Law as an Index of Social Solidarity - Essay Example

Criminology [The name of the writer appears here] [The name of institution appears here] It is Durkheim’s use of law and punishment as indicators of societies approximating to his models that constitutes perhaps the most original sociological contribution of The Division of Labour. Examination of systems of crime and punishment serves several purposes in his sociological analysis. It’s most important purpose is to provide an empirical indicator of the nature and condition of various levels of social organization and culture in a society, in keeping with his general sociological model. It also serves the polemical purpose of combating moral philosophers who insisted that there were absolute moral principles, from which emanated all laws and morals in different societies, and at the same time it combated the Utilitarians’ assumption that moral behavior was the result of individuals making agreements that would maximize their happiness. Durkheim aimed to show that there was no such thing as an intrinsically criminal act. What was defined as criminal depended completely on the prevailing sentiments and beliefs in each society. This follows naturally from his initial definition of a crime: “an act is criminal when it offends strong and defined states of the collective conscience”. There was no single formula that would allow us to predict in advance what would be a crime; it would depend completely on the collective conscience at any time. (Émile Durkheim, 1957, pp 90-98) Law and the penal system provided an empirical indicator of more obscure and less easily observed social phenomena at other levels of the social system, such as morals and currents of public opinion. In simpler societies, these more impenetrable levels were dominated by collective beliefs and sentiments of a religious nature, and so the law was in large part religious law. Infractions were immediately, passionately, and severely punished, because they were a threat to the basic solidarity of the society, which was based on sameness of the mentalities of members, whose minds were largely infused with the collective conscience. The function of the law was to repress deviance, and this repressive law reserved its most severe sanctions for offences against religious prescriptions, because these hit at the core of the collective conscience. According to Durkheim, the evidence showed that this relationship was so well established in primitive societies that they did not bother to spell out the details of punishments for such serious offences. Where records existed of punishments inflicted, as in the Old Testament, they showed that religious offences were the most seriously punished. Offences that modern societies consider grave, such as murder, were often less severely punished. Another characteristic of repressive law was that, although some of the sanctions may be specified, the moral beliefs or justifications were not. This was because everyone knew them, and there was no need for formalization. For example, the homicide law did not commend respect for life, but simply specified the punishment. Durkheim also rejected any explanations of punishment in terms of its deterrent value. If that had been the case, punishments would not be graded according to the seriousness of the crimes but according to the strength of motivation to commit them. The function of repressive sanctions was to reaffirm solidarity in society by taking vengeance on the offender. Durkheim then shocked his more complacent readers by asserting that this is still the case in modern societies as far as repressive sanctions, or the criminal law, is concerned. The difference is that “it now produces its effects with a much greater understanding of what it does”. But despite this greater consciousness of cause and effects in the modern penal system, “the internal structure of phenomena remains the same, whether they be conscious of it or not”. His conclusion is that “the essential elements of punishment are the same as of old. And in truth, punishment has remained, at least in part, a work of vengeance” (Émile Durkheim, 1957, pp 90-98) Durkheim’s explanation of penal systems is functionalist and structuralist. Punishment serves the “unconscious” (or “latent”) function of reaffirming elements of the collective conscience and so maintaining social solidarity. The increasingly more conscious, or intended, functions of penal policies, such as policies of correction and deterrence, were still only secondary in modern societies. This could be seen from the fact that penalties were graded according to the gravity of the offence, which meant the extent to which it offended the collective conscience, not according to the proven success of such penalties in reforming or deterring offenders. The more fundamental causes of penal codes were the functional requirements of deeper cultural structures, such as beliefs and sentiments. Penal codes derived from these deeper sentiments and the functioning of these codes, reaffirmed and revitalized the sentiments, which provided the social solidarity based on the binding nature of the collective conscience. The difference between law and punishment in primitive societies and in more complex societies was that the scope and character of the collective conscience had changed. Mechanical solidarity based on resemblance had decreased as the division of labour increased. Law and punishment provided an external index of the change. There was still some criminal law which, in its repressive sanctions, functioned to revitalize and reaffirm the collective conscience when it was offended directly, or when it was offended indirectly by actions against its representative organs, the State institutions, such as government agencies and regulations, or the police. Otherwise, law and punishment were concerned with restoring relations between individuals, or contractual parties, to the state in which they had existed before the act which upset them. In societies with an advanced division of labour there was less resemblance and more differences based on specialization of functions. Social solidarity depended on cooperation between specialized functions and their agents, and restitutive sanctions and civil law reflected these structural realities. The specialization of functions was most obviously apparent in commercial legal codes, which regulated business contracts. But restitutive law also included procedural law, administrative law, constitutional law, and domestic law, all of which were concerned with maintaining or restoring cooperative relations. Thus Durkheim was one of the intellectuals who opposed the dramatic and harsh punishment of Dreyfus, and he published two articles intervening in the affair. These used the case to illustrate and elaborate upon his theory of punishment and communication. The two essays associated a lenient modern punishment with abstract notions of universal human rights and ideals of tolerance, and hence depicted the ordeal inflicted upon Dreyfus as archaic, premodern and passé. Ultimately, Durkheim's theory obscured the contested relations between modern punishment, nation and communication. Durkheim stated that pre-industrial societies had been composed of small groups, in which solidarity was attained through the sharing of an all encompassing set of norms and values. The cohesion of these groups was based on the similarity and likeness of the individuals within them. Within these societies of 'mechanical solidarity', reactions to nonconformity had been harsh. Durkheim characterized the communication of hostile, angered sentiments against criminals, and what he called 'the passion of punishment', as features of the old societies of mechanical solidarity. In The Division of Labour in Society he depicted punishment in those societies as an intense collective phenomenon driven by irrational forces. Its practices were seen simply as rituals expressing the furious moral outrage of the group against those who had violated its sacred moral order. In response all 'healthy consciences' came together to reaffirm powerfully the shared beliefs. This ireful public wrath was depicted by him as the expression of dutiful moral outrage. Durkheim equated mechanical solidarity with the communication of hostile sentiments and harsh punishment, which condemned the wrongdoer and marked him or her as an outsider to be cast aside. According to him, the values suited to industrial societies constituted a 'religion of humanity' focused on the civic values of individual dignity, reason and tolerance. In the incendiary climate of the Third Republic, he appealed for a new kind of amour patrie, resting in the fundamentally sacred character of the individual. Durkheim condemned physical punishment as a degrading affront to the dignity and sacredness of humanity. He declared his opposition to oppressive appeals to punishment, seeing these as distractions from the urgent need for fundamental reforms (Miller 1996:269). The organic solidarity of advanced societies was associated by Durkheim with restitutive law, which acted to restore the status quo. However, as Cotterell (1999) notes, Durkheim readily recognized social complexity and differentiation in considering the conditions of organic solidarity and restitutive law, but refused to do so in considering repressive law and punishment. The result is that in Durkheim's work the very idea of punishment is tied to the concept of a homogeneous, all-embracing collective consciousness. Durkheim's thesis on punishment, communication and solidarity was further outlined in 'Two Laws of Penal Evolution'. In this essay, he portrayed the replacement of brutal bodily punishment by imprisonment as a sign that collective values increasingly hallowed human dignity, bringing changing sensibilities towards physical punishments. Durkheim reiterated the tenet that penal severity declines with increasing social differentiation. He argued that protection/vindication of the victim via harsh punishment also violated the sacred humanity of the criminal, a problem managed by a moderation in the severity of punishment. He wrote that in modern advanced societies with collective values centered on the sanctity of the individual, the distance between the offender and the offended is reduced, 'they are more nearly on the same level' (Durkheim 1901/1992). This situation pertained all the more, he claimed, to the extent that the crime victim offers himself in the guise of a particular individuality, in all respects identical to that of the transgressor. He hence portrayed modern punishment as, that calmer and more reflective emotion provoked by offences which take place between equals. Durkheim added that penal severity varies not only with changing sensibilities, but also with shifts in political organization. Specifically, he argued that instances in which the trend towards milder punishment was moderated or reversed coincided with times in which central power was absolute. He wrote that centralized and absolute power is not counter-balanced or limited by other social functions and hence is subject to no restraints. In such a society legal relations are not bilateral and reciprocal and the centralized absolute power enjoys a monopoly over rights, exercising what Durkheim terms 'dominance' over the rest of society. Durkheim called the periods of penal severity that he associated with absolutism of power 'perturbations'. His association of severe punishment during modernity with absolutism involved no recognition of the complex relations between the democratic state and populist engagement in the spectacle of punishment. Furthermore, his argument about political organization and the severity of punishment took no account of the politics of assimilation central to his notion of organic solidarity. His continued insistence upon a correlation between the move from primitive to advanced societies with the shift from severe to lenient penalties involved a number of problematic arguments about assimilation. He asserted that in modern societies the distance between the offender and the offended is reduced, as each appears in his individuality. (Durkheim, E, 1983) However, this claim wholly disregarded the immersion of the penal practices of his day within a culture of the penal marking of essentialized foreigners. In terms of the Dreyfus case, the mediated spectacle of penalty as armed justice figured the Jew as a dangerous alien, and repudiated the enemy so marked from within the body of the nation. Durkheim's writings on the affair espoused a similar position to the group at La Revue Blanche, a journal which became a leading centre dreyfusard. This group were assimilated and non-practicing Jewish intellectuals, anxious to demonstrate that their support for Dreyfus was based not on religious solidarity but on secular values and beliefs linked to the defence of the Republic. Durkheim was active in the Ligue pour la Défense des Droits de l'Homme, acting as secretary to its Bordeaux branch. Both Dreyfus and Durkheim rejected religious traditionalism and orthodoxy in favour of faith in a secular and all-inclusive society. Durkheim came from a rabbinical family, but after arriving in Paris, he put his Judaism aside. The surviving documents seem to support Ivan Strenski's assertion that Durkheim 'actively tried to dissolve his sense of ethnic and religious identity in French national identity'. In addition to his involvement with the Drefyus affair, questions of ethnic and religious identification and conflict were a matter of personal significance to Durkheim. He was the subject of anti-Semitic hostilities in connection with his promotion to eminence within French academia. In fact, in 1916 La Libre Parole went so far as to make the accusation that Durkheim himself was a German agent. Durkheim's first intervention in the affair was published as a response to Ferdinand Brunetière, who had defended the army as crucial to security, prosperity and democracy. He had depicted these as threatened by a malign individualism, particularly found in intellectuals, whom he claimed were defending Dreyfus out of wounded vanity. This article provoked Durkheim to publish a spirited defence of his vision of organic solidarity. He began with an appeal to the sacredness of the human condition, which he thought must induce respect for others, 'The human person, whose definition serves as the touchstone according to which good must be distinguished from evil, is considered as sacred'. This sacred quality, according to Durkheim, generated a protective space around the human being, hence, “Whoever makes an attempt on a man's life, on a man's liberty, on a man's honour inspires us with a feeling of horror, in every way analogous to that which the believer experiences when he sees his idol profaned” (Durkheim 1901/1992, pp 123-128). He wrote that because the religion of humanity rose far above individual concerns, it served as a rallying point, producing social cohesion by uniting people in pursuit of a common end. For him, the religion of humanity was a historically specific form particularly suited to the France of his day. He asserted that as societies became more populated, they admitted more variation, and the division of labour operated as a further force of differentiation and discord. Society was moving, he warned, towards conditions in which the only thing that members of a social group had in common was their humanity, there remains nothing that men may love and honour in common, apart from man himself. By cruelly punishing Dreyfus, French society renounced all that constituted the worth and dignity of living for the sake of a public institution, the army. In this essay there is no mention of race or anti-Semitism, which Durkheim turned into an abstract issue of individualism and collectivism. Though he appealed to abstract universal principles as the source of social solidarity, his intervention in the affair was partisan, and specifically republican. Furthermore, his notion of organic solidarity involved an explicit politics of assimilation. In his account of the transformation from primitive to modern societies, Durkheim argued that the category of race became obliterated as a result of the emergence of differentiated individuals. Overall, he saw neither race nor religious differences as divisive forces within the system of social relations. Durkheim silenced the perpetual and severe conflict between races, classes and sexes that was characteristic of the period within which he was writing, suppressing from his historical narrative the sounds of protest, demonstration, riot and war. He unconvincingly resolved questions of race, class and sex conflict in the terms of organicism, dissolving confrontational social groups into individuals confronting society. Durkheim's second article on the Dreyfus case did address the issue of antiSemitism, but only to depict this as an error or illusion. In this essay, he (1899) figured anti-Semitism not as a racial problem but as a symptom of the 'crisis of transition' between mechanical and organic solidarities. He described antiSemitism as a misplaced symptom of social suffering, an error in that it projected racial essentialism onto social assimilation. It was an old-fashioned error, ascribing distinctive qualities to a group, where no such entity existed, “The Jews are losing their ethnic character with an extreme rapidity. In two generations the process will be complete” (Durkheim 1899). The extension of restitutive law and the diminution of repressive law was an index of an increase in the division of labour and the changed base of social solidarity. The reciprocity between specialized functions created an organic solidarity, analogous to the relations between specialized organs in the body. However, one of the organs had a certain priority because it directed the functioning of the others; in the body it is the brain, and in society that organ is the State. It was because of its centrality and representative nature that the State had a privileged position with regard to the law. Some crimes, which did not seem to offend directly against public opinion, were nonetheless severely punished, and this was because they damaged the dignity or authority of the State and its agencies, such as the police. The State laid claim to being the representative and embodiment of the collective conscience, and so any offence against the State was an offence against the collective conscience thus constituting a threat to social solidarity. However, in terms of the evolutionary framework of Durkheim’s models, such claims should diminish, as they amounted to basing solidarity in a society with an advanced division of labour on the mechanism of like-mindedness or a forced conformity, rather than on functional interdependence. Organic solidarity could only supplant mechanical solidarity in a society where all the parts institutions, and role-players in institutions functioned according to rules (norms) that were spontaneously generated and positively accepted. The problem with existing industrial capitalist societies in Durkheim’s view was that such a situation had not been achieved, and the division of labour was artificial and forced. Consequently, there was widespread ‘anomie’ an absence of recognized and positively accepted norms to regulate action, and in Marx’s terms “alienation” due to “forced” division of labour. Reference: Cotterell, R. (1999) Emile Durkheim: Law in a Moral Domain Edinburgh: Edinburgh University Press. Durkheim, E. (1899) 'Contribution' in Dagan, H. (ed.), Enquête sur l'antisémitisme Paris: P.V. Stock, pp 233-237 Durkheim, E. (1901/1992) 'Two laws of penal evolution' in Gane, M. (ed.), The Radical Sociology of Durkheim and Mauss London: Routledge, pp 123-126 Durkheim, E, (1983). Law as an index of social solidarity, pp 42-48 Émile Durkheim (1957). Professional Ethics and Civic Morals, trs. By C. Brookfield, London, Routledge & Keegan Paul, pp 90-98 Miller, W.W. (1996) Durkheim, Morals and Modernity London: UCL Press, pp 111-114. Read More