1. The Directing Idea

For Hauriou, the `directing' idea of the institution is not to be confused with either the `end' of the group, or its `function'. Whereas the idea of a group is `interior', the end is `exterior'. By this distinction Hauriou seemed to want to emphasise the distinction between the directing idea as a process, and the end as a result of the group's activity. The idea of an institution is thus linked to the life of the group. With respect to the function of a group, this also must be distinguished from the notion of the idea. This is because functions can be too limited, e.g. where a company constituted to build and operate railways later wants to build a hotel. Thus, for Hauriou, the notion of idea allows for development or evolution within an institution.

Hauriou also associated the idea of an institution with its `object' in the sense that what was originally a subjective idea becomes gradually an `objective state in the subconscious'. In other words, the institutional idea takes on a life of its own, and will be appropriated and understood by each succeeding generation in its own way just as for example a play written by Racine is understood differently by 20th century audiences than by those of the 17th century. Moreover, this objective character of the institutional idea also expresses the fact that in Hauriou's view these ideas `exist beforehand in the vast world' like diamonds in a mine waiting to be discovered. The fact that they are found reflects the `interest' that such ideas have for a certain group, whose members can therefore also be considered as the `subjects' of this idea.

2. The Organised Power of Government

For Hauriou, the organised power of government in an institution was `a form of will' which exists for the realisation of the idea of the enterprise and is at its service. He rejected, therefore, the instrumentalisation of this power in the hands of those who exercise power within an institution. Hauriou said that the bases of this power could be reduced to two principles, namely:

(1) The separation of powers, `thanks to which governmental power is not just a simple force but a rightful power capable of creating law'.

These powers (in a modern state) can be divided into:

(a) The executive power, which involves the `intuitive competency of executory decision';

(b) The deliberative power, which involves the discursive competency of deliberation; and

(c) The power of suffrage, which involves the competency of assent.

(2) The representative regime, which requires that the governmental powerof an institution be subordinate to the idea of the enterprise. This requirement, even if it does not strictly require a democratic regime, nevertheless tends towards such a regime since democracy `seems to guarantee a community of outlook between the governors and the members of the body'. Constitutional mechanisms, therefore, must ensure the `ascendancy' of the directing idea over the governmental power. However, Hauriou insists also on a matching `voluntary submission of the governors' to the directing ideas of the group, just as military leaders submit to the direction of civilian rulers.

3. The Manifestations of Communion

What Hauriou called the `phenomenon of communion' enables the directing idea of a certain work to pass momentarily into the subjective state. Such phenomena are, according to Hauriou, most visible historically in certain movements such as the trade union movement of Europe at the end of the 19th century. On a smaller scale, it is this kind of phenomenon which leads to the foundation of any group.

Thus, `it is individuals who are moved by their contact with a common idea and who by a phenomenon of interpsychology, become aware of their common emotion'. The directing idea thus `passes momentarily into the subjective state in the thousands of minds that are united in it', resulting in a `movement of communion' (Hauriou, 1925: 107).

However, Hauriou rejected any idea of Durkheimian collective conscience, which he believed would result in reducing such a conscience to the level of average opinion. This led him to an apparently rather elitist conclusion, namely that the `superior minds' of the group must play the leading role in drawing conclusions for purposes of action by the group. Thus `communion in an idea includes an agreement of wills under the direction of a chief', which connotes not only intellectual assent, but also the will to act and the initial step forward that `engages the whole being in the common cause, i.e. in a `communion of action'.

Hauriou considered society as `a psychological work' in which there is reciprocal action between the human mind and certain objective ideas that form the bases of institutions. In a sense then, Hauriou argued that corporate personality is `a social creation made, to a great extent, in the image of the human personality' as a kind of a projection of that personality onto a larger scale.

Since Hauriou believed that the process by which this takes place is largely subconscious, then social institutions could reveal certain hidden characteristics of the human personality that `conscious introspection does not reveal'. In this sense, then, Hauriou seemed to anticipate somewhat the method of `archaeology of knowledge' made famous by Michel Foucault.


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.