Examine The Place Of Crime And Punishment In Durkheim’s Analysis Of Social Solidarity

Q: Examine the place of crime and punishment in Durkheim’s analysis of social solidarity.

A: One of Durkheim’s most original sociological contributions was his use of law and punishment as objective indicators of societal development. In The Division of Labor in Society, Emile Durkheim discusses how the division of labor is beneficial for society because it increases the reproductive capacity, the skill of the workman, and it creates a feeling of solidarity between people. The division of labor goes beyond economic interests; it also establishes social and moral order within a society. The social relations to whom the division of labor gives birth have often been considered only in terms of exchange. When the union results from the resemblance of two images, it consists of a blend of the two indistinct representations, thus becoming one. On the contrary, in the case of division of labor, they are outside each other and are linked only because they are distinct. Great political societies can maintain themselves in equilibrium only thanks to the specialization of tasks. The most remarkable effect of the division of labor is not that it increases the output of functions divided, but that it renders them solidary and thus is the source of civilization.

It is thus the continuous repartition of different human endeavors which especially constitutes social solidarity and which becomes the elementary cause of the extension and growing complication of the social organism. It suffices to state that the more solidary the members of a society are, the more they sustain diverse relations, one with another, or with the group taken collectively. The degree to which social solidarity contributes to the general integration of society is ascertained in order to judge whether it is an essential factor for social cohesion or only an accessory. However, social solidarity is a completely moral phenomenon that does not lend itself to exact observation or measurement. Thus, it needs to be studied in the form of an external index, which symbolizes it. The visible symbol is law. To Durkheim, the law is the most visible symbol of social solidarity and the organization of social life in its most precise and stable form. Custom manifests other sorts of solidarity when law no longer corresponds to the state of existing society, but maintains itself, by the force of habit. (There arise new relations with the superficial organization, which do not pass beyond the stage of custom and do not enter into the juridical life proper. Thus conflict ensues.) But it arises only in rare and pathological cases. Normally, a custom is not opposed to the law, but is, on the contrary, its basis.

Since the law has been established as the external index of social solidarity, Durkheim chose “to classify the different types of law to find therefrom the different types of social solidarity which correspond to them”. Every precept of law can be defined as a rule of sanctioned conduct. Moreover, it is evident that sanctions change with the gravity attributed to precepts, the place they hold in public conscience and the role they play in society. It is advisable then to classify juridical rules according to the different sanctions, which are attached to them. They are of two kinds. Repressive and Restitutive. The former essentially entailed suffering, or at least a loss, inflicted on the agent. The sanctions thus make demands on his fortune, or on his honor, or on his life and liberty. Repressive sanctions primarily constitute penal law. As for restitutive sanctions, they do not necessarily imply suffering for the agent, but consists only of the return of things as they were, in the reestablishment of troubled relations to their normal state. In these cases, whether the incriminated act is restored by force to the type whence it deviated, or is annulled, that is, deprived of all social value. Restitutive sanctions thus comprise of civil law, commercial law, procedural law, and administrative and constitutional law after abstraction of the penal rules, which may be found here.

The link of social solidarity to which repressive law corresponds is the one whose break constitutes a crime. The crime consists of acts universally disapproved of by members of each society. Crime shocks sentiments, which, for a given social system, are found in all healthy consciences. Sentiments whose violation constitutes a crime are common to the average mass of individuals of the same society. Thus, they are strongly engraved in all consciences and everybody knows them and feels that they are well founded. The totality of beliefs and sentiments common to average citizens of the same society forms a determinate system, which has its own life and is called the collective or common conscience. An act is criminal when it offends strong and defined states of the collective conscience. Durkheim stated that an action doesn’t shock the common conscience because it is criminal, but rather that it is criminal because it shocks the common conscience. It is this very thought that forms the basis for Durkheim’s use of punishment as an objective indicator of societal development, from simple to complex.

Crime is a breach of the collective conscience, which leads to an outrage, and the performance of a punishment. Crime damages the unanimity of the uncontested beliefs held by people. Thus, the nature of collective sentiments accounts for punishment, and consequently, for the crime. As numerous as the varieties are, crime is everywhere essentially the same since it everywhere calls forth the same effect, in respect of punishment, which can be more or less intense in accordance to the moral outrage elicited by the crime. Punishment consists essentially in a passionate reaction of graduated intensity that society exercises through the medium of a body acting upon those of its members who have violated certain rules of conduct.

Punishment thus has no conscious intention at its core but is born out of an emotional and psychological reaction to an offense caused, either to an individual member of society or a set of common beliefs. Social solidarity causes punishments to come about, yet at the same time it is strengthened and reaffirmed as a result of punishments. In expressing common outrage at a transgression of the collective conscience, members of society are also expressing their solidarity with one another, amounting to “a spontaneous reaffirmation of mutual beliefs and relationships which serve to strengthen the social bond”. According to Durkheim, less cultivated societies in order to maintain this solidarity demonstrate this vengeful punishment. He maintained that they tend to “punish for the sake of punishing, without seeking any advantage for themselves for the suffering which they impose”. Punishment thus is seen as an act of expiation and repressive law ensured that the outrage to common morality was avenged.

Durkheim contended that while the system behind the administration of punishment may have become more refined as society evolved, the motivations at its heart had not changed and punishment remained an action that has normative inputs. Society had just become more aware of the effects of repressive sanctions and criminal law, while the internal phenomena remain the same and in truth, punishment has remained, at least in part, a work of vengeance. While repressive law corresponds to the ‘center of common consciousness’ and tends to stay diffused throughout society such that the assembly of the people in their entirety functioned as the tribunal, the restitutive law is more organized and works through the specialized bodies and functionaries of society, such as the courts and lawyers.

According to Durkheim, repressive law and restitutory law vary directly with the degree of a society’s development. The repressive law is common in primitive societies where sanctions for crimes are typically made across the whole community. In these societies, crimes against the community take priority because the evolution of the collective conscious is widespread and strong while the division of labor has not yet happened. He argued that such societies represented mechanical solidarity, as there was less division of labor and therefore a stronger sense of collective identity rather than individual personality. Mechanical solidarity connects the individual to society without any intermediary. The bond that binds the individual to society is the collective conscience and shared belief system. It is this force which penal law protects against all enfeeblement, both in demanding from each individual a minimum of resemblances and in imposing upon them the respect for the symbol. Mechanical solidarity presupposes the ideas and tendencies common to all members of the society to be greater in number and intensity than those, which personally pertain to each member. Individuality is something that the society possesses. Thus in these social types, personal rights are not yet distinguished from real rights.

The more a society becomes civilized and the division of labor is introduced, the more restitutory law becomes prevalent. Durkheim stated that in societies with a highly differentiated workforce, a contractual or organic solidarity was produced as exemplified by the increase in restitutory law. This type of law developed as a response to the need to regulate the increased number of relationships between members of society who due to their differentiated roles had to rely on each other to function. The multiplicity of affairs necessitates the institution of special functionaries such as magistrates and courts act as representatives that uphold the common morality. The restitutive law tries to restore the relationships that were disturbed from their normal form by the crime that occurred and thus comprises of civil law, commercial law, procedural law, and administrative and constitutional law. Contractual law entails the juridical expression of co-operation. Commercial law regulates the contracts special to business. The procedural law takes care of criminal, civil or commercial procedure. In the rational classification of juridical rules, the procedural law ought to be considered only as a variety of administrative law. Administrative law regulates administrative functions. Constitutional law does the same thing for governmental functions.

Organic solidarity is possible only as far as each individual has a sphere of action, which is peculiar to him. It is necessary that the collective conscience leave open a part of the individual conscience in order that special functions may be established there. The more this region is extended, the stronger is the cohesion, which results from this solidarity. The rules, therefore, are established directly not between individual and society, but between limited and particular sectors of society, which they link together.