Organic Solidarity Due to the Division of Labor.

Restitutive sanction is the

type of penalty that corresponds to Organic Solidarity. It consists of a “simple return in

state”. This sanction is different from that of repressive which the object is the

offender’s suffering. Thus, offender is not punished to suffer but rather “he is sentenced

to comply with it”. In fact, court judges will only “speaks of law but says nothing of

punishment”. In the society, restitutive sanction form organs which are more and more

specialized such as consular tribunals, councils of arbitration and other forms. Instead

of being govern by penal law, imposition of sanction lies on the civil law exercised by

lawyers, magistrates and others.

Restitutive sanction is not anymore based from collective sanction, common

conscience, and retribution. This sanction is embodied within the “organ of its

representatives”. This means that sanction is not any more social punishment but a

“conciliator of private interests”. It shall be noted that law is still a social thing which

has a different object than the interest of the pleaders. The object of restitutive law is

the common conscience (individual and society relation) and between restricted, special

parties in society whom they bind (individual and specialized organ).

The relation, that link individual indirectly to the society, is either positive or

negative. A negative relation is “one which unites the thing to a person”. This is

negative in the sense that the relationship is not person to person, but a thing to

person. There are two kinds of rights emerge from this relation: the first is the “right of

property” and the second is the right of credit. Basically, social solidarity develops on

the foundation of those rules, real rights. But in the sense, “one can exercise a real
right by thinking one is alone in the world, without reference to other men”. In effect,

man will be more dependent to things. Thus, the solidarity that it created has no

existence of its own because the rules that corresponds to it does not have positive

social link.

On the other hand, positive relation is a “cooperation which derives, essentially,

from the division of labor. In explaining, Durkheim made use of an analogy of family

relationship and civil law. Civil law’s object is the determination of manner in which

familial function is distributed and what is ought to be in their mutual relations. This

means that civil law expresses the particular solidarity which unites the members of a

family in accordance with the division of domestic labor. In another case, division of

labor is manifested cooperation in contract-law. Contract is said to be the judicial

expression of cooperation because of the obligations it enforced to the parties. This in

turn gives rise to correlative or reciprocal obligations which expresses cooperation out

of common task. In general form, contract is found to be a symbol of exchange, while

exchange presupposes some division of labor as expressed in obligated tasks of both

parties.

In general, all other forms of law such as commercial code, procedural law,

administrative law and constitutional law determines normal relations, a relations to

each other, of person to person and this relations has diffused functioned to the

society. Weber, in tracing the link of solidarity to social function through law, made an

analogy of the nervous system of an organism, regulation of the nervous system (laws)
to the function of the body (division of labor) as a way to make them harmonized

(solidarity).

In conclusion, Durkheim recognizes only two types of positive solidarity: the first

is collective type, where society is an organized totality of beliefs and sentiment

common to all members of the group. The second is from the division of labor, “a

system of different, special functions which definite relations unite”.