Duguit’s Theory of Duty

The Theory of Duty, propounded by the French jurist Léon Duguit (1859–1928), represents a significant departure from the classical notion of subjective rights in jurisprudence. Duguit’s theory is rooted in sociological jurisprudence, which views law as a social phenomenon arising from the needs, functions, and interdependence of individuals within society. Rejecting the concept of individual rights as the foundation of law, Duguit placed social duty at the centre of legal philosophy.

Background and Context

Duguit developed his ideas in the late nineteenth and early twentieth centuries, a period marked by rapid industrialisation, political change, and growing inequality in Europe. The traditional legal philosophies—particularly those of natural law and individual rights—appeared inadequate to address the emerging social realities.
Influenced by sociologists such as Émile Durkheim, Duguit adopted a functional and social perspective, asserting that law originates not in the will of the sovereign but in the objective social solidarity that binds people together.
For Duguit, the legitimacy of law depends on its capacity to promote this social solidarity by enforcing duties rather than asserting abstract individual rights.

Rejection of Subjective Rights

Central to Duguit’s theory is his denial of subjective rights. Traditional legal thought, from Roman law to classical liberalism, considered law as a system of individual rights belonging to persons and enforceable against others. Duguit dismissed this notion, arguing that rights have no independent existence outside the performance of social functions and duties.
He asserted that:

• There is no such thing as an abstract or inherent right belonging to a person simply by virtue of being human.
• Law cannot be founded upon metaphysical ideas of natural or divine rights.
• What truly exists is a network of social functions and duties, which individuals must perform for the maintenance of social order.

Thus, according to Duguit, every individual’s position in society is determined by their functional contribution to collective welfare, not by possession of rights.

Central Idea: Law as a Rule of Conduct Based on Social Solidarity

Duguit’s jurisprudence revolves around the concept of social solidarity. Borrowing from Durkheim, he viewed society as a system of interdependent relationships where individuals depend upon one another for survival and development.
Law, therefore, emerges as a rule of conduct that ensures the harmonious performance of social functions by all members. It is not the command of a sovereign (as Austin claimed), but an objective rule derived from the need to maintain social cohesion.
The law’s legitimacy arises from the social duty of each individual to act in ways that promote solidarity and prevent harm to others.

Duguit’s Conception of Duty

According to Duguit, duty is the central and fundamental element of legal order. Every person, whether private citizen or public official, owes a duty to perform their role in accordance with the collective interest.
Key points of Duguit’s concept of duty include:

1. Law Exists to Enforce Duty, Not Rights
   • The primary purpose of law is to ensure that individuals fulfil their social duties rather than claim personal privileges.
   • Duties are imposed by social necessity, not by the will of the State.
2. Functional Basis of Duty
   • Duties arise from the individual’s social function. For example, a doctor’s duty is to heal, a teacher’s to educate, and a judge’s to administer justice impartially.
   • The legitimacy of any occupation or role depends on how effectively it contributes to the welfare of society.
3. Objective Nature of Duty
   • Unlike subjective rights, duties are objective realities, observable through social behaviour and relations.
   • Law enforces these duties because they are essential for maintaining social solidarity.
4. Reciprocity and Interdependence
   • Social order is maintained by mutual recognition of duties.
   • Every individual’s conduct must respect the interdependence that sustains the community.
5. Obligation of the State
   • The State and its organs are equally bound by duties.
   • The State exists not as a sovereign power imposing commands, but as an institution performing social functions for the collective good.

The Concept of the State in Duguit’s Theory

Duguit’s theory challenged the traditional concept of sovereignty. He denied that the State is the ultimate source of law. Instead, he viewed the State as a group of individuals entrusted with public functions, bound by the same duties as other members of society.
He wrote: “The State is not above law; it is itself a collection of duties.”
Accordingly, government officials are functionaries, not sovereign rulers. They derive legitimacy from performing their duties towards the public, not from the exercise of power. When they fail to fulfil these duties, their authority loses its moral and legal foundation.

Law and Social Solidarity

Duguit held that social solidarity is both the foundation and purpose of law.

• Every society depends on cooperation and division of labour.
• Law is the set of rules that ensure individuals perform their roles without disrupting this cooperation.
• Law must evolve with changing social conditions to preserve equilibrium.

Thus, the validity of law depends on its social function—whether it strengthens solidarity and promotes welfare. Laws that harm or ignore social solidarity are invalid in a moral and sociological sense, even if they are formally enacted.

Duguit’s Concept of Justice

For Duguit, justice is not an abstract or transcendental concept but a socially functional one. Justice means the fulfilment of duties that maintain harmony and welfare in society. It is a dynamic principle that evolves with social progress.
A just law is one that corresponds with the moral obligation of solidarity. Justice, therefore, is measured not by individual rights but by the degree to which law serves the common good.

Comparison with Other Theories

This comparison highlights how Duguit replaced both sovereignty and subjective rights with a sociological understanding of law as an instrument of cooperation.

Criticisms of Duguit’s Theory

1. Neglect of Individual Rights:
   • By denying the concept of subjective rights, Duguit’s theory is criticised for undervaluing personal liberty and autonomy.
   • Modern legal systems depend on enforceable rights to protect individuals against state or social oppression.
2. Ambiguity in the Concept of Social Solidarity:
   • The notion of solidarity is abstract and difficult to define objectively.
   • What promotes solidarity in one context may harm it in another.
3. Dependence on Moral and Social Consensus:
   • The theory assumes that people naturally cooperate for social welfare, which may not always reflect reality.
4. Practical Limitations:
   • In practice, law often involves balancing competing rights and interests, not merely enforcing duties.

Despite these criticisms, Duguit’s ideas profoundly influenced modern constitutional and administrative law, particularly in limiting state power and emphasising public accountability.

Influence and Legacy

Duguit’s theory contributed significantly to the development of sociological jurisprudence and welfare-state philosophy. His emphasis on duty and function inspired reforms in public law and administrative accountability.
Key influences include:

• The idea that the State is bound by law and cannot act arbitrarily.
• Recognition of public functionaries’ responsibility to society.
• Foundations for modern concepts such as social justice, public service ethics, and corporate social responsibility.

His ideas also anticipated the rise of functional jurisprudence, which interprets law as a means of achieving social purposes rather than a system of abstract rights.