Proudhon (1809-1865) is generally remembered for remarking, “Property is theft” and “I am an anarchist.” However, behind both of those well-known statements lies his conception of justice, which pervades all of his works. Justice is the central concept to Proudhon’s framework, yet it is not something for which he appears to be well-known. Partially to blame, at least in the English-speaking world, is that his 2,000-page magnum opus, Justice in the Revolution and in the Church, has yet to be translated. Georges Gurvitch (1894-1965), a neglected sociologist, built on Proudhon’s idea of justice and created the theory of social law, which defines law as an attempt to realize justice. In essence, Gurvitch’s (1942) social law recasts the theory of natural law within a framework of individual and collective conscience rather than relying on a metaphysical foundation for law.
Proudhon argued that justice lies at the root of religion and that society is impossible without it. “Justice is the most primitive thing in the human soul, the most fundamental in society, the most sacred among the nations…. It is the essence of religions at the same time as it is the form of reason, the secret object of faith…” (quoted in De Lubac, 1948: 278). At its core, justice is the recognition of human dignity in others and establishes the common interests of order, security, and peace. However, Proudhon argues that in ancient societies, justice is largely detached from equality, particularly in relation to those outside of the community. Over the course of millennia, justice has continually progressed towards equality. Although justice was maintained by religion, due to the advances in science and technology, religion was no longer capable of administering justice. Religion no longer could serve to unify people across society. Instead, only justice can now serve this unifying role across society, and justice now relies on the individual (Jamil forthcoming).
Justice, in this conception, is a normative fact, and lies midway between morality and logic. It is more than commutative and distributive justice. Justice is transpersonal and synthesizes the individual with the universal. As Gurvitch described, “Justice is at once objective and subjective, real and formal, or rather it transcends these opposites because it integrates individuals in a transpersonal, antihierarchal order, in which every individual maintains his own dignity” (quoted in Bosserman, 1968: 25). Hence, justice literally is the glue which makes society possible as it rises to the level of transpersonal values and is, therefore, capable of resolving all kinds of social conflict.
In fact, Gurvitch even argued that the entire idea of “natural law” is simply a crude interpretation of justice. It is no coincidence that the idea of natural law emerged in ancient Greece when religion no longer served as a source for authoritative justice. However, natural law is deficient in that “the ideal norm is confronted with the deviations of reality….” Reality is inherently complex. No fixed law can adequately guide reality. Furthermore, natural law is an artificial abstraction which is detached from social life. As Gurvitch observed, “A purely autonomous law is no longer a law, but a moral postulate, an opinion on the law, rising from the point of view concerning the moral idea, but not the law itself.” Justice is distinct from natural law in that “it is the constitutive element of all law…” (quoted in Bosserman 1968: 36-38). Justice is mobile, infinitely dynamic, and immanent to the conscience. Within the plurality of social groups, there exists it’s own distinct understanding of justice. It is this sense of justice which gives essence to law.
Unlike the law of domination incarnated in the state, social law is immanent to the group and can never be imposed externally. Even within a jury, Gurvitch (1942: 42) argued that the law of domination is not used and, instead, the entire juridical experience is guided by this sense of social law. “Jural immediate experience as an act of recognition is essentially intermediate between an emotional-volitional experience of values and an intellectual experience of logical ideas.” Hence, law ultimately rests on collective experience and presupposes an immanence within the individual. While lawyers and courts attempt to create “law” through their edicts, the juridical experience mocks their mummified decrees. Justice, as well as social law, is inherently immanent to the conscience and cannot derive externally.
Although Gurvitch’s social law has not been given much consideration within academia, Sally Engle Merry (1944-2020) built on Gurvitch’s idea in her theory of legal pluralism, which, in contrast, has attracted considerable attention. Merry (2013: 2) argues law is present outside formal legal structures. In fact, all social interaction is guided by a plurality of laws and normative judgments. These laws “are fragmented, inconsistent, and contradictory. They are a bricolage built up from practice, history, and legacy of efforts to solve earlier problems. Legal practice may be chaotic and incoherent, as a result of developing from a variety of local practices, yet they can be more attuned to local practice than is a remote state law.” These systems of social law are constantly interacting with each other and, in turn, shape each other into a coherent system unique to each group. The theory of legal plurality stresses the incapacity of governments to effectively impose homogenous laws throughout society.
Proudhon’s idea of justice, Gurvitch’s social law, and Merry’s legal pluralism give a concrete basis to understanding how unity can be attained in a pluralistic society. Justice is immanent to the individual and group. It can no longer be based on authority like it once was in traditional religion. Although originally intertwined with religion, justice must now stand on its own. Neither religion nor the state is capable of administering the complexities of justice. Only the conscience is able to administer justice. Social law recasts natural law, taking it out of the metaphysical and placing it within the collective mind. It is time to dust off these neglected ideas and incorporate them into modern thought.
Works Cited:
Bosserman, Phillip. 1968. Dialectical Sociology: An Analysis of the Sociology of Georges Gurvitch. Porter Sargent Publisher.
De Lubac, Henri. 1948. The Un-Marxian Socialist. A Study of Proudhon. Sheed & Ward.
Gurvitch, Georges. 1942. Sociology of Law. London: Routledge & Kegan Paul Ltd.
Jamil, Cayce. Forthcoming. “Resurrecting Proudhon’s Idea of Justice.” The Journal of Classical Sociology.
Merry, Sally. 2013. “McGill Convocation Address: Legal Pluralism in Practice.” McGill Law Journal/Revue de Droit de McGill 59(1): 1-8.
