imile Durkheim (1858-1917)
Emile Durkheim was born in Epinal, France, and following several generations of rabbis, he was destined for the rabbinate. Part of his early education was spent in a rabbinical school. But soon after his arrival in Paris, he broke with Judaism. He attended the prestigious Ecole Normale Superieure and taught at the Faculty of Letters at Bordeaux and was subsequently appointed professor and chair of sociology and education at the Sorbonne. He was the founder of L’Annee sociologique, the first social science journal in France, and the author of several very important treaties in sociology (Allan and Daynes, 2017).
Emile Durkheim (1964) outlined his thesis on law in society in his influential work, The Division of Labor in Society. While tracing the development of social order through social and economic institutions, Durkheim set forth a theory of legal development with the idea that law is a measure of the type of solidarity in a society Durkheim maintained that there are two types of solidarity: mechanical and organic. Mechanical solidarity prevails in relatively simple and homogeneous societies where unity is ensured by close interpersonal ties and similarity of habits, ideas, and attitudes. Organic solidarity characterizes modern societies that are heterogeneous and differentiated by a complex division of labor. The grounds for solidarity are the interdependence of widely different persons and groups performing a variety of functions.
Corresponding to these two forms of solidarity are two types of law: repressive and restitutive. Mechanical solidarity is associated with repressive law. In a homogeneous, undifferentiated society, a criminal act offends the collective conscience, and punishment is meant to protect and preserve social solidarity. Punishment is a mechanical reaction.
The wrongdoer is punished as an example to the community that deviance will not be tolerated. There is no concern with the rehabilitation of the offender.
In contemporary heterogeneous societies, repressive law tends to give way to restitutive law with an emphasis on compensation. Punishment involves restitution for harm done to the victim. Crimes are considered acts that offend others and not the collective conscience of the community. Punishment is evaluated in terms of what is beneficial for the offender and is used for rehabilitation. (This general understanding of the goals of punishment now provides the philosophical underpinning of the contemporary restorative justice approach in criminal justice [O’Mahoney and Doak, 2017]).
Stated concisely, Durkheim’s position is that penal law reflects mechanical solidarity. Modern society is bound together by organic solidarity—interdependence and division of labor flowing out of voluntary acts. Society is complex; its parts are highly specialized. Through contracts, which are the main concern of modern law, people arrange their innumerable, complex relationships. Contracts and contract laws are central to modern society and influence the course of societal development through the regulation of relationships.
Durkheim did not elaborate a general framework or methodology for the sociological analysis of law, his interest in law still “resulted in the school that formed around him developing a considerable interest in the study of law as a social process” (Hunt, 1978:65). His ideas on law also provided an important background for discussions by later theorists concerning the nature of traditional law and the nature of crime. Although he may not have made “a serious contribution to the development of systematic legal sociology” (Gurvitch, 1942:106), he certainly made an important contribution to our understanding of the relationship between law and social solidarity and legal evolution (McIntyre, 1994).