Durkheim on Law and

Social Solidarity
 Law and the evolution of
Society
• Durkheim conceived of law as the most important
observable manifestation of the collective
consciousness.
• It is the visible symbol of social solidarity.
• He classified law not on the basis of Juridical conception
but Sociologically on the basis of the type of sanctions
that are applied to the violation of legal rules.
• Law serves as an indicator of social solidarity and
specifically in the development of mechanical to organic
solidarity which can be observed in the evolution of law
from a repressive to restitutive law.
 Repressive Law
• Repressive law represents the strong unity that
exists in society among the members of a strongly
cohesive and simple unit such as clan.
• It is Religious in nature.
• It is based on general beliefs.
• Infraction against the rules of repressive legal
system are severely punished because they
threaten the existence of collectivity as a whole.
• Removal from society through banishment or
death is typical form of punishment in mechanical
society.
 Restitutive Law
• In organic society, there is differentiation of
restitutive and repressive laws.
• Legal regulations are more abstract and general
so they can apply universally to all individual
while not levelling the differences that exist
among them.
• Law is secularized and highly codified.
• Sanctions that are applied to violation of
restitutive laws are oriented at a restoration of
social relations among individuals.
 Restitutive Law
• In organic solidarity, criminal law still
serves repressive functions but growth of
civil law indicates most clearly the rise of
restitutive law.
• Relevance of restitutive form of law that
accompanies the development of the
division of labour in economic life does not
under normal conditions lead to social
problems or disorder.
 Restitutive Law
• Against Marx, Durkheim contends that
essential function of division of labour is
precisely to integerate society.
• Thus to achieve solidarity in organic
society, the division of labour has to be
accompanied by certain rules that
regulates cooperation among the various
specialized functions and roles.
 Law and Rights
• In his lectures, Durkheim devoted special attention
to the role of the state in the creation of rights.
• In De La Division du Travail Social, Durkheim turns
to the study of moral and juridical facts as the
observable expression of morals and rights.
• He says, Homicide and theft are spremely immoral
acts, graver than professional and civic morals.
• It is so because the rules concerning crimes against
the person and property are so general that they
extend beyond the boundaries of any particular
society.
 Law and Rights
• Historically, this was not the case, as crimes against the
group as a whole, such as religious crimes were
traditionally punished more severely.
• However, in organic society, crimes against the person
and against personal property arose the greatest
resentment and receive the harshest sanction because
they violate a morality that places the qualities of the
individual above all else.
• Primarily, Durkheim engaged in criminological analysis of
murder rates, but his discussion on the nature of
property rights forms the basis of a sociological theory of
contract and law.
 Law and Rights
• According to Durkheim, the nature of property has
historically changed as have the rights that were
attached to it.
• Legally, the rights over property have been divided
among three kinds:
- ius utendi (right to use).
- ius fruendi (right to enjoy).
- ius abutendi (right to use up).
- Right to use refers to the right to make use of things,
such as right to live in a rented property and right to walk
in a public park.
 Law and Rights
• Right to enjoy is the right to product of the property, such
as rights to the rent on a house and interest on a loan.
• Neither right includes a right to transform the property to
which the right is attached.
• In the right to use up, however, the property may be
transformed or even destroyed, albeit under specified
conditions.
• Durkheim argues that this legal typology cannot lead to a
specification of the essence of property, for what is distinct
about (private) property is that the powers that are
attached to it, no matter how broad or limited, are always
exclusive to the owner.
 Law and Rights
• Private property is the right to possession that is exclusive, at
least towards other individuals, as in some circumstances the
state may still claim certain rights.
- According to Durkheim, What is the basis for private property
right?
- To exist, private property must be respected.
- Like his theory on the evolution of religion, he says that, it is
not the thing that is owned nor the sacred or divine blessing it
has received, but society as such that endows property with
an exclusive right.
- This can be observed from the study of contract as primary
means (besides inheritance) through which property can be
transferred.
 Law and Rights
• Innovations in law were required as contract evolved
from so-called real contracts to consensual contracts of
agreement.
• Real contracts are the contracts whereby, the contract
takes place only when something is actually transferred.
• Consensual contract is the agreement to which an oath
or invocation of a divine being is attached.
• From the real contract by solemn ritual evolved the
purely consensual contract whereby the declaration of
the will alone is sufficient ground for the binding nature of
the agreement.
 Law and Rights
• The power of contract is then completely mental.
• Durkheim says, “by the very fact that it is
consensual, the contract is covered by sanction”.
• The only condition that is attached to consent is
that it must be freely given.
• In the final stage of development, the contract also
has to be just in terms of the objective
consequences of the contract.
• To be just, the contract may be objectively
equitable.
 Law and Punishment
• Durkheim conducted a study concerning certain
quantitative and qualitative changes in punishment.
• These changes have taken place in the course of the
transition from primitive to modern society.
• He gave two thesis on the evolution of punishment from
MS to OS.
• The first one is, the punishment is less intense in more
developed societies in which the central power is not
absolutist.
• The repressive laws in MS regulates social relations
unilaterally in a manner that accords all power and right to
one party.
 Law and Punishment
• Prototypical is the master-slave relation.
• The justification of such laws is typical religious in
nature and regulations are sanctioned on a
supernatural basis.
• Punishment is intense and includes corporal
punishments, such as flogging of slaves.
• Symbolic of the crime that was committed, such as
chopping off of hands in the case of theft.
• Capital punishment exists in the form of public torture
practices whereby the death of offender is a final but
almost incidental outcome.
 Law and Punishment
• Durkheim recognises that modern society can still be
absolutist, as in the case of autocratic monarchies and
dictatorships, while being modern in other respects such
as economic realm.
• In the case of contemporary absolutist societies,
punishment can remain harsh and involve such method
as public executions.
• Durkheim considers the case of absolutist modern
societies not paradoxical to his theory on transition from
mechanical to organic societies, because an absolute
regime is pathological and not a normal development.
 Law and Punishment
• The intense punishments are s not fundamental to the
nature of modern society.
• Under normal conditions of socio-historical development,
modern societies are democratic and punishment is less
intense.
• The reason is that the laws in democratic organic societies
regulate relationships in bilateral terms as a contract
among two or more parties, all of whom are considered
equal before the law.
• The rules of such legal system are also secular and
sanctioned in terms of inner-worldly relations.
 Law and Punishment
• Any offense is an offense against another human
and does not arouse the same indignation as a
violation against religious laws.
• For his second thesis on the evolution of
punishment, Durkheim again relies on the distinction
between MS and OS to argue that punishment in
modern society becomes typically a deprivation of
liberty.
• In other words, in organic societies, the prison
system becomes the dominant form of punishment.
 Law and Punishment
• The reason is that the prison provides not only
an individualised form of punishment but is also
purposively oriented at reintegrating the
individual back into society and restoring social
relations.
• In MS, conversely, imprisonment could not fulfill
any such need since violations of law were
conceived as threatening to the collectivity as a
whole and could therefore not tolerate any
integration.
 Criticism- law
• Durkheim’s major criticism is the unilinear development
that he has described from repressive to restitutive law.
• Robert Merton argues that Durkheim relied on deficient
ethnographic data and offered no basis for the association
he sketched between types of law and social solidarity.
• Merton suggests that research from numerous field studies
has demonstrated that primitive societies, marked by a low
degree of division of labour, possess restitutive law which
Durkheim reserved for organic societies.
• Likewise, advanced societies also reveal important
elements of strong communal interest.
 Criticism- law
• Richard Schwartz and James Miller also support the
Merton’s criticism.
• They based their information on the basis of the study
fifty-one societies and focussed specifically on three
aspects of legal development :
- Counsel: the use of non-kin advocates in the settlement
of the disputes.
- Mediation: the use of a non-kin third party intervening in
dispute settlement and
- Police: conceived as specialized armed force organised
to enforce laws.
 Criticism- law
• The finding of the study indicate that the function of
police is associated with social development, contrary to
Durkheim’s theory.
• The reason for deficiency in Durkheim’s thought may be
that Durkheim employed different criteria in penal and
non-penal legal systems.
• Durkheim says that for the existence of repressive law,
relatively little organisation was needed, whereas
restitutive law was said to exist only where an elaborate
system of magistrates, lawyers, and tribunals has
developed.
 Criticism- law
• Thus, Schwartz and Miller argue, Durkheim ensured
proof of his theory, not on the basis of fact, but as a
result of conceptual ambiguity.
• An evolution from repressive to restitutive law does not
appear to be associated with the division of labour.
• Howard Wimberley conducted a comparative study of
legal development.
• The study showed the relevance of the influence of the
strength of a society’s authority system, a political
variable which Durkheim did not consider in his original
work of division of labour.
 Criticism- law
• Upendra Baxi suggests that Durkheim’s work can be refined.
• He says that the absence of police, as it was defined and
measured in schwartz and Miller’s study might still imply that
other system of enforcement exists in the considered
societies.
• The very creation, application and authoritative nature of
decision making processes themselves may fulfill
enforcement functions.
• As to the presence of restitutive law in simple societies, Baxi
argues that Durkheim did not argue that restitutive law does
not exist in society with a low degree of division of labour, but
that it there holds a lesser position.
 Criticism- law
• Some other scholars have likewise argued that the
actual development of law is the reverse of Durkheim’s
theory.
• Anthropological studies show that primitive societies
differentiate between religious and secular laws and also
exhibit legal system that contains reciprocal obligations.
• Likewise, comparative and historical analysis reveal that
modern legal systems contain many repressive aspects,
not only in the traditional areas of criminal law but aso in
areas concerning private behaviour and religious ethics
where a repressive logic has infiltrated.
 Criticism- Law and punishment
• Durkheim’s work on law and punishment has also been
scrutinised.
• Steven Spitzer conducted a study of forty-eight societies.
• He finds that contrary to Durkheim’s theory, punitive intensity in
inversely related to societal complexities, although political
absolutism is seen to vary with punishment in the direction
Durkheim specified.
• Collective definitions of deviance do not disappear as societies
become more complex, but, affirming Durkheim’s view, offenses
against collective objects are punished more severely.
• This association holds for both mechanical and organic societies.
 Criticism- Law and punishment
• Against Durkheim, Simple societies are more likely
to punish individual offenses more severely, while
organic societies tend to reserve harsh punishments
for crime against the collectivity.
• Finally, while Durkheim rightly observed that the
deprivation of liberty in the form of prison has
become the most applied form of punishment in
modern societies, he neglected that other form of
exclusion besides the prison, such as banishment
are common to primitive societies.