Sociology and Law
Tuesday, 05 November 2013
Durkheim
To explain a fact, study its cause and its function
separately.Obviously, following from the basic rule, these
functions and causes are, by definition, social and
cannot be retrieved in the individual psyche, although he
admits that human nature plays a part in social facts (as
a kind of disturbing factor, but never as a cause). The
rules to find function and cause are: the cause of a social
fact lies in antecedent social facts, and the function of a
social fact lies in the end it fulfills.In other words, social
processes should be explained in terms of society itself
(e.g. social volume and density).
The Distinction of the Normal from
the Pathological
Science cannot decide what is good or evil for us, because it would
be ideological, yet, on the other hand, science must justify
itself.Durkheim sees the solution to this problem in the fact that
science should ask and investigate what is actually, in a given
society, good or desirable.Science is not evil or good but it can study
evil and good. Here, Durkheim proceeds to do just that.
Social facts are pathological when they disrupt the normal
operations of social functions in a certain society. This, of course,
can vary from society to society. Note Durkheim’s functionalist
argument that the most widespread social forms are, in the long run
and in the aggregate, the ones that survive (normality is therefore
more common). Therefore, social facts can be pathological at some
time in development (but not in the long run) because, and only
when, they were at one time normal.
Normality of Crime
An example is the demonstration of the
normality of crime. Crime is normal
because it is observed, in some form or
another, in all societies.It is not a
demonstration of the wicked nature of
man, but, on the contrary, a factor that
shows the necessary integrative element
in society
what is normal in one society is not
necessarily normal in another
Above we indicated that Durkheim distinguishes different societies from
one another. How does he make this distinction? This is the task of
social morphology.
Durkheim proposes to first identify the basic, crucial characteristics
of societies, which can be identified in a study of the simplest of
societies (this is why he undertook the study of Australian religions).
This indicates the relevance of ethnographies for
sociology.Therefore, he proposes to study the horde, i.e. a social
formation which cannot be split up into any smaller social parts; the
horde consist of individuals.Different hordes linked together form a
clan. From here on, societies can be classified into social types, e.g.
a simple replication of hordes or clans, a replication of these
replications, and so on (see Division of Labor).
Division of Labor
Economic forces have lead not only to a functional differentiation of
labor but also to differentiation processes in all other domains of
society. Durkheim argues that this is the result of an evolution from
mechanical to organic societies. Mechanical societies are composed
of similar replicated parts (families, hordes, clans). Durkheim argues
that in the course of history organic society made progress in the
proportion to which mechanical society has regressed. Organic
societies are made up of functionally different organs, each
performing a special role.The collective consciousness of this social
type has a different hold on the individual: the bonds to tradition and
family are loosened, but the individual now has the social duty to
specialize and to concentrate his range of activities.The collective
consciousness in modern societies still has a hold on individuals, if
only to affirm their individuality.
Crime, Law and Punishment
In the Division of Labor, Durkheim conceives law as a manifestation of the
collective consciousness.Hence he uses as a measure for the development
from mechanical to organic societies the evolution from repressive to
restitutive law. Repressive law is characteristic for simple and ancient
societies. Law is essentially religious law and infractions against it are
immediately punished because they threaten the existence of the collectivity
itself. Crimes that are not religious are less severely punished. The moral
beliefs and justifications on which law and punishment are based are
specific but not explicitly specified since every member of society knows
them (the collective consciousness is identical to the individual
consciousness).In modern societies only criminal law is still repressive: it
serves the unconscious function of strengthening social solidarity. The
nature of modern solidarity, however, changed and criminal law declined in
favor of restitutive law. Punishment follows legal violations in a restitutive
way so that the relations between individual and society are
restored.Because individuals are more and more differentiated from one
another (they have different professions), legal regulations are more
abstract and general so they can still apply to all different individuals and
provide the solidarity necessary for the cohesion of society: "That alone is
rational that is universal. What defies the understanding is the particular and
the concrete".
Contract
growth of commercial law is an index of organic social
solidarity: it indicates the need to maintain relations
between differentiated parts (analogous to the
specialized functions of the organs of the body), which
are backed up by society.In contract law, for instance,
every contract "assumes that behind the parties who
bind eachother, society is there, quite prepared to
intervene and to enforce respect for any undertakings
entered into". In organic societies it is therefore the state
which becomes the organ of priority to direct the other
organs (like the brain). Violating the rules of a contract
between individuals is an offense against the state as
the representative body of modern collective conscience
Crime Penality Law
In a later work Durkheim modifies his view of law and
outlines two laws of penal evolution. The first law
stipulates that "the intensity of punishment is greater the
more closely societies approximate to a less developed
type - and the more the central power assumes an
absolute character".Durkheim thus reaffirms what he
earlier argued in The Division of Labor: the collective
consciousness is stronger in mechanical societies, more
loosened in organic societies. He now explicitly links this
evolution with the religious or secular nature of law. In
primitive societies, the collective consciousness is
essentially religious and so are their laws. In organic
societies, the law is secularized to refer to some human
interest, not an individually held interest but to mankind
in general (analogous to the development of the
collective consciousness). Any offense is an offense
against another human and "cannot arouse the same
indignation as on offense of man against God
Crime Penality Law
However, in the second part of the first law Durkheim states
that the nature of political power also intervenes in the
development of the intensity of punishment. The law
does not always "automatically" represent the collective
consciousness; it may be "distorted" by the political
regime that determines its contents.An absolutist
government which faces no counter-balancing social
forces, in particular, may create and enforce laws which
do not correspond to the collective consciousness: the
laws may be repressive, even in a differentiated society
characterized by a division of labor. However, Durkheim
asserted, this is not "a consequence of the fundamental
nature of society, but rather depends on unique,
transitory, and contingent factors". The political society to
be normal, therefore, should always be in concord with
the development of the collective consciousness.
Identity of mechanical society – represive
sanctions
Identity of Organic society – compenstion
and contract