Views of exponents of political pluralism

Ideas and formulations of Gierke and Maitland (doctrine of real personality), William James (multi-verse and plurality of ideas), Durkheim and Boncour (professional and occupational associations), Bentley (interest groups) have in one way or the other influenced the pluralist criticism of the monist theory of sovereignty. A brief survey of the views and writings of the exponents of political pluralism may help us understand the perspectives from which these writers attack traditional concept of sovereignty and its monist formulation. These exponents have based their formulations and criticisms from the perspective of (i) group autonomy, (ii) functional representation, industrial federalism and economic decentralization, (iii) priority and superiority of law including international law, (iv) internationalism and above all, (v) not only an understanding of a pluralistic nature of society but a vision of such a society. We may briefly survey the views of Duguit, Krabbe, Lindsay, Figgis, Follett, Barker, MacIver and Laski.

Leon Duguit: Léon Duguit, a French Professor of law, criticized the concept of legal sovereignty and maintained that ‘the concept of sovereignty is a fiction without value and without reality and should be banished from the literature of public law.’²⁴ Duguit is not the only pluralist who suggests removal of the concept of sovereignty as Krabbe, Lindsay, Barker and Laski all would like to do the same. However, Duguit along with Krabbe makes this suggestion purely on the legal ground. According to Coker, ‘the most fundamental attack that can be made on the doctrine of sovereignty is that which directly challenges the claim that the State, or some sovereign organization within the State, makes law.’²⁵ Duguit’s views on relation of the State to law do this in a systematic manner. His idea of law (droit) and its relation to the State is mainly found in his work Law in the Modern State.

It may be mentioned that Duguit belongs to the Sociological School of Jurisprudence as opposed to the Analytical School of Jurisprudence. While the Analytical School holds laws as positive and direct command of a competent authority, the Sociological School holds that laws are rules already present in society and do not emanate from any agency like the State. According to Sociological School of jurisprudence, the State is not the source of law as law comes from society and social necessity, not from the legislator or creator. It is this attack on the claim of the State to be the source of law or the sole source of law that finds eloquent expression in Duguit. For Duguit, law is not the command of the State or sovereign but conditions of social solidarity. Law has its origin in society and embodies rules of conduct that are binding upon the members for the sake of promoting benefits that society confers. To live in society and enjoy its benefits require interdependence of each other and exchange of services as they have diverse capacities. These facts constitute social solidarity and necessitate fundamental rules of social conduct. The conditions, then, of social solidarity would be ‘respect all acts determined by the end of social solidarity; abstain from acts determined by ends contrary to social solidarity; do everything possible to develop social solidarity.’²⁶ As Coker says, law for Duguit, is independent of, superior and anterior to, political organization, and is objective, not subjective. It is independent because it emanates from society and its requirements; superior because law as condition of social solidarity has moral and legal justification; objective because validity of any rule depends not on its source (as command of the sovereign) but upon the end and objects which it serves—guarantee cooperation towards social solidarity. The state should through its action secure social solidarity. Thus, state is subordinated to the rules of social solidarity because validity of law depends not on its sanction by the State but on its social necessity. Duguit stresses on the public service role of the State as its essential characteristic rather than sovereignty.

Further, Duguit differentiates between state authority and the authority of law. For him, there is no essential connection between a state and law and the State authority has no legal and moral justification. Thus, the State has no claim to law; left alone it being a command of the sovereign. The authority of law itself is supreme to which the State is subject.

Duguit has been criticized for his extreme views on sovereignty. According to Garner, jurists in France like Esmein, Hauriou, Malberg and Michoud have pronounced his theory as ‘doctrinal anarchy’ and ‘anarchic and incompatible with social necessities’, which could lead to ‘reign of force’. Though Duguit declares that ‘there is no sovereignty; there is no commanding and superior will of the State, he defended himself against the criticism of the French jurists that his theory is anarchist by saying that unlike the anarchists, his theory did not deny the necessity or the fact of government.²⁷ Nevertheless, Duguit, by removing the location of law from the sovereign to the society and by questioning the social legitimacy of command of the State, has already taken away what government could claim—authority.

Hugo Krabbe: A Dutch jurist, Krabbe proceeded on the same line as Duguit and recognized sovereignty of law and not sovereignty of the State. The Modern Idea of the State, he deals with law, its origin, authority and its relationship with the State. Krabbe places law above the State and in origin, independent of it. Like Duguit, he also locates origin of law away from the sovereign. Krabbe accepts only the authority of law as valid and rejects the notion that law is command of the sovereign.

For him law ‘springs from men’s feeling or sense of right’²⁸ and is not command of the sovereign. We may proceed by analysing Krabbe’s view of law and its origin by asking, from whose sense of right does law derive and what is its validity? For Krabbe, law is neither for individual nor determined by individual feeling or sense of right. If so, then each individual will recognize as law those rules, which are derived from sense of right and there would be no common end. Hence, law must be based on the feeling or sense of right of community. Law is rule of the community, which has a social or common end. Law is characteristic of groups or community whose members are convinced or unanimous as to what is right. As such, sense of right requires legal unity, as there could be a variety of opinions within the community as to what is demanded by a sense of right. The operative mechanism suggested by Krabbe for securing legal unity is ‘sense of right of the majority of the people’. There cannot be a single rule except by recognizing the principle of majority. Like Duguit, Krabbe also holds that law does not originate from any organ or group of organs occupying a position as sovereign within the State. He, however, does not deny that there could be organs that issue commands and make decisions obeyed by the bulk of the community in a state.

For Duguit, as we have seen above, validity of any rule depends not on its source, but upon the end and objects which it serves. Krabbe, however, is not inclined to find such an objective test for the definition of law. For him, law is determined by the source from which it springs (sense of right) and not by its object. But unlike the traditional concept of source of law as sovereign, for Krabbe this source is different. ‘Law is objective in so far as the human will is concerned.’ But law is essentially ‘subjective, for law is the totality of rules, general or special, written or unwritten.’²⁹

Krabbe though gives supremacy to the authority of law, differs from Duguit’s view that the State is unrelated to law. Krabbe does not accept the view that political relations are relations of the stronger to the weaker. He rejects the idea that power is an essential feature of the State and recognizes the State as a legal community—a portion of mankind having its own independent body of legal relations. The essence of state lies in operation of legal relations and imputing legal value to certain interests. Krabbe thus recognizes the statutory law though he feels that if statutory law goes against the sense of right of majority, unwritten law will soon bring it in conformity with that sense of right. He further holds that ‘where the power of the State or decree of the court enforces or applies rules that do not come from the sense of right, they are applying something other than law.’³⁰ In this way, Krabbe differs from Duguit in his views on the relation of state and law.

With respect to extension of his concept of law as sense of right to international relations, we have already seen his concept of present states evolving as provinces of one super-national state.

A. D. Lindsay: Professor Lindsay of the Oxford University is one of the pluralists in England who advocated autonomy of corporate personalities. He presented his pluralist ideas in the oft-quoted article titled ‘The State in Recent Political Theory’ published in The Political Quarterly, (February 1914).³¹ Lindsay accepts the juristic/corporate personality theory of organizations and argues that the State is only one of a number of other associations or organizations which posses a corporate personality and will of their own.³² These organizations are characterized by performance of various public services similar to those performed by the State. Lindsay feels that given their homogenous nature and representing a closer community of interests, many of the smaller organizations may attract deeper loyalties of their members and ‘if permitted to act autonomously, prove themselves to be more effective agencies of social coordination than the State itself’.³³ Lindsay went on to declare, ‘if we look at the facts it is clear enough that the theory of sovereign state has broken down.’

However, Lindsay, like some other pluralists, recognizes the State as ‘organization of organizations’ and gives the State a coordinating and regulatory role. He differentiates it from other organizations by its compulsive and comprehensive membership as contrasted to voluntary and selective membership of other organizations and also by its coercive functions. However, as Coker says, he does not regard these attributes as qualifying the State to be designated as a sovereign. This is because power of the State over its members depends upon the will of the members themselves. Therefore, the State could have control over the corporations within it so far as the citizens are prepared to give it such power. To the extent that loyalty of citizens to non-political associations, a class, or a church, or a trade union is greater than their loyalty to the State, the State’s power over the trade unions or churches or classes diminished.

We can infer that Lindsay having accepted the personality theory of groups and making them the location of deeper loyalty of members, adds to the pluralistic view that the State must interact with individuals not as mere individuals but as members of a variety of associations and organizations. However, despite his remarks that theory of sovereignty has broken down, Lindsay tend to leave the State with some preeminence by way of its compulsory and comprehensive membership.

Dr J. Neville Figgis: Dr J. Neville Figgis is one the English writers who was greatly influenced by the real personality doctrine of Gierke. Figgis’s general emphasis is that the proper spheres of essential social groups such as churches, trade unions, local communities and family should be protected. Churches in the Modern State, he advocated that all such groups have character of public associations and they should have a large discretion and initiative in controlling their respective interests.³⁴ He advocated a pluralist society with multiplicity of associations and social organizations.

Figgis’s main focus, however, was to stress the independent legal personality of the Church. He asserted that the church does not exist by the grace of the State but has real personality and power of self-development as a person. In the true pluralist sense, he says that the corporate personality of the church is neither granted nor withheld by the State but has simply to be recognized.³⁵ He advocated priority and autonomy of certain associations particularly the church in relation to the State. Their origin and purpose is independent of the State. A second pluralist theme found in his views relates to interaction of the State with the individuals. As mentioned here, the pluralists maintain that the State must interact with individuals not as mere individuals but as members of a variety of associations and organizations. For Figgis, society is not a ‘sand heap of individuals related only through the State, but an ascending hierarchy of groups’. And as such, the relationship between the individual and the State is always mediated through these groups or hierarchy of groups. A third theme, though related to the second, is a pluralist’s concern for liberty of the individual himself. For pluralists, as Andrew Vincent has remarked, ‘liberty was not primarily the result of the establishment of constitutional rights but rather the dispersal of power amongst natural groups.’³⁶ And for Figgis, the origin of the dispersal of power and the consequent protection of liberty lay in religious groupings. For pluralists, liberty of an individual has to be seen in the context of groups. The theme of liberty found its expression in these words in Churches in the Modern State, above all, we must be willing to put liberty above other ends as a political goal, and to learn that true liberty will be found by allowing full play to the uncounted forms of the associative instincts.³⁷ Liberty of an individual is not posed as a direct anti-thesis to the State but as a mediated process where autonomous groups based on associative and natural affiliations and deep loyalties of their members will ensure the liberty and freedom for them. And this fact gets echo in yet another writing of Figgis (The AntiChrist and Other Sermons) when he says ‘the battle for freedom in this century is the battle of small societies to maintain their inherent life against the all-devouring Leviathan of the whole.’³⁸

Figgis was also appreciative of the guild socialists as he thought of guild socialism as a form of pluralism. For him, the guild socialists recognized the State ‘as merely the final bond of a multitude of bodies, Churches, trade Unions, families, all possessing inherent life, a real thing, recognized and regulated by government.’³⁹ Guild socialism based on the appreciation of medieval guild system was partially, a reaction against the statist inclination of the Fabian socialism. As such, guild socialism was for plurality of associations and their rights as posed against the State. In pluralist cause, Figgis appreciated guild socialists.

On the one hand, Figgis took the cause of pluralism, on the other, as some writers have pointed out, he did not deny the role of the state as distinct from other forms of associations or groups. For him the State is a single entity formed by the collectivity of partially autonomous groups. Figgis assigns a coordinating role to the state so that the groups must be restrained from acts of injustice towards one another and towards others. In fact, Nicholls maintains that Figgis intentionally entitled as Churches in the Modern State instead, as a pluralist would have done, Churches and the modern State.⁴⁰ This may be to show the primacy of the State over the Church and also other associations. However, he maintains that these groups and corporations make their own contribution in the processes of law making by the state.

Mary Parker Follett: Mary Parker Follett along with R. M. MacIver is considered as a supporter of pluralism in America. Follett’s The New State: Group Organization, the Solution of Popular Government explores the ‘nature of authority in a complex modern democracy and the problem of winning the consent of the governed.’⁴¹ She recognized the growing need for organizations and groups in the life of individuals. This may be attributed to her understanding that the concept of majority held by traditional liberal democracy is not sufficient to fulfil the requirement of people in terms of participative democracy and spontaneous and effective consent (as compared to representative or delegated consent).

She favoured pluralistic organization of authority in the State and argued for emergence of small grassroots groups and social centre movements. The New State, according to Lord Haldane, a British statesman, presents ‘hopeful possibilities of the group or neighbourhood method of bringing the state into reality in the individual.’⁴² One example of group or neighbourhood method found practical expression in her attempt to create a collaborative network of elected community representatives, public health officials and doctors to coordinate health care initiatives designed to combat milk-borne tuberculosis and high infant mortality in Cincinnati, USA.⁴³ These initiatives and methods of organizing small grassroots groups resulted out of her belief that ‘potentialities of the individuals remain potentialities until they are released by group life.’ This way of conceiving relationship between individual and groups and her support for grassroots movements presents a pluralist approach to authority and group participation in the state.

Follett, like some other pluralists, was not discrediting the state. For her, despite multiplicity of groups, one requires the State for a fuller expression of individual life. She echoed this very aptly when she said ‘no number of groups can enfold me’ and declared in an unpluralistic chord that ‘the home of my soul is in the state.’⁴⁴ As such, no one group or any number of groups can claim the uniqueness as that of the State. She assigns the State a superior position and unifying role in society. Follett conceived the State ‘like a tree, its branches will widen as its roots spread’ and an organic, ever-changing entity that requires individual involvement, action and experimentation to achieve organizational goals.’⁴⁵ Thus, the State for Follett is a unique agency and must stand above other organizations.

Ernest Barker: Professor Ernest Barker of Oxford University contributed to the pluralist thought, on the one hand, by exploring the pluralistic trend in recent political thought, and on the other, by analysing the negative aspects of the all-powerful and sovereign state. Political Thought in England from Herbert Spencer to the Present Day (1915), Barker explores the independent existence and purpose of groups. As he was writing during the period when First World War had made the State powerful internally and engendered hostility internationally, he argued against this tendency. In his article entitled, ‘The Discredited State’ which appeared in The Political Quarterly (No. 5, February 1915), Barker expressed a very pluralistic opinion thus, ‘No Political theory has become more arid and unfruitful than the doctrine of sovereignty.’⁴⁶ He, like the other pluralists, Krabbe, Lindsay and Laski, also sees the classical doctrine of sovereignty as giving omnipotence to the State unnecessarily.

Barker advocates juristic personality of groups with their own functions, rights and responsibilities. He also admits that permanent groups in society existed prior to the State and have corporate character. However, as we have seen previously, he does not accept the doctrine of real personality. He rejects the view that groups have power of self-consciousness (psychological sense) or are self-conscious and self-determining according to certain principles (in ethical sense). The doctrine of real personality means that the groups have a consciousness and will of their own as distinct from those of their individual members. Barker might have been uncomfortable distinguishing real personality as understood by some of the pluralists from its biological and organic sense as propounded by Bluntschli, Hegel and Bosanquet. For him, when members of a group possess a unifying purpose, the group becomes a person, not because it has its own will or self-consciousness. For analogy, he likens unifying purpose with ‘public mind’ of the whole community. By public mind we mean general consensus amongst the public. Similarly, unifying purpose is a goal about which the members or a group of people feel in the same manner. For example, church, temple or mosque, all represent a unifying purpose of group of people in the form of religious affiliation.

Having said that groups have a unifying purpose and an organizing goal, Barker sees individuals united in various groups with common life and end. In pluralist sense, thus groups become the intermediate stage between the state and the individual. For him, the relationship between individual and groups, groups and the state and individual and the state is expressed in a related manner in pluralist state. Barker’s pluralist state is ‘an association of individuals, already united in various groups each with a common life, in a further and higher group and more embracing common purpose.’⁴⁷ Thus, it becomes easier for Barker to view the state as ‘association of associations’ to further the cause of pluralism.

Despite his pluralistic chord, he gave a unique role to the state by giving it wide-ranging scope of coordination and adjustment. Barker’s ‘…the more embracing common purpose’ and ‘higher group’ mentioned above refers to the primacy of the state as reflecting higher purpose. Barker (Political Thought in England from Herbert Spencer to the Present Day) would like the state to ‘adjust the relations of associations to itself, to other associations and to their own members to itself in order to maintain integrity of its own schemes; to other associations, in order to preserve the equality of associations before law; and to their own members, in order to preserve the individual from the possible tyranny of the group.’⁴⁸ He is of the opinion that despite the claims of rights by the guild, the national groups or the Church, ‘the state will remain a necessary adjusting force’., Though Barker espouses the pluralist cause and demonstrates that the state is faced with not only the individuals but by association of individuals, he assigns the state primacy over associations and gives it an adjusting role.

R. M. MacIver: MacIver, a Canadian-American political sociologist, criticized the legalistic conception of sovereignty. He explored the state–society and state–association relationship to disqualify the conception of unlimited sovereignty. MacIver sought to show that society being a natural phenomenon is prior to the State and that the State exists within the society like any other social organizations. He went on to explore how other social associations like family and church are equally natural and embedded in society. Thus, he brought the State at par and in league with the socially evolved associations. Being a supporter of sociological school of jurisprudence, he rejected the legalistic view of Austin on sovereignty and criticized it by invoking historical and social bases of law as customs, conventions and traditions. The Modern State and also in The Web of Government, he approached the state–society relationship from the sociological point of view. His pluralist ideas and critiques of the monist theory of sovereignty may be discussed in terms of: (i) analysis of state–society relationships and primacy of social over the political, (ii) position of the State with respect to other associations, (iii) authority of law and its social basis, and (iv) end of the State and basis of sovereignty.