EMILE DURKHEIM

UNIT 2
EMILE DURKHEIM:
SOCIOLOGICAL SCHOOL OF
JURISPRUDENC
Emile Durkheim, a French sociologist, is widely considered to be the father of sociology. While
clearly not a lawyer or a student of law, Durkheim wrote on legal issues ranging from criminal
process to the law of contracts. His contribution to sociological jurisprudence is undeniable. In
his various works, and particularly the book titled “Division of Labor in Society” he deals with
the issue of law in society.
DURKHEIM VIEW ON SOCIETY

Durkheim adopted an evolutionary approach in that he considered society to have developed

from a traditional to modern society through the development and expansion of the division of
labour. He compared society to an organism, with different parts that functioned to ensure the
smooth and orderly operation and evolution of society. He is sometimes considered a structural
functionalist in that he regarded society as composed of structures that functioned together – in
constructing such an approach, he distinguished structure and function. While he considered
society to be composed of individuals, society is not just the sum of individuals and their
behaviours, actions, and thoughts. Rather, society has a structure and existence of its own,
apart from the individuals in it. Further, society and its structures influence, constrain, and even
coerce individuals in it – through norms, social facts, common sentiments, and social
currents. While all of these were developed from earlier or current human action, they stand
apart from the individual, form themselves into institutions and structures, and affect the
individual.
DURKHEIM’S CONCEPT OF
SOCIAL SOLIDARITY AND
COHESION
Durkheim was especially concerned with the issue of social order, how does modern society hold together
given that society is composed of many individuals, each acting in an individual and autonomous manner,
with separate, distinct, and different interests. His first book, The Division of Labour in Society, was an
exploration and explanation of these issues, and he finds the answer in the concept of social solidarity,
common consciousness, systems of common morality, and forms of law. He asserts that law was the standard
by which any society could be evaluated since “law reproduces the principal forms of social solidarity.
According to Durkheim, social solidarity refers to the system of social bonds which link individuals directly to
the wider society. He also used the term solidarity to identify a system of social relations linking individuals to
each other and to society as a whole. Without these social links, individuals would be separate and unrelated.
Durkheim opines that social solidarity and cohesion describes the level of intensity that exists in the social
attachments linking individuals to the collective structure of society. He thought that social cohesion acts as
‘social cement’ which creates attachments between individuals in a society and these attachments exercise an
emotional hold over them by making their attachment more intense and cohesive. Social solidarity and social
cohesion manifest themselves in two very broad and distinct ways and these two broad systems of social
solidarity are ‘mechanical solidarity’ and ‘organic solidarity’.
TWO TYPES OF SOLIDARITY
Mechanical solidarity: According to Durkheim, mechanical solidarity prevails in small scale
homogeneous societies. Durkheim assumes that most laws in such societies would be of a penal and
repressive nature since the entire society would take an interest in criminal activity and would seek to
suppress and deter it. In short, the focus of law in societies that form mechanical solidarity is more
on criminal law rather than civil law and is more concerned with punishment and suppressing anti-
social activities. In other words, it is not very complex society, but rather one based on shared
sentiments and responsibilities.
Organic solidarity: Durkheim states the organic solidarity is found in more heterogeneous and
differential societies where there is a greater division of labor as well as greater differences between
individuals. This more pronounced division of labor means that people advance/are positioned in
society based on merit. Moreover, in such societies there is less of a common societal reaction to
crime as the people come from many different backgrounds and so law becomes less repressive and
more restitutive. In other words, societies characterized by organic solidarity are more secular and
individualistic due to the specialization of people in their respective tasks. Put simply, organic
solidarity is more complex with a higher division of labour.
According to Durkheim, the societies move from mechanical to organic solidarity through the
division of labour. As people began to move into cities and physical density mounted,
competition for resources began to grow. Like in any competition, some people won and got to
keep their jobs, whereas others lost and were forced to specialize. As a consequence, the
division of labour generated all sorts of interdependencies between people which is a key
element of organic solidarity. Thus, following the above discussion, he argued that societies
characterized by organic solidarity generated social solidarity not through sameness, but
through interdependence.
ROLE OF LAW IN PRESERVING
SOCIAL SOLIDARITY
Durkheim believed that there was a fundamental relationship between judicial rules and social
solidarity. The legal rules and the system of punishment reflect the system of social solidarity
and social cohesion. We will classify the different types of law in order to discover the different
corresponding types of social solidarity.
For Durkheim, the laws of a society are the most visible symbol of social solidarity and the
organization of social life in its most precise and stable form.
Law plays a part in a society that is analogous to the nervous system in organisms. The nervous
system regulates various bodily functions so they work together in harmony. Likewise, the legal
system regulates all parts of society so that they work together effectively.
According to him, two types of law are present in human societies: repressive law (moral) and
restitutive law (organic).
REPRESSIVE LAW AND PENAL
LAW
Repressive law is related to the center of common consciousness and everyone participates in
judging and punishing the perpetrator. The severity of a crime is not measured necessarily by
the damage incurred to an individual victim, but rather gauged as the damage caused to the
society or social order as a whole. Punishments for crimes against the collective are typically
harsh. Repressive law, says Durkheim, is practiced in mechanical forms of society.
Penal law imposes harm and suffering upon the offender. It does this in either of the two ways:
first, by reducing the social honour of the offender and thus inflicting some form of loss or
damage; second, by depriving the offender of either their freedom or their life. Penal law
corresponds to societies whose solidarity is mechanical and whose social cohesion is intense.
Punishment is severe bringing physical harm to the offender and applying sanctions against
offenders which are ‘repressive’. It is the essential function of the repressive sanctions to
maintain social cohesion by setting examples by means of punishment which act to preserve and
reinforce the collective rules and sacred beliefs and by repairing the damage done to the
collective conscience as a whole as a sequel to the offence.
RESTITUTIVE LAW
The second type of law is restitutive law, which does focus on the victim when there is a crime since there
are no commonly shared beliefs about what damages society. Restitutive law corresponds to the organic
state of society and is made possible by more specialized bodies of society such as courts and lawyers.
In contrast to the repressive sanctions and penal laws, the system of contract law arises only in industrial
societies whose social cohesion is organic. Contract law refers to the system of modern law in advanced
societies. Under this system of judicial rules, sanctions are restitutive rather than repressive. Industrial
society leads to the development of various social institutions which become increasingly specialized as
they replace the institutions of the tribal segment. These social institutions begin to function through
specialized agencies such as the courts, arbitration council, tribunals and administrative bodies. The
authority of the legal rules is exercised through specific functionaries such as judges, magistrates and
lawyers. Restitutive sanctions have the job of restoring things to the way they were before the offence took
place. The intension is to undertake compensation and restore the damage created by the offense rather
than to inflict suffering upon the offender. The job of contract law is to develop rules which bind individuals
to each other by regulating contractual obligations. According to Durkheim, contractual laws do not arouse
collective social sentiments and thus do not contribute directly to the overall cohesion of the society.
FUNCTIONALISM AND THE
ESSENTIAL NATURE OF DEFIANCE
Sociologists who follow the functionalist approach are concerned with how the different
elements of a society contribute to the whole. They view deviance as a key component of a
functioning society. Social disorganization theory, strain theory, and cultural deviance theory
represent three functionalist perspectives on deviance in society. Émile Durkheim (1858-1917)
believed that deviance is a necessary part of a successful society. One way deviance is
functional, he argued, is that it challenges people’s present views (1893). For instance, when
African American students across the United States participated in “sit-in” protests during the
civil rights movement, they challenged society’s notions of segregation. Moreover, Durkheim
noted, when deviance is punished, it reaffirms currently held social norms, which also
contributes to society (1893). Seeing a student given a detention for skipping class reminds
other high schoolers that playing hooky isn’t allowed and that they, too, could get a detention.
THEORY OF CRIMINALITY
ests upon his broad' approach to anti-social behavior. Scholars before and after him have
attempted to find the "cause" for crime in external factors as in natural forces, climate,
economic conditions, density of population or certain ecological areas. In contrast to these
Durkheim maintained that if an explanation is to be found "it is necessary to look for an
explanation" in the very nature of society. From this it follows that the "individual is rather a
product than an author of society". In other words the individual is but a small image of the
world in which he lives. For Durkheim crime is immanent in society and results from social
interaction.
THE NORMALITY OF CRIME
To present day social scientists it may seem strange that Durkheim should maintain that
criminality is a "Normal" factor rather than a pathological one. He indicates that crime is found
in all societies, "Crime is normal because a society exempt from it is utterly impossible". The
"funda mental conditions of social organization-logically imply it." Crime is not due to any
imperfection of human nature or society any more than birth or death may be considered
abnormal or pathological. It is all a part of the totality of society. "A society exempt from it
(crime) would necessitate a standardization of the moral concepts of all individuals which is
neither possible or desirable. In reality crime can disappear only when the "collective
sentiments" in a community reach such an intensity that all persons concur in the same
common values and when "the horror of bloodshed becomes widespread and deep in those
social strata from much murderers are recruited"
Durkheim maintains that crime is not only normal for society but that is necessary. Without
crime there could be no evolution in law. If society is to progress each person must be able to
express himself. "The opportunity for the genius to carry out his work affords the criminal his
originality at a lower level". "Aside from this indirect utility, it happens that crime itself plays a
useful role". "According to Athenian Law, Socrates was a criminal, and his condemnation was no
more than just. However, his crime, namely, the independence of his thought, rendered a
service not only to humanity but to his country."'" Crime, therefore, "must no longer be
conceived as an evil that cannot be too much repressed". This however, does not lead Durkheim
to condone crime or "to present an apology for crime". When he stated that crime is merely a
normal element he viewed the whole of society as reality.
There are three main aspects to Durkheim’s theory of crime:
A limited amount of crime is inevitable and even necessary
Crime has positive functions -A certain amount of crime contributes to the well-being of a
society.
On the other hand, too much crime is bad for society and can help bring about its collapse,
hence institutions of social control are necessary to keep the amount of crime in check. Refer
here to Durkheim’s Theory of Suicide.
Durkheim argued that crime is an inevitable and normal aspect of social life. He pointed out that
crime is inevitable in all societies, and that the crime rate was in fact higher in more advanced,
industrial societies.
Durkheim theorised crime was inevitable because not every member of society can be equally
committed to the collective sentiments (the shared values and moral beliefs of society). Since
individuals are exposed to different influences and circumstances, it was ‘impossible for them to
be all alike’ and hence some people would inevitably break the law.
Durkheim also theorised that deviance would still exist even in a ‘society of saints’ populated by
‘perfect’ individuals. The general standards of behaviour would be so high that the slightest slip
would be regarded as a serious offence. Thus the individual who simply showed bad taste, or
was merely impolite, would attract strong disapproval.
A good example of this are the laws surrounding grass cutting in many towns in America. These
laws stipulate a maximum grass height, typically of eight inches. If the grass grows above this,
the local council may fine them, and they can even go to jail. Some
people have been fined thousands of dollars for letting their lawns grow too long.
Crime Performs Positive Functions

Durkheim went a step further and argued that a certain amount of crime was functional for society. He argued that
crime performed THREE positive functions for societies…
Social regulation- Crime performs the function of social regulation by reaffirming the boundaries of acceptable
behaviour. When a crime occurs and and individuals are punished it becomes clear to the rest of society that the
particular action concerned is unacceptable. In contemporary society newspapers also help to perform the publicity
function, with their often-lurid accounts of criminal acts. In effect, the courts and the media are ‘broadcasting’ the
boundaries of acceptable behaviour, warning others not to breach the walls of the law (and therefore society)
Social integration-A second function of crime is to strengthen social cohesion. For example, when particularly
horrific crimes have been committed the whole community joins together in outrage and the sense of belonging to
a community is therefore strengthened.

Social change-A further action performed by the criminals is to provide a constant test of the boundaries of
permitted action. When the law is clearly out of step with the feelings and values of the majority, legal reform is
necessary. Criminals therefore, perform a crucial service in helping the law to reflect the wishes of the population
and legitimising social change.
Durkheim further argued deviance was necessary for social change to occur because all social
change began with some form of deviance. In order for changes to occur, yesterday’s deviance
becomes today’s norm.
Durkheim argued that crime only became dysfunctional when there was too much or too little
of it – too much and social order would break down, too little and there would not be sufficient
capacity for positive social change.
EVALUATION
Durkheim talks about crime in very general terms. He theorises that ‘crime’ is necessary and even functional but fails to distinguish
between different types of crime. It could be that some crimes may be so harmful that they will always be dysfunctional rather
than functional.
Functionalists suggest that the criminal justice system benefits everyone in society by punishing criminals and reinforcing the
acceptable boundaries of behaviour. However, Marxist and Feminist analysis of crime demonstrates that not all criminals are
punished equally and thus crime and punishment benefit the powerful for than the powerless
Interactionists would suggest that whether or not a crime is functional cannot be determined objectively; surely it depends on an
individual’s relationship to the crime.
Functionalists assume that society has universal norms and values that are reinforced by certain crimes being punished in public.
Postmodernists argue society is so diverse, there is no such thing as ‘normal’.
The Functionalist theory of crime is teleological. It operates a reverse logic by turning effects into causes. I.e. in reality the cause of
crime is the dysfunctional system. However in functionalist theory crime becomes the necessary cause which makes a system
functional. This really makes no sense!
CRIMINALITY
Durkheim emphasized that crime is not just an individual pathology but a social phenomenon with deep-
rooted causes in the structure and dynamics of society. He argued that understanding crime requires
analyzing its social context, including the moral values, norms, and social institutions that shape
individuals' behavior.

While Durkheim's conceptualization of criminality may not neatly align with modern typologies
of crime, his sociological perspective laid the groundwork for understanding crime as a complex
and multifaceted phenomenon shaped by social forces. His emphasis on the role of social
integration, regulation, and collective consciousness in shaping criminal behavior continues to
influence sociological theories of crime and deviance.
While he didn't categorize criminality into distinct types in the same way as some modern
criminologists might, Durkheim's analysis provides insights into different forms of criminal
behavior and their social context. Here are some key concepts related to criminality as per
Durkheim are dealt in next slide:
TYPES OF CRIME
Normal vs. Pathological Crime:
◦ Durkheim distinguished between normal and pathological forms of crime. Normal crime refers to acts that are relatively
common and have a limited impact on society's moral fabric. Pathological crime, on the other hand, represents a more
serious deviation from societal norms and poses a threat to social cohesion.

Egoistic and Altruistic Crime:

◦ Durkheim discussed egoistic and altruistic forms of crime in his work on suicide. Egoistic crime arises from individuals'
detachment from social bonds and lack of integration into society. Altruistic crime, on the other hand, occurs when
individuals are overly integrated into society to the point where they prioritize the collective interest over individual rights.

Anomic Crime:
◦ Anomie, a concept Durkheim explored extensively, refers to a state of normlessness or moral confusion in society, often
resulting from rapid social change or upheaval. Anomic crime occurs when individuals feel disconnected from traditional
norms and values, leading to behaviors that violate social expectations.

Fatalistic Crime:
◦ While Durkheim focused more on anomie, he also briefly discussed fatalistic crime, which arises from excessive regulation
and control in society. In contexts where individuals feel oppressed or constrained by oppressive social structures, they may
engage in fatalistic crime as a form of rebellion or escape.