Durkheim, ÉMile (1858–1917)

Law and Social Solidarity

Durkheim, influenced by Auguste Comte's (1798–1857) positivist philosophy, adopted the view that sociologists may observe social phenomena not reducible to individual psychology as “facts” external to the individual. In The Division of Labor he attempted to explain the development of social solidarity—forces of moral cohesion that make social life possible. Although solidarity itself is not directly observable, Durkheim argued that the forms of law provide an index or representation of solidarity's forms in a society. Thus, repressive law, concerned with punishing offenses, represents mechanical solidarity or the social cohesion based on the shared beliefs and outlooks of society's members. By contrast, restitutive law, concerned with restoring the status quo when social relations are disturbed, represents organic solidarity or social cohesion based on functional interdependence. Every [Page 444]society contains a mix of both kinds of law and both kinds of solidarity. Nevertheless, in modern society, Durkheim argued, organic solidarity and restitutive law—exemplified by contract and commercial and tort law—predominate. By contrast, mechanical solidarity and repressive penal law typify simple and ancient societies.

Some scholars have severely criticized Durkheim's initial treatment of law. They claim that the lawsolidarity relation is simplistic and hard to test. Moreover, they assert that Durkheim's implication that societies evolve from a predominance of repressive law to one of restitutive law is empirically false, as is his claim that punishment evolves, in general, from more to less severe forms.

The most important aspects of Durkheim's explanation of penal evolution connect with his later approach to law. The Division of Labor presented early law as expressing the shared values and beliefs of society's members, the most important parts of society's “collective consciousness.” Crime in all societies is an affront to collective beliefs and values; it is punishment's role to reaffirm these beliefs and values. Durkheim's early thesis, however, was that the general link between law and the collective consciousness weakens with restitutive law's increasing predominance. Restitutive law gains moral power solely from its functional usefulness in linking disparate elements of society and ensuring a workable balance between them. In his later work, however, Durkheim came to see that such a moral basis for modern law was too weak.

Individualism

Initially, Durkheim saw the growth of individualism as antagonistic to social solidarity. Restitutive law compensates, in a sense, for excessive individualism. But later he changed this view entirely and argued that the “cult of the individual”—the belief that every individual human being's autonomy and dignity are supremely valuable—provides the only value foundation that can unite complex, diverse, modern societies. The value system of individualism is the essential basis for the collective consciousness of modern societies. The all-extensive collective consciousness of early societies, dominated by and expressed in penal law, and always strongly colored by religion, is replaced with a belief system that elevates the abstract human individual to virtual sacredness: a religion of humanity.

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