Reading 4

TWO LAWS OF PENAL EVOLUTION

Edited and published with permission from: M.Traugott (ed.), Emile Durkheim on
Institutional Analysis, Chicago, University of Chicago Press, 1977, pp. 153–180.
Originally published as ‘Deux lois de l’évolution pénale’, L’Année sociologique 4 (1899–
1900), 65–95.

The variations through which punishment (la peine) has passed in the course of history
are of two kinds: quantitative and qualitative. The laws regarding each kind are, naturally,
different.

THE LAW OF QUANTITATIVE VARIATION

It can be formulated as follows: “The intensity of punishment is greater as societies

belong to a less advanced type (un type moins é1éve)—and as centralised power has
more absolute character.”
Let us first explain the meaning of these statements.
There is no great need to define the first. It is relatively easy to recognize whether a
social species is more or less advanced than another: one has only to see which is more
complex or, if equally complex, which is more organized. Moreover, this hierarchy of
social species does not imply that the succession of societies forms a unique and linear
series; on the contrary, it is certain that it is better represented as a tree with many more
or less divergent branches. But on this tree societies are placed higher or lower and are
found at a greater or lesser distance from the common trunk. It is only on the condition of
considering them in this way that it is possible to speak of a general evolution of
societies.
The second factor which we distinguished above should detain us longer. We say of
governmental power that it is absolute when it encounters in the other social functions
nothing which by its nature balances and efficaciously limits it. In point of fact, a
complete absence of all limitation is nowhere to be found; we can even say that it is
inconceivable. Tradition and religious belief serve as restraints to even the strongest
governments.[…]
This observation leads us to another which more directly concerns our subject: the fact
that the more or less absolute character of the government is not an inherent
characteristic of any given social type. If, in effect, it can as easily be found where
collective life is extremely simple as where it is extremely complex, it does not belong
more exclusively to lower societies than to others.[…]
This special form of political organization—givernmental absolutism—does not,
therefore, arise from the congenital constitution of the society, but from individual,
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transistory, and contingent conditions. This is why these two factors of penal evolution—
the nature of the social type and that of the governmental organ—must be carefully
distinguished. This is because, being independent, they act independently of one another,
sometimes even in opposite directions. For example, it happens that in passing from a
lower species to other, more advanced types, we do not see punishment decrease, as
could be expected, because at the same time the governmental organization neutralizes
the effects of social organization.[…]

THE LAW OF QUALITATIVE VARIATIONS

The law which we have just established relates exclusively to the magnitude or quantity
of punishments. That which we are now about to consider is related to their qualitative
modalities. It can be formulated as follows: Punishments consisting in privation of
freedom—and freedom alone—for lengths of time varying according to the gravity of the
crime, tend more and more to become the normal type of repression. Lower societies are
almost completely unacquainted with this kind of punishment.[…]
On first examination, it doubtless seems quite obvious that, from the day when prisons
became useful to societies, men had the idea of constructing them. However, in reality,
the existence of prisons assumes that certain conditions, without which they are not
possible, have been realized. Prisons imply the existence of public establishments,
sufficiently spacious, militarily occupied, arranged in such a way as to prevent
communications with the outside, and so on. Such arrangements are not improvised on
the spur of the moment; no traces of them exist in less advanced societies.[…]
But as the social horizon is extended, as collective life, instead of being dispersed into
a vast number of minor foci where it can manage only a meager existence, is
concentrated about a more restricted number of points, it simultaneously becomes more
intense and more continuous. Because it takes on greater importance, the dwellings of
those who are in charge are transformed. They are extended and are organized in view of
the more extensive and more permanent functions which are incumbent upon them. The
more the authority of those who live in them grows, the more those dwellings are
singularized and distinguished from the rest. They take on a grandiose air; they are
sheltered by higher walls and deeper moats in such a way as to denote visibly the line of
demarcation which thenceforth separates the holders of power and the mass of their
subordinates. At that point, the preconditions of the prison come into being. What leads
us to suppose that prisons originated in this way is that they often first appeared in the
shadow of the king’s palace or among the outbuildings of temples and similar
institutions.[…]
Thus, at the very moment when the establishment of a place of detention became
useful in consequence of the progressive disappearance of collective responsibility,
edifices which could be used for this purpose were being constructed. Prisons, it is true,
were as yet only preventive. But once constituted for this purpose, they quickly took on a
repressive nature, at least in part.
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EXPLICATION OF THE FIRST LAW

Since the penalty results from the crime and expresses the way in which it affects the
public conscience, we must seek the determining cause of the evolution of penal law in
the evolution of crime.
Without having to enter into the details of the proofs which justify this distinction, we
think that it will be conceded without difficulty that all acts reputed to be criminal by the
various known societies can be divided into two fundamental categories: some are
directed against collective things (whether ideal or material), of which the principal
examples are public authority and its representatives— mores, traditions, and religion—
the others offend only individuals (murders, thefts, violence, and frauds of all kinds).
These two forms of criminality are sufficiently distinct to be designated by different
words. The first could be called “religious criminality” because attacks against religion
are its most essential element and because crimes against traditions or heads of state
always have a more or less religious character. We might refer to the second category as
“human” or “individual criminality.” We also know that crimes of the first type comprise,
almost to the exclusion of all others, the penal law of lower societies, but that, on the
contrary, they regress to the extent that social evolution proceeds. Meanwhile, attacks
against the individual (la personne humaine) more and more occupy this entire area. For
primitive peoples, crime consists almost solely in not observing the practices of the cult,
in violating the ritual taboos, in deviating from the mores of ancestors, in disobeying
authority where it is strongly consolidated. On the other hand, for today’s European,
crime consists essentially in the disruption of some human interest.
Now, these two types of criminality differ profoundly because the collective
sentiments which they offend are not of the same nature. As a result, repression cannot be
the same for both.[…]
If we compare the present with the past, we find that we are not more tolerant of all
crimes indiscriminantly, but only of some of them; there are others, on the contrary,
toward which we show ourselves to be more severe. However, those for which we evince
an ever greater indulgence happen also to be those which provoke the most violent
repression. Inversely, those for which we reserve our severity evoke only moderate
punishments. Consequently, to the extent that the former cease to be treated as crimes and
are withdrawn from penal law to be replaced by the latter, a weakening of the average
penalty must necessarily occur. But this weakening can last only as long as does this
substitution. A time must come—it has nearly arrived—when the process will have to be
completed, when attacks against persons will fill the whole of criminal law, when even
what remains of the others will be considered to be dependent on this new form of
criminality. The movement of retreat will then stop. There is no reason to believe that
human criminality must, in its turn, regress in the same way as the punishments which
repress it. Instead, everything leads us to predict that it will develop further, that the list
of acts considered criminal will grow longer and that their criminal character will be
accentuated. Frauds and injustice which yesterday left the public consciousness
indifferent, today arouse its revulsion. And this sensitivity will only become more lively
with time. There is not a general tapering off of the entire repressive system; one
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particular system is giving way but is being replaced by another which, while less violent
and less harsh, still has its own severities and is in no way destined to an uninterrupted
decline.