation has several times applied this 
 idea. Compensation was granted to the manufac- 
 turers of matches when in 1872 that trade was made a 
 public monopoly. The statute of 1904 on employ- 
 ment bureaux states in its first article that the public 
 bureaux shall receive just compensation before sup- 
 pression. The Italian Act of 1912 which created a 
 National Institute of Life Insurance refused, how- 
 ever, any compensation to persons or companies en- 
 gaged in this enterprise. They were not however 
 immediately suppressed but allowed under certain 
 conditions to continue their operations for ten years. 11 
 
 IV 
 
 The principle of compensation is thus"atsent from 
 the statutes. Can the courts grant compensation to 
 persons particularly prejudiced by the application of 
 a new law? Clearly the question does not arise 
 where the statute prohibits acts or adjusts situations 
 
 11 Jeze, Revue de Droit Public, 1912, p. 433. The text of the 
 Italian Law is in the Bulletin de Statistique et de legislation com- 
 paree, 1912, p. 538. [For the actual history of the Italian law, 
 tf. Ferrero, Europe's Fateful 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 re- 
 fuse all compensation in such cases. On the ground 
 that a statute, because it originates from parliament, 
 is an act of sovereignty, they held that the responsi- 
 bility of the state was not involved. The leading 
 case on this subject was the Du Chatellier decision of 
 the Council of State in 1838, which refused all com- 
 pensation to manufacturers involved in the Act of 
 1835. This act, for fixed purposes, prohibited the 
 manufacture of certain tobacco, and the court held 
 "that the state cannot be held responsible for the con- 
 sequences of statutes which prohibit certain indus- 
 tries in the general interest." The court gave a sim- 
 ilar decision in 1852 in the Ferrier case and in 1879 
 in the Goupy case. All compensation was refused 
 even to those whose relation to the state was contrac- 
 tual and whose obligation became heavier as the re- 
 sult of new statutes. In the Barbe case of 1883 it 
 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 
 discussion will be necessary to make it the case. It is 
 true that the Council of State, since the case cited, 
 
RESPONSIBILITY 215 
 
 has not yet had to deal with one in which a private 
 citizen, unbound to the state by any previous and spe- 
 cial legal relation, asks compensation for the preju- 
 dice caused by a new statute which, for public pur- 
 poses, prohibits some business in no sense contrary to 
 the public interest. But several times during the last 
 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 
 due to statute. 
 
 It is well settled that the state cannot by a private 
 act change a contractual situation. But where a ma- 
 terial statute has been passed, a general regulation of 
 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. 
 
 As 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 
 who invoked the injury they had suffered by the stat- 
 utes of 1885 on conditional liberation of 1891 on in- 
 crease or diminution of penalties and of 1892 on 
 preventive imprisonment. 12 This hesitation is still 
 more clear in the Noire and Baysac case, where a 
 state contractor claimed damages because the Work 
 
 l2 Recueil, 1903, p. 306, 
 
2l6 LAW IN THE MODERN STATE 
 
 Accident Laws of 1898 increased the burdens of his 
 obligations. 13 M. Tardieu, then government coun- 
 sel, wrote a long and learned brief tending, not with- 
 out 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. 
 
 The question of the responsibility of the state as 
 legislator is also raised in relation to laws which 
 change the operation of a public service managed by 
 private hands. I have shown above that the govern- 
 ment is in law obliged to assure the adequate opera- 
 tion 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 man- 
 aged. This makes plain how the question of state 
 responsibility arises when a statute, so passed, makes 
 the position of the private operator of a public serv- 
 ice more onerous. It is to-day the clear tendency to 
 recognise that the state must pay compensation. If 
 there is lack of agreement as to the theory by which 
 that duty may be explained, it matters little. The es- 
 sential and characteristic fact in legal evolution is the 
 recognition of this principle of responsibility. It 
 has been insisted upon by the Minister of Public 
 Works in his explanation of the Act of 1908 which 
 correlated our railway system with our canals. The 
 
 "Recueil, 1908, p. 20, 
 
RESPONSIBILITY 217 
 
 result of it was to modify on an important point the 
 principles on which privately managed railroads are 
 to be regulated. "Each time," wrote the Minister, 
 "that the state recognises that the interest of any great 
 public service in private hands involves the increase 
 of the burden implied in the original concession, 
 those private interests have a right to a reparation of 
 the prejudice." The third article of the act explains 
 "that the Council of State shall decide on claims of 
 compensation by the railroads arising out of the pres- 
 ent statute ;" and even without the text the companies 
 would certainly have led a campaign for compensa- 
 tion. M. Berthet, moreover, who reported the act 
 to the Chamber, said "that this article decides only a 
 question of capacity. It neither establishes nor con- 
 firms on behalf of the companies any right to com- 
 pensation not derived from the ordinary law. It 
 simply gives the Council of State sovereign jurisdic- 
 tion over claims to compensation made by the com- 
 panies." 
 
 The same question is raised in a particularly inter- 
 esting way by the laws of 1909 and 1910 on pensions 
 of which the latter was retroactive in character. 
 Here, clearly, was a legislative regulation which 
 modified the condition of service to the detriment of 
 the private companies holding government conces- 
 sions. Nobody doubted the legitimacy of their ac- 
 tion ; but nobody doubted also that if the companies 
 could establish a causal relation between the new stat- 
 ute and the increase of their obligations, they could 
 
2l8 LAW IN THE MODERN STATE 
 
 force the state to pay compensation even if that prin- 
 ciple was not expressly provided for in the state. 
 
 It is a complete legal system that is in process of 
 formation. It is the business of government to as- 
 sure the organisation and operation of public utili- 
 ties ; and whatever the method by which they are or- 
 ganised, it can take all necessary steps to that end. 
 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 leg- 
 islative aspect is simply a specific element in a gen- 
 eral system. 14 
 
 V 
 
 It is in the realm of acts of a judicial kind per- 
 formed 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 
 cases that the responsibility of the state for such acts 
 has been admitted. What is the reason of this? 
 
 One might believe that the main reason is that ju- 
 dicial officers express better and more directly than 
 many others the sovereign will of the state. Of 
 
 14 There is now an abundant literature upon the question of 
 state-responsibility. Cf. especially Teissier, La Responsabilite de 
 la Puissance Publique (1908); Tirard, La Responsabilite de la 
 Puissance Publique (1908) ; de Roux, La Responsabilite de 1'Etat 
 (1909) ; Despax, La Responsabilite de 1'Etat (1909) ; Marcq, La 
 Responsabilite de la Puissance Publique (1911) [and for England 
 cf. E. Barker in Political Quarterly, Vol. I, No. 2, and Laski, in 
 Harv. L. Rev., Vol. XXXII, No. 5]. 
 
RESPONSIBILITY 2IQ 
 
 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 express- 
 ing the sovereign will of the state. That responsibil- 
 ity 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 
 power, it is only by customary usage. There is 
 neither written law nor political doctrine which ad- 
 mits the existence of a judicial power in the sense of 
 1791. Like administrative officials, judicial officers 
 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 classes are similar. 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 dis- 
 parity is not, however, inexplicable. 
 
 In the French system, the judicial authority has 
 alone capacity to pass upon criminal trials and every 
 civil case which arises from the relations of private 
 citizens. But its power does not end there. It may 
 also decide every case where administrative law is not 
 involved which directly concerns liberty or property. 
 Arrests, confiscation, requisitions, bail, injunction 
 all these are within its function. We have thus to 
 distinguish between its jurisdictional and non-juris- 
 dictional power; and it is thus that is explained why 
 
220 LAW IN THE MODERN STATE 
 
 the recognition of state responsibility for judicial ac- 
 tion has hardly begun. 15 
 
 The obstacle is in the nature of the act involved. 
 Positive legislation has sought to find a safeguard in 
 the guarantee of independence and wisdom with 
 which they have invested the personnel of the judi- 
 ciary. However lawyers may differ as to the in- 
 ternal nature of a judicial act it clearly states with the 
 force of legal and social truth, the existence, the non- 
 existence or the extent of a legal situation. A judi- 
 cial act has the gravest social importance because, 
 perhaps more than any other act, by assuring legal 
 order, it assures social order. Where conflict arises, 
 its business is to say in what consists the measures to 
 secure impartiality and ability in the process; but 
 when every appeal has been exhausted the decision of 
 the court is definitely 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 per- 
 manent source of disorder. 
 
 It has sometimes been urged that the state ought to 
 be responsible where a prisoner, condemned in an in- 
 ferior court, is acquitted on appeal, or where the 
 plaintiff in error is successful in the higher court. It 
 
 15 On the character of judicial acts, cf. Jeze, Revue de Droit 
 Public (1909), p. 661 ; Duguit, Traite, I, 260f. [Cf. also Duguit, 
 Separation des Pouvoirs, p. 14f ; and Dupont, Archives Parlemen- 
 taires, 1st Series, Vol. XII, p. 140.] 
 
RESPONSI B ILITY 221 
 
 has been urged that in such a case the principle of 
 finality does not exclude the principle of responsi- 
 bility. That is true enough. But, in neither hy- 
 pothesis, does the state become irresponsible because 
 of the principle of finality. 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 al- 
 ready a different question. For long this irresponsi- 
 bility knew no exception, but in 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 legislature here declared itself a partisan of the 
 idea that in such a case the business of justice has been 
 badly performed by condemning definitely an inno- 
 cent person. Whether there is fault or no in the ju- 
 dicial officer does not matter, the fundamental fact is 
 a miscarriage of justice. The national exchequer 
 must recognise a miscarriage performed for its bene- 
 fit. There the legislature stops; and it has always 
 been narrowly interpreted. 
 
 The same question is raised for non-jurisdictional 
 acts. Here the reasons which obtain in regard to 
 
222 LAW IN THE MODERN STATE 
 
 judicial decisions are not involved ; but responsibility 
 has not yet been admitted and seems still far off. 
 Writers of authority, like M. Teissier 16 and M. Gar- 
 raud, 17 think that state responsibility cannot be in- 
 volved for arbitrary arrest by an officer of the law. 
 M. Holland, one of the most recent commentators, 
 has insisted 18 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 ar- 
 ticle contained the principle of state responsibility 
 when the police 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 
 to be found. The text adopted by the senate at the 
 second reading in 1909 contains an article which de- 
 fines the cases where a magistrate can be sued and 
 makes the following proposal: "The state is civilly 
 responsible for condemnation to damages pro- 
 nounced against magistrates save for its appeal 
 against the latter." The senate thus recognises the 
 responsibility of the judiciary only for such personal 
 faults as give rise to suit and indirect responsibility 
 on its part. Dominated by outworn civilian theory, 
 it destroys the direct responsibility of the state and is 
 
 16 Teissier, op. cit., no. 42. 
 
 17 Precis de Droit Criminel (1908), p. 943. 
 "Revue de Droit Public (1909), p. 727. 
 
RESPONSIBILITY 223 
 
 out of harmony with the general evolution of public 
 law. 
 
 It may be noted that since 1910 a vote of credit has 
 been granted to the Minister of Justice "for individ- 
 uals who have been arrested and then released by vir- 
 tue of decisions in chambers or by reason of a nolle 
 prosequi or acquittal by the decision of the court." 19 
 But in his report of 1910 M. Bourely explained "that 
 we do not intend to recognise any right to compensa- 
 tion on the part of victims of arbitrary arrest; that 
 proposal is reserved until the bill dealing with the 
 guarantees of individual liberty has been examined." 
 But the bill has not been voted upon and it seems post- 
 poned to the Greek Kalends. 
 
 The only explanation for such an attitude is the 
 erroneous assimilation of two entirely different kinds 
 of acts. It is unconsciously believed that the deci- 
 sion of the court is like the decision of the police. It 
 is an error that has often been denounced but seems 
 endorsed with tenacity. We can only believe that in 
 the end the reality of facts will prove stronger than 
 tradition and that the situation of a judicial officer 
 will be in all non-jurisdictional equated with that of 
 an administrative official. 20 
 
 VI 
 
 It is indeed with the latter that the legal system of 
 
 19 Budget of 1912, Journal Official, Feb. 28, 1912, art. 23. 
 
 20 Cf. Larnaude, Revue Penitentiare, 1901, p. 185; Lerebourg- 
 Pigeonniere, Ibid, p. 1130. 
 
224 LAW IN THE MODERN STATE 
 
 public responsibility has thus far attained its 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 made between 
 sovereign and non-sovereign acts. Above all, the 
 last step in this evolution has been taken and govern- 
 ment liability may be involved where there is no fault 
 in service. 
 
 It is true, of course, that the idea of fault is still 
 found in the reports, but by that is meant, not the 
 fault of a personified service, but the fault of an ac- 
 tual agent. Sometimes the fault is real ; in that case 
 it is the basis of governmental penalization, whether 
 the fault is violation of statute or official negligence. 
 Sometimes no such fault is to be found ; but the courts 
 insist on assuring the private citizen against the dam- 
 age that may be caused by the operation of the public 
 service, by making the state responsible. This is 
 what has been called assurance against administra- 
 tive risk. 
 
 Here in all its fullness is made clear a fundamen- 
 tal notion of the new public law. The state is the 
 totality of public services operated by government in 
 the general interest. Once that operation involves 
 special prejudice to a private citizen, the national 
 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 22 $ 
 
 I showed earlier in this chapter that, in a frankly 
 imperialist system, the irresponsibility of the state 
 was a principle to which no exception save expropri- 
 ation, direct or indirect, and permanent proprietary 
 damage, was admitted. The principle was too nar- 
 row to be fundamental. With the increase of state 
 functions the theory of irresponsibility became unat- 
 tainable. It was seen that the theory, to which some ^ 
 partisans are still attached, of the distinction between /u^ 
 irresponsible sovereign acts and responsible non-sov- 
 ereign acts was involved. To-day that theory is im- 
 portant only as a stage in progress. In the earlier 
 editions of his book on administrative law, M. Ber- 
 thelemy formulated it as a dogma and as late as 1913 
 he could still maintain the irresponsibility of the 
 state, save where statute had otherwise provided. 21 
 But he has been obliged to recognise the emergence 
 of change and the evolution by the courts of the the- 
 ory of responsibility. He thinks, indeed, that they 
 are contrary to law. "The Council of State," he 
 writes, 22 "is the only judge of the fairness of the com- 
 pensation 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. ... I must insist on the 
 arbitrary appreciation that is here given by the Coun- 
 cil of State." In other terms, M. Berthelemy be- 
 lieves that a governmental act raises in law no claim; 
 
 21 Droit Administratif (7th ed.), p. 7Q . 
 
 22 Ibid. , p. 79 and note 1. 
 
226 LAW IN THE MODERN STATE 
 
 in fact, and for reasons of justice, the 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 prac- 
 tical need. No rule not so distinguished can be a 
 rule of law. If in equity and practise the state is re- 
 sponsible for damage involved in the performance of 
 its functions/ the rule of law must conform to that 
 responsibility. 
 
 How has that happened? Undoubtedly because 
 the modern mind is dissatisfied with the classic the- 
 ory of sovereignty; and it is possible to point out the 
 moment when French jurisprudence accomplished 
 the change. In 1899 the Council of State dealt with 
 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, 
 responsible for the negligence of its agents. ... It 
 is admitted that Le Preux may secure personal dam- 
 ages against the officials concerned but that gives no 
 right of action against the state.' 7 23 
 
 28 Recueil, 1899, p. 17. 
 
RESPONSIBILITY 227 
 
 This decision was most vehemently criticised by 
 M. Hauriou in a most remarkable note in Sirey. 24 
 He did not go so far as to recognise the general re- 
 sponsibility of the state. Like the Court, he admit- 
 ted 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 state comes into contact with private citi- 
 zens in the performance of its functions, no mat- 
 ter 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. Several years later a case arose 
 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 gen- 
 darme, fired at a mad bull which m a^owd.was_chas- 
 ing. 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 
 
 2 * Sirey, 1900, III, p. 1. 
 
228 LAW IN THE MODERN STATE 
 
 responsible." 25 M. Romieu, as counsel for govern- 
 ment, put the bearing of this statement in the clearest 
 relief: "It is true that for some time jurisprudence 
 has admitted that for acts of police or of sovereignty 
 the state has no pecuniary responsibility. But it has 
 ended by admitting the inconveniences, the contradic- 
 tions and the injustice to which so general a formula 
 would 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, still connected this responsibility with a 
 fault of the public service. How was that to be in- 
 terpreted? M. Hauriou tried to show that it meant 
 a fault of the state regarded as a person. "The state," 
 he says, 26 "is responsible because the fact of service 
 makes it a fault." But that was not in the mind of 
 the Council of State ; when it said "fault of service" 
 it meant "faults committed by agents in that serv- 
 ice." It meant that the possibility of such faults in- 
 volves a risk but that if the risk is realised the state 
 must pay. There was no state responsibility where 
 the agents were not at fault. 
 
 On the other hand, the Council did not imagine 
 more than individual administrative acts. Acts of 
 regulation were still surrounded by the penumbra of 
 
 25 Conseil d'Etat, Feb. 1st, 1905, Recueil, p. 140; Sirey, 1905, 
 III, p. 113. 
 
 26 Sirey, 1905, III, 113. 
 
RESPONSIBILITY 229 
 
 sovereignty; and it was long before that ghost was 
 banished. Meanwhile the Council of State recog- 
 nised in a whole series of decisions government re- 
 sponsibility. Since 1903 it had implicitly admitted 
 that the state could incur responsibility for the un- 
 just dismissal of a civil servant. It gave compensa- 
 tion for the abusive execution of a decision of a pro- 
 jectoral council. In 1910 the state was compelled 
 to pay damages to certain old soldiers who had been 
 called with undue slowness to civil employment in 
 violation of the Act of 1905. In 1911 the state was 
 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 
 a fault in operation or an agent's negligence. But it 
 is to be noted that the Council is generous in its inter- 
 pretation of fault. It takes it for granted ; and as a 
 consequence the administration does not urge con- 
 current negligence on the part of the private citizen. 
 This presumption of fault was strikingly shown in 
 the Pluchard case. 27 Pluchard was knocked down 
 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 
 the occurrence was a simple accident. Compensa- 
 tion was however granted. "The circumstances 
 show entire absence of negligence on the part of the 
 plaintiff, and the accident must therefore be attrib- 
 uted to a fault in the public service which involves 
 
 "Recueil, 1910, p. 1029. 
 
230 LAW IN THE MODERN STATE 
 
 the responsibility of the state." Where is the fault? 
 The policeman was pursuing the criminal ; he accom- 
 plished his task, and the accident was produced by an 
 unhappy chance independent of any negligence. 
 The term only expresses a linguistic tradition. 
 The real evolution has been accomplished. The re- 
 sponsibility of the administration is involved where 
 a special prejudice touches an individual or a group. 
 Administrative risk begets administrative responsi- 
 bility. 28 
 
 VII 
 
 A last step remained. So far, state responsibility 
 has been involved only where individual administra- 
 tive acts have been concerned. In 1903 when the 
 general responsibility of the state began to be admit- 
 ted, there was no thought of extending it to govern- 
 ment ordinances. M. Hauriou, in the note cited 
 above, recognised without difficulty the irresponsi- 
 bility of government in this regard. This concept 
 no longer holds good. To-day governmental re- 
 sponsibility is involved no less for ordinances than 
 for personal acts. 
 
 This responsibility was recognised in the decision 
 of 1907, which has already been cited. The railway 
 companies urged that the decree of March ist, 1901, 
 on railroad safety, which modified the previous or- 
 
 28 Note, however, the hesitation of the Council of State in the 
 Ambrosini case; and cf. the comment of M. Hauriou, Sirey, 1912, 
 III, 161. 
 
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 in- 
 crease of expenditure was ultra vires by violating an 
 implied contract. The Council of State rejected this 
 application. Government, in its view, has always 
 the right to change the conditions under 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. 29 Here the responsi- 
 bility of the state for an act of public administration 
 an act comparable to formal statute is clearly ad- 
 mitted. 
 
 It has been shown above that the responsibility is 
 not, in fact, contractual ; even though the Council of 
 State makes use of that category. The idea of public 
 service is here all-important. The 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. 
 
 The same answer has been given when prefects 
 modify by regulation a local railway or tramway 
 service in 'private hands by the power conferred on 
 them in the Act of June u, 1880. The compensa- 
 tion is then borne by the public funds of the depart- 
 ment or commune served by the company. This was 
 decided in more different decisions in 1910 by the 
 
 29 Recueil, 1907, p. 913;Sircy, 1908, III, 1. 
 
232 LAW IN THE MODERN STATE 
 
 Council of State. The prefect of the Seine ordered 
 the Metropolitan Company, for the safety of travel- 
 lers, to make certain changes which increased the ex- 
 penditure contemplated by the Charter. The Coun- 
 cil upheld his decision but admitted the principle of 
 state responsibility. A month later it gave a similar 
 decision in a southern case. 30 
 
 This solution is a fortiori applicable where the reg- 
 ulation is illegal. The party concerned can have the 
 act annulled 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 prin- 
 ciple is no different. A mayor of the Department of 
 Aude ordered the church bells to be rung at civil 
 funerals. 31 The Council of State has often held this 
 act ultra vires in view of the law of January 2, 1907. 
 This law declared the churches especially devoted to 
 the Catholic religion, free from lay control in re- 
 gard to their internal property. In the case quoted 
 the legal period of plea had elapsed. The action for 
 
 30 Recueil, 1910, pp. 97 and 216; Revue de Droit Public, 
 1910, p. 270. 
 
 81 Le Temps, June 17, 1912. 
 
RESPONSIBILITY 233 
 
 compensation was won, because the communal ex- 
 chequer must repair any material or moral preju- 
 dice suffered by a private citizen by reason of the 
 police service of the commune. 
 
 The vast extension of state responsibility in modern 
 law has received recently a curious application in a 
 decision of the tribunal of the Seine. It forms the 
 epilogue in the long and regrettable Turpin case. 
 Turpin was the inventor of melinite. He brought 
 an action for damages against the state, Schneider & 
 Co., the Iron Company of the Mediterranean and M. 
 Canet. The tribunal of the Seine limited the case to 
 the state and condemned it to pay Turpin one hun- 
 dred thousand francs in damages. "The acts of the 
 Minister of War," said the court, 32 "have clearly 
 caused Turpin a prejudice for which the state is re- 
 sponsible. . . . This prejudice results from prevent- 
 ing Turpin from opening negotiations with Arm- 
 strong; whether because the Department of War left 
 to him the vain expectation of making a new arrange- 
 ment with France, or because the Department, under 
 false promises of compensation, had obtained the in- 
 clusion of certain clauses in his contract with Arm- 
 strong . . . clearly Turpin has the right to compen- 
 sation." 
 
 No decision shows better how far our age has 
 travelled from the imperialist conception of law. 
 We need not inquire why the court did not declare 
 itself incompetent in the case nor why the question 
 
 32 Le Temps, Jan. 13, 1911. 
 
234 LAW IN THE MODERN STATE 
 
 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 
 recognises that the state is responsible, not for what 
 it has done, but for what it has failed to do. It holds 
 the state responsible for not buying 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 
 vindicated. 
 
 It is therefore probable that the restrictions which 
 still limit the general responsibility of the state will 
 soon disappear. The courts have constantly held 
 that for acts of war or diplomacy the state cannot be 
 held responsible. No sovereignty is in question 
 here ; for, if it were, internal no less than external se- 
 curity would be protected by it, and both the police 
 and the army would be irresponsible in time of peace. 
 Though that is not the case, yet state responsibility is 
 not involved in these two categories of acts. Thus in 
 1905 and 1907 a Council of State decided against 
 pleas for compensation for damage inflicted in the 
 Dahomey and Madagascar wars on the ground that 
 military operations on foreign territory cannot give 
 rise to action in the courts. 33 Similarly, in 1904, it 
 refused a plea of prejudice occasioned by diplomatic 
 
 wRccucil, 1905, p. 226; Ibid, 1907, 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 can- 
 not be brought before the Council of State. 34 The 
 court thus used the idea of sovereignty to evade the 
 idea of responsibility. Dead in the domain of in- 
 ternal public law, it still persists in the realm of for- 
 eign policy. But here also it is destined to perish. 
 
 VIII 
 
 While the responsibility of the state has thus been 
 enlarged, what has been the evolution of the personal 
 responsibility of the civil servant? It has undergone 
 at once extension and precision. 
 
 The question of this responsibility is asked in en- 
 tirely different terms from that of the responsibility 
 of the state. That, as we have shown, is the purely 
 objective responsibility of risk. The responsibility 
 of the civil servant is on the contrary the subjective 
 responsibility of fault. It is they themselves who 
 act, and not some fictive person of whom they are 
 the mandatories or organs. Officials are individuals 
 in presence of other individuals, citizens subject to 
 the control of the courts. The problem of responsi- 
 bility as between two individuals goes back to a con- 
 flict between two wills; responsibility ought natur- 
 ally to rest upon him who has consciously violated 
 some rule of law. But that is the definition of fault. 
 
 34 Recueil, 1904, p. 873; Revue de Droit Public, 1905, p. 98. 
 
236 LAW IN THE MODERN STATE 
 
 The evolution of public law has been the deter- 
 mination 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 citizen. This evolution is to-day prac- 
 tically completed. There is a complete category of 
 civil servants in relation to 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 
 the judiciary, but under strict limitations. It enu- 
 merates definitely the cases in which they can be 
 made responsible and the method by which it may be 
 engaged. That can be done only where there is some 
 kind of fraud, whether in the course of proceedings, 
 or at the moment of the verdict, or when there is the 
 denial of justice; that is to say, when the judge "re- 
 fuses to 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 
 rigid limits will be widened. Certain attempts, in- 
 deed, have already been made in this direction. In 
 the preamble to his statute on the protection of indi- 
 vidual liberty, M. Clemenceau, in 1904, as simple 
 senator, declared that the basic guarantee of individ- 
 ual liberty was a well-organised responsibility of the 
 judicial office. The same ideas underlay the pro- 
 posal of M. Cruppi in 1905. The proposal, read a 
 second time by the senate on March 2, 1909, enlarged 
 
RESPONSIBILITY 237 
 
 and made precise those cases where judicial officers 
 can be held personally responsible; but the special 
 procedure was retained in a fashion so technical that, 
 as was said in the discussion, only two cases had been 
 successful since the promulgation of the code. The 
 pith of the matter lies there. 
 
 IX 
 
 No texts restrict the responsibility of administra- 
 tive civil servants, and our evolution goes forward 
 without hindrance. The Constitution of the year 
 VIII, while it maintains the principle of responsi- 
 bility formulated by the earlier constitution, subordi- 
 nates every penal or civil action against a civil serv- 
 ant 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 suc- 
 cess. Art. 67 of the Charter of 1830 announced a 
 statute on the responsibility of officials; a bill was 
 brought forward and there were, particularly in 
 1835, long and confused discussions. All to no end; 
 Art. 75 remained always in force. The Republic of 
 1848 did nothing and, naturally, the Second Empire 
 took care to prevent its abrogation. Since the Coun- 
 cil of State had still only a consultative power every 
 action against the civil service was subordinated to 
 the pleasure of government. At the end of the Sec- 
 ond Empire the abrogation of Art. 75 was one of the 
 
238 LAW IN THE MODERN STATE 
 
 essential principles of the liberal and republican pro- 
 gram. One of the first acts, therefore, of the govern- 
 ment of National Defence was the decree of Sept. 
 19, 1870, abolishing all restrictions of this kind. 
 
 This text, which seems clear enough, yet gave rise 
 to great controversy of which the interest is n'ot 
 merely historical. The law has been settled by a de- 
 cision of the Court of Conflicts based on the report of 
 M. Mercier in the Pelletier case. This was an ac- 
 tion 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. 
 The court said that "the decree which abolishes Art. 
 75 has only put an end to that non-receivability 
 which gives to the ordinary courts complete freedom 
 of action within the limits of their capacity; but it has 
 not extended their jurisdiction, or suppressed the pro- 
 hibition against them, to take cognisance of adminis- 
 trative acts." The decision then insisted on the ad- 
 ministrative character of the act leading to the pros- 
 ecution, and said : "Outside this act the plaintiff has 
 imputed to the defendant no personal act involving 
 his private responsibility." 35 
 
 So was created by the Court of Conflicts the dis- 
 tinction between official and personal acts. For offi- 
 cial acts the government alone, and not the civil serv- 
 ant, is responsible; the latter is only responsible for 
 personal acts and most often the Court of Conflicts 
 
 85 Recueil, 1873, suppl. I, p. 117; Sirey, 1874, II, 28. 
 
RESPONSIBILITY 239 
 
 decides if the act is personal. Where the official is 
 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 
 the prefectorial decision; otherwise it sends it back 
 to the ordinary court and the latter then proceeds in 
 its usual manner. The Court of Conflicts thus exer- 
 cises a power which is not its own in law. In reality, 
 it does not pass upon a question of capacity, which is 
 not a matter of debate, but upon the question of 
 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- 
 covery of a criterion by which to distinguish personal 
 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 contrary to the most recent 
 decisions which, in the 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. Its gravity will make him re- 
 sponsible to the state even while it leaves him irre- 
 sponsible so far as the private citizen is concerned. 
 
 This is logical enough. It has been shown above 
 how in the theory of the modern state the responsi- 
 bility of the state is not subjectively recognised ; nev- 
 ertheless, the private citizen is so to speak insured 
 
240 LAW IN THE MODERN STATE 
 
 against the risks arising from each public department 
 by claims in its special budget. Every time the de- 
 partment acts, the citizen has his safeguard, but not 
 otherwise ; in other cases it is the civil servant alone 
 whom he can make responsible. That clearly em- 
 phasises our conception of the state as a complex 
 public service corporation. A personal act is obvi- 
 ous when the civil servant either breaks the rules, or 
 goes beyond his powers; as, for instance, in pursuing 
 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- 
 cause, although he has gone 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 
 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 
 dishonesty and called him a thief. The boy was dis- 
 missed and summoned the inspector before the Cor- 
 rectional Court of Toulouse. The prefect took the 
 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 admin- 
 istrative function and were exclusively personal to 
 himself." 36 
 
 86 Recueil, 1909, p. 726. 
 
RESPONSIBILITY 24! 
 
 The Court of Conflicts has very clearly admitted 
 this definition of personal as equivalent to the pur- 
 suit of an end unconnected with function in the Mori- 
 zot case. M., a teacher in the commune of the De- 
 partment of the Cote-d'Or, made obscene remarks 
 before his class, slandered the army, apologized for 
 certain criminal acts, and blasphemed certain reli- 
 gious and Catholic beliefs. The fathers of his pu- 
 pils summoned him before the courts and claimed 
 2,000 francs damages. The prefect removed the 
 case to the Administrative Courts ; but that tribunal, 
 basing itself upon the admirable report of M. Tar- 
 dieu, annulled his decision. "The defendant's re- 
 marks," it said, 37 "cannot if proved be considered 
 as in any way connected with the teaching which is 
 his function . . . and therefore constitute a purely 
 personal fault." 
 
 Another case is of interest. A mayor gave orders 
 to a municipal official to sound the church bells at a 
 civil funeral. He was sued by the curate and the 
 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. 38 
 
 Where the personal responsibility of the civil serv- 
 ant is engaged, no parallel responsibility attaches to 
 
 "Redieil, 1908, p. 597; Sirey, 1908, III, 83. 
 38 Recueil, 1910, pp. 323, 442; Sirey, 1910, III, 297. 
 
242 LAW IN THE MODERN STATE 
 
 the state. This has sometimes caused surprise, but 
 only among those writers dominated by the theories 
 of the Roman law. They forget that the state is not 
 a person responsible for the acts of its agents and 
 that by its responsibility we only mean an assurance 
 to the citizen against the results of its operations. 
 Clearly the public treasury cannot pay for faults un- 
 connected with the duties of the state. 
 
CONCLUSION 
 
 AT the beginning of this book I pointed out that pub- 
 lic and private law evolve on parallel lines. In pri- 
 vate law the autonomy of the human will is in proc- 
 ess of disappearance; the individual will is powerless 
 by itself to create a legal situation. In public law 
 we no longer believe that behind those who hold of- 
 fice there is a collective personal and sovereign sub- 
 stance of which they are only the agents or organs. 
 In government we see only those 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 rules reg- 
 ulating the relation of a sovereign state with its sub- ^ 
 jects ; it is rather the body of rules inherently neces- 
 sary to the organisation and management of certain 
 services. Statute is no longer the command of the 
 sovereign state; it is the organic rule of a service or 
 body of men. An administrative act is no longer the 
 act of an official who gives commands or of a public 
 servant who fulfils a command; it is always an act 
 made in view of the rule of service. The problems 
 
 243 
 
244 LA W IN THE MODERN STATE 
 
 such acts involve are always submitted to the judg- 
 ment of the same courts. If the act violates a stat- 
 ute every affected person can demand its annullment, 
 not as a subjective right but in the name of the legal- 
 ity that has been violated. The responsibility of the 
 state is generally recognised. It is not the responsi- 
 bility of a person for faults but a public assurance, 
 through public funds, against the risks involved in 
 service. If the official goes outside his functions his 
 personal responsibility becomes involved. 
 
 Thus public law like private law is coming to be 
 interpreted realistically and socially. Realistically, 
 in its denial of a personal substance behind actual ap- 
 pearance, in its refusal to admit the existence of a 
 self-determined and universally imposed will, and 
 in its derivation from the idea of a function that is 
 necessarily imposed on government. It is a social 
 conception, in that public law no longer has as its 
 object the regulation of the conflicts that arise be- 
 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 at the root of public law, is not 
 based upon the violation of individual right but upon 
 the destruction of an organic rule of service. 
 
 This evolution is not at its end; indeed, there is a 
 sense in which it will never end. Social evolution is 
 of infinite complexity and indefinite duration; law is 
 no more than its protective armament. The genera- 
 
CONCLUSION 245 
 
 tion that went before believed that its system of law, 
 metaphysical, individualistic, and subjective, was 
 definite and final. Let us not commit a like mistake. 
 Our own system, realist, social, and objective, repre- 
 sents but a moment of history; and before it has been 
 finally builded the 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. 1 
 
 THE END 
 
^ 
 
 "7t#7>^ 
 
 j'l^x'l 
 
BIBLIOGRAPHICAL NOTE 
 
 I. M. Duguit has written the following treatises: 
 
 i. La Separation des Pouvoirs et L' Assemble Constitu- 
 
 ante. Paris, 1893. 
 ii. L'Etat: Le Droit Objectif et La Loi PositiL Paris, 
 
 1901. 
 
 iii. L'Etat: Les Gouvernants et Les Agents. Paris, 1903. 
 iv. Traite de Droit Constitutionnel. 2 vols. Paris, 1911. 
 v. Manuel de Droit Constitutionnel. (3rd edition..) 
 
 Paris, 1918. 
 vi. Le Droit Social, Le Droit Individuel et L'Etat. (2nd 
 
 edition.) Paris, 1911. 
 vii. Les Transformations Generates du Droit Prive. Paris, 
 
 1912. 
 L, viii. Les Transformations du Droit Public. 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 Con- 
 tinental Legal Historical series, also edited by Prof. Wigmore. 
 
 II. The following are M. Duguit's chief articles: 
 
 i. Le Droit Constitutionnel et La Sociologie. 
 
 Revue Internationale de FEnseignement (1889), Vol. 
 
 28, p. 495. 
 ii. L'Election des Senateurs. 
 
 Revue Politique et Parlementaire (1895), p. 61. 
 iii. L'Acte Administratif et L'Acte Jurisdictionnel. 
 
 Revue de Droit Public (1906), Vol. XXIII, p. 413. 
 iv. De la situation des particuliers a 1'egard des services 
 publics. 
 
 Revue de Droit Public (1907^ Vol. XXIV, p. 414. 
 v. De la responsabilite pouvant naitre a 1'occasion de la 
 loi. 
 
 Revue de Droit Public (1910), Vol. XXVII, p. 637, 
 247 
 
BIBLIOGRAPHICAL NOTE 
 
 vi. La Representation syndical au Parlement. 
 
 Revue Politique et Parlementaire (1911), Vol. 69, 
 
 p. 28. 
 vii. Law and the State. 
 
 Harvard Law Review (1917-8), Vol. XXXI, p. 1. 
 viii. Collective Agreements. 
 
 Yale Law Journal, April, 1918. 
 
 The following are among the more important discussions of 
 M. Duguit's work: 
 
 J. Berthelemy: Revue de Droit Public (1908), Vol. XXV, p. 
 
 152. 
 
 W. Jethro Brown: Law Quarterly Review (July, 1916), p. 168. 
 J. Charmont: La Renaissance du Droit Naturel (1910), pp. 
 
 190-9. 
 A. Esmein: Elements du Droit Constitutionnel (6th edition), 
 
 p. 32. 
 J. Faurey: Revue Generate du Droit (1914), Vol. XXXVIII, 
 
 p. 260. 
 F. Geny: Revue Critique (1901), N. S. Vol. XXX, p. 502. 
 
 F. Geny: Science et Technique en Droit Prive (1915), Vol. 
 
 II, p. 191. 
 
 M. Hauriou: Les Idees de M. Duguit (1911). 
 L. Michoud: Theorie de la Personnalite Morale (1906), Vol. 
 
 I, p. 44. 
 
 H. Nezard: Revue Generate de I' Administration (1912), Vol. 
 
 II, p. 129. 
 
 G. Richard: Revue Philosophique (1912), Vol. 73, p. 225. 
 R. Saleilles: Revue. Montalembert (1909), p. 256. 
 
 Harvard University, 1919. 
 
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