Durkheims Theory of the Development of Law - Essay Example

Durkheim and the Development of Law Durkheim’s theory of the development of law is a complex one, rich in detail and intertwined mazes of sociological bases to explain the role of law in society. He saw society as a separate entity from that of its individuals; as independent from the actions of the individuals within it. According to Durkheim, certain social facts such as family norms, and regulations exercise a form of coercive power on the members of a society.1 Presented as thus, these social facts are a part of society but which are objectively self-existent within a society. Yet is it not so that the very existence of a society is a product of its members’ actions, customs and thoughts? Durkheim argued that even subjective phenomena such as suicide are objective social facts; it exists no matter whether an individual chooses to leave that society or not commit suicide himself.2 It is in the same light that Durkheim viewed the existence and functioning of law within a society, and it is this intricate concept which will be the focus of the paper. Durkheim saw beyond law as a mere set of rules and regulations; he primarily expressed law as an assurance of a society’s fundamental values, as the moral values attached to individuals by individuals borne of human dignity. He assigned law the unifying value of society, calling it a ‘glorification…of the individual in general…sympathy for all that is human’.3 As a form of coercive power in society, law depicts society as a moral unit, and we feel the force of this coercive power when we deviate from it. Yet how can the members of a society co-exist with a set of moral values which are not a sum of its members’ individual values? It is as though Durkheim describes us a blank slates, upon which our entering into society is drawn a set of moral values by this separate entity – does this not undermine any autonomy that we could possess as individuals? How can it be a ‘collective common conscience’?4 Durkheim appears to have been at pains to reconcile the concept of moral values in society with its individual members. He explains that to view law as a culture enables us to thus reconcile these conflicting elements; law viewed as a body of beliefs and practices commonly held within a society causes the common conscience to exist interdependently with its members. The collective conscience is both a product of its individuals and a development of sociological laws as separate from individuals. It is split into two elements, which form it as a singular social phenomenon while retaining its independence of existence from individuality. Whether individuals exist in a society or not does not affect the existence of the sociological law – our presence merely puts it into action. Yet because law is derived from and expressive of the collective moral values of society, both the elements of law and morality can never be too far apart. It is this moral consensus which underlies the independently existing law and which gives it its moral force; this is the aspect which exists independently; the formula for the moral force of law. Durkheim expresses law as a way of measuring the forms of solidarity existent within a society and between different societies. He describes law as reproducing ‘the principle forms of social solidarity’,5 in that closer members within a society will create more particular and distinctive relationships, which thus require a more complex level and number of legal rules to regulate them. But how are we to exactly measure these forms of social solidarity? How can this concept be utilised in classifying between the types of special relationships? Durkheim states that the sanctions attached to laws are the most important element in explaining the legal moral stance and the sociological aspects of a society. Put simply, the most important element of the law is the sanctions attached to them. This is because they vary according to seriousness and level of considered culpability within a particular society. Thus these sanctions become a representation of a society’s public conscience and the role played in society by such offences to a society’s moral collective. The more serious a sanction attaches to a certain offence to society, it can be viewed as heightening the importance of the moral values it offends, and an image can thus be drawn of the moral intricacies and codes of a given society. The question begs to be asked that perhaps it was not a little naïve of Durkheim to reduce a society’s moral collective conscience to the mere reading of a penal code and the analysis of sanctions? While this form of analysis would cover great ground in showing the collective conscience of a primitive society in which its very members decide on and play a part in administering sanctions, it has the potential to stumble in more advanced societies. Such advanced societies are much more complex than the primitive ones, and sanctions are administered by courts, judges and a whole array of governmental bodies. If these are placed into the equation, it is likely that the collective conscience is at risk of being diluted in favour of governmental policies and other such elements which can – and do – sacrifice Durkheim’s form of collective conscience. In today’s world, it is not impossible that the law and its administration of sanctions is a far cry from the true moral outlook of a society. Durkheim says that this is not so, that the collective conscience of individual professionals must still be applied in accordance with the average citizen’s beliefs and moral outlooks. Thus these individual professionals must still interpret and apply the law in accordance with the collective beliefs of society as a whole. Put in practical, contemporary terms, this does gain credibility if one is to think of the process from the Parliamentary drafting of legislation to the courts constant struggle to apply and interpret the law in line with the legislation. Dworkin recognised the complex task the judges are faced with when applying the law, that they must find its ‘true ground’.6 He explained the very aspect that Durkheim addresses – that these professional bodies are not free to apply and interpret the law as they please; the collective moral conscience goes a great way in restricting the application of the law to its moral outlook. Although the issue involves the individual’s moral conscience on a collective basis, it is the practice within itself one can see as existing separately from the individual as a collective. Durkheim distinguishes between repressive and restitutive sanctions, which aid the further sociological analysis of a given society’s collective conscience and level of development. Simply stated, repressive law characterises its sanctions in the form of administering punishment or suffering as a fervent reaction to an insult to the collective conscience. If a man murders another, the collective conscience has been deeply ruptured and offended by this act and his punishment – be it execution or lifetime imprisonment – is a collective reaction to his offence. While Durkheim states that it is the reaction to the act which makes it an offence rather than the nature of the act itself, it is questionable as to whether this is an agreeable statement. It also appears to undermine the existence of his purported moral collective conscience, for the very fact that the reaction to an offence is severe arguably digresses back to the fact that it is considered to offend the moral value it has encroached upon. This is not to say that it is based purely on the reaction to the act, for the reaction itself could be based on the moral conscience which makes the nature of the act in itself ‘immoral’ and thus worthy of sanction. Put otherwise, it is the nature of the act which allows the collective conscience to react to it, for it is this very nature which places it within the moral collective sphere permitting the sanction in the first place. The reaction cannot arguably exist without the nature of the act, for it is the latter which is required to determine when the former is entitled to become sanction-based, and to what degree. Durkheim’s second form of sanction is his restitutive form; that which returns the situation back to how it was before the equilibrium of society was disjointed by the offence. This is based on Durkheim’s concept of the division of labour, which he describes as creating mutually dependent social relations. The task of restitutive law is to keep these relationships intact – so the sanction becomes one of regulation rather than its harsher counterpart. The main difference here is that restitutive sanctions require such bodies as tribunals to administer sanctions, as well as create them. This more complicated form of sanction is utilised in more developed societies, so from the outset, the distinction between these two sanctions enables us to separate the advanced societies form the more primitive forms. Because of the organs required to administer the law, major changes take place within a society once the practice of restitutive law is introduced. The collective conscience becomes diluted due to the fact that these special organs step in and create the sense that the damage suffered by society is less offensive to the collective conscience. The link between the offence and its direct effect on society is broken, making the damage caused isolated to the individual rather than society as a whole. But if we are to look at today’s society in which we live, one is hard pushed to find a difference between the organs which administer retributive sanctions as being different from those who administer restitutive sanctions. There is no doubt that society is more offended by murder than it is by the non performance of a contract. But this could be explained by other elements in relation to the collective conscience of society, which serve to blur the lines between retributive and restitutive sanctions. It is suggestible that retributive sanctions represent and serve to punish for stronger moralistic elements of a society, and thus the threat felt for disobeying such rules is more morally reprehensible because of this. Such punishment is often connected to pain and suffering felt by a victim, whereas restitutive sanctions respond to economic loss. Society often views physical loss as more morally reprehensible than economic loss, for example, the sanction for theft and the sanction for non performance of a contract. Although both sanctions are based on economic loss, the former is often seen as more reprehensible, for it is on a completely different level to parties entering into a contract. Both sanctions in today’s world would be administered by a court or tribunal, but the theft is likely to be more offensive to society. This is likely despite the possibility that the victim of theft has suffered no physical injury and may have suffered a smaller economic loss than the contracting party. So, how can we explain the reaction of society as being stronger to the victim of theft, who lost £25, when the contractor lost £60,000? It could be because the actual act of stealing from an individual, of invading their private space is seen as much more of a threat to society than the fully lucid entering of two people into a contract, knowing of the risks involved. One is thus brought back to the previous criticism of Durkheim’s contention that society’s reaction to such offences which makes them criminal, or retributive as opposed to restitutive. Perhaps it is thus so that the reaction of society makes an act reprehensible rather than its nature. Because the moral mesh of society considers theft to be a more serious and offensive act than non performance of contract, it is thus so interpreted this way through the administration of the sanction. This certainly serves to make more sense than the contention that the intervention of organs in the application of restitutive sanctions makes them less personal for a society, especially if one is to look at the system of sanction administration today. This line of thought also appears to fit in line with Durkheim’s use of the introduction of restitutive law to determine how developed a society actually is. The sanctioning of acts which fall under restitutive law requires a great deal more of understanding and at the very least economic awareness. Thus, societies which are even able to comprehend the sanction for non performance of contract are from the outset likely to be more advanced. Durkheim also contends that restitutive law develops in societies which experience a high degree of individual variation. In such circumstances, he admits that the collective conscience will weaken, and societies will become content to leave the administration of restitutive sanctions to other bodies. This is because the morality of such a society becomes stretched and thus thins out, conglomerating into specialised sectors of moral codes. It is because of the creation of these ‘side-sectors’ in societies with advanced economic conditions, which some of us never even come to experience let alone understand, that such restitutive sanctions connected to them are too distant for the collective conscience as a whole to comprehend or become offended by. Thus those specialised elements which do not govern, or indeed affect our lives sit well with us to be governed and regulated by specialised bodies. This is not to state that such highly advanced societies do not have in common some form of moral code underlying the law as whole, for we still manage to respect the existence of such specialised areas. Durkheim places this on the singular moral element that we all share – respect for the individual. Thus, no matter how complex a society becomes, it still is able to share at least one collective moral basis as part of its conscience. And it is this specific moral connection which allows us to surrender certain restitutive elements to specialised bodies – that we respect the more advanced circumstances of the individual who chooses to indulge in such aspects of life. Durkheim’s theory on the sociology of law does appear to be waterproof; he manages to make way for not only the primitive form of society but also the role of law within advanced societies. He creates a theory which can respect the complexity of some societies and their creation of secularised moral codes, whilst not neglecting the ever-present existence and importance of the more basic collective conscience. Whilst at times, his work appears deeply complex and impenetrable, it is worth remembering that simple accounts would do no justice to such elaborate issues. To formulate a theory for such a complex element of societal life, whilst maintaining its neutrality and preventing its falling mercy to secular interests whilst keeping it applicable to society in general was a very influential and groundbreaking feat. Bibliography Bellah, Robert N. 1973. Emile Durkheim: On Morality and Society, Selected Writings. Chicago: The University of Chicago Press. Cotterrell, Roger. 1999. Emile Durkheim: Law in A Moral Domain. Stanford University Press. Cotterrell, Roger. 2006. Law, Culture and Society: Legal Ideas in The Mirror of Social Theory. Aldershot: Ashgate Publishers. Durkheim, Emile. 1889. Individualism and The Intellectuals. Reprinted in Pickering W.S.F. & Miller, W.W. 1993. Individualism and Human Rights in The Durkheimian Tradition. Dworkin, Ronald. 1996. Freedom’s Law: The Moral Reading of The American Constitution, Cambridge, Mass.: Harvard University Press. Giddens, Anthony. 1972. Emile Durkheim: Selected Writings. London: Cambridge University Press. Gurvitch, Georges. 1947. Sociology of Law. New Brunswick, NJ: Transaction Publishers reprint. Hassard, John. 1995. Sociology and Organization Theory: Positivism, Paradigms and Postmodernity. UK: Cambridge University Press. Johnson, B. D. 1965. "Durkheims One Cause of Suicide." American Sociological Review, 30:875. Martin, Michael & McIntyre, Lee. 1994. Readings in The Philosophy of Social Science. Boston: MIT Press. Mestrovic, Stjepan 1988. Emile Durkheim and the Reformation of Sociology. New York: Rowan & Littlefield. Poggi, Gianfranco. 2000. Durkheim. Oxford: Oxford University Press. Read More