1. A Triple Movement of Interiorisation, Incorporation and Personification

As we have mentioned, Hauriou characterised the manifestations of communion of a group in the process of becoming an institution as a `triple movement' (Hauriou, 1925: 108): interiorisation of the idea by the group, followed by incorporation and finally personification.

Of these three stages, the process of interiorisation provides the basis for the two latter phenomena. As mentioned earlier, an initial crisis often marks the first stage of interiorisation, the founding moment of the institution or social group. Successive crises, according to Hauriou, will often mark the latter stages of incorporation and personification, which are also moments of further interiorisation of the idea of the institution.

It is important to remember here that for Hauriou, each of these phenomena is empirically observable. Thus, taking the example of the formation of a state, Hauriou mentions the factors which signal the phenomena of incorporation and personification:

(1) Incorporation, which is indicated in the case of a state by the attainmentof `representative government';

(2) Personification, which is achieved when the state reaches the stage of `political liberty with the citizens participating in the government'. At this point the state, or any other social group, attains its `moral personality'.

For Hauriou, then, the difference between the three phenomena is objective, and can be observed sociologically in the behaviour of different groups.

Thus, at the stage of incorporation of a social group such as a state, i.e. the stage of representative government, the organs of government are sufficiently developed such that the state possesses `an objective individuality' and is able to act for the common good. However, according to Hauriou, a state at this stage of development, although it may be recognised as a power in international law, `cannot allow any political liberty, that is, it cannot allow its citizens to participate in the government by election or any other way'. This is because `the nation' (by which Hauriou seems to mean the people of the nation) has not gone beyond the stage where it simply allows itself to be `passively led' by the government. As a result, it seems, then, that in Hauriou's view an `aristocratic' form of government is more appropriate at this point. The reason for preferring such a government at this stage seems to be that only the elite have thus far interiorised the directing idea of the nation, with the result that the masses can only give a passive assent.

However, as a group attains its mature stage, i.e. the stage of personification, its government is transformed from that of an elite minority to that of the majority. In Hauriou's theory, then, the stage of personification of the group thus seems to indicate and indeed to require the achievement of a certain level of democracy in the group. Thus, Hauriou insists on the participation of the citizens of the social in its government.

At this point, perhaps, we should recall that Hauriou's theory involves both a descriptive and a teleological aspect, and that Hauriou does not always distinguish clearly the two aspects. Thus, when Hauriou stated that at the stage of incorporation of a state it `cannot allow any political liberty', we can ask whether he was making a simple sociological observation, in which case there is nodoubt a great deal of historical evidence to support his theory, or whether he was offering a teleological observation, which would justify such a state of affairs. Let us note here that similar arguments have been often offered in recent times by governments in industrialising countries (e.g. in certain South East Asian countries) who argue that economic development precedes the development of democracy and political freedom. Nevertheless, this criticism, rather than invalidating Hauriou's theory simply highlights the importance or separating out its descriptive and teleological aspects, as well as pointing to the need to improve on certain parts of the theory. The most important point of Hauriou's theory here is that he indicates the possibility of arriving at some kind of objective measure of the state of institutional development of a social group.

2. A Dualistic Model of Government: Discursive and Intuitive

We can see from the above outline that Hauriou's theory is founded on a dualistic view of society based on interactions between the social elite of a group and the masses . In his interpretation of society as a projection of individual psychology onto the the social scale, Hauriou saw a parallel between:

(1) The role of the elite in society, which corresponds to the role of the human subconscious of the individual, and

(2) The role of the masses which corresponds in a similar fashion to that of the conscious element in an individual.

Thus, at the stage of personification of a social group, its government is based on two modes of functioning:

(1) Discursive government, based on the `deliberative power of the majority',i.e. of the masses, and which is embodied in the `moral person' of the group. It provides for `an internal political liberty: the participation of our basic psychical elements in this government'. This discursive aspect corresponds then to the conscious aspect of individual psychology. In this sense, the level of participation of the majority of society in its government matches the level of conscious articulationof the ideas of the majority of a social group.

(2) Intuitive government, which is the power of the `ability' and `intelligence' and which is characteristic of the `minority', i.e. of the elite. This intuitive aspect corresponds to the subconscious element in the individual. This is because at the social level, it is only the elite which has managed to articulate the directing ideas.

What seems to be important to Hauriou here is the dialectical relation that he seems to believe exists between these two modes of government, a bipolar dialectic between the elite and the mass. In his theory this relation between the discursive power of the majority and the intuitive power of the minority allows for and even calls for the creation of a series of checks and balances against the abuse of power.

It is necessary to remember here that Hauriou's analysis is meant to apply not just to the state or macro-level of a society, but also to the micro-level of social organisation, i.e. to each existing social group. Thus Hauriou's theory of the institution can also be characterised as a theory of relations.

In other words, Hauriou offers a much more sophisticated interpretation of how social consciousness is embodied in a social group than the comparatively simplistic theory of collective conscience offered by Durkheim, and rejected by Hauriou.

3. Duration and Continuity

Hauriou considered that one of the main tasks of his theory was to explain the `duration and continuity' of institutions, a task which, he says, required that one `explain the formation of institutions themselves' (Hauriou, 1925: 111). To answer this question, Hauriou returned to his distinction of the stages of incorporation and personification of a social group. According to Hauriou's analysis, `the manner in which the continuity of the action of the directing idea is obtained' is different in each stage.

At the stage of incorporation of a group, the continuity of the idea and its action is, according to Hauriou, `purely objective'. This is because, as noted above, there are no continuous manifestations of communion among all the members of the group at this stage, i.e. the necessary understanding is limited to the group's minority elite, with the majority or mass of each group, giving a mere passive assent at this stage. Larger scale manifestations of communion are limited to sporadic instances or `crises', such as may occur at the time of the creation of a social group. In the case of the formation of a state, Hauriou said that the stage of incorporation could in fact last several centuries, as in the case of the formation of the French Capetian kingdom. Moreover, at this stage,the governing power itself also lacks complete continuity. Thus, Hauriou noted that for the early Capetians there was no automatic devolution of power at the death of one king, and confirmation was required of the new king.

At the stage of personification, however, the directing idea passes to the subjective state within the institution, and manifestations of communion become continuous. A similar process occurs with respect to governing power, which becomes continuous in the sense that it can now anticipate and regulate situations which will arise in the future. As Hauriou said, power becomes more `elastic'.

As a result of these processes, there arise three advantages:

(1) The directing idea of the enterprise tends to express itself subjectively. Hauriou here gives the example of how the declarations of human rights in the USA and France in the 18th century passed so quickly to the subjective level.

(2) The subjective continuity of the institution allows the institution to assume obligations, e.g. to obtain credit.

(3) The subjectivity of the idea and the moral personality of the institution thus bring it into the domain of subjective responsibility, corresponding to the liberty of the institution or group.


The theory of the institution, Extracted from Stefan Gigacz, Law's Third Dimensions: International Associations and NGOs in the Global Legal Order, memoire presented for "Master's Course in Legal Theory", European Academy of Legal Theory, Katholieke Universiteit Brussel - Facultés Universités Saint-Louis, Bruxelles, 1996, 172p.