Required reading: PSN, pp. 265-278, and R. Cotterrell, Emile Durkheim: Law in a Moral Domain (1999), Ch 7 (photocopied handout)
Q: How far would Durkheim agree and disagree with Marx's view of law? Q: Does modern law need a set of values to underpin it? Can sociology explain what values modern law must express? What answer to these questions does Durkheim give? Q: If Durkheim 'got legal evolution wrong' does this destroy the significance of his view of law?
PSN, pp. 265-278
Though Durkheim was a contemporary of Weber, his work was vastly different. Both Marx and Weber are usually referred to as conflict theorists. They understood that any social order involved the regulation of opposing interests, and, as a result, that conflict between individuals and among groups was an essential part of every society. Durkheim begins with a very different premise. His approach is usually called functionalism. The functionalist view focuses on the role of social objects or actors, that is, on what they do. Durkheim believed that harmony, rather than conflict, defined society. He examines social phenomena with regard to their function in producing or facilitating social cohesion. Whereas Weber was preoccupied with rationality, Durkheim is primarily concerned with solidarity: what holds individuals together in social institutions? Durkheim believed that solidarity was the normal condition of society, and even though he recognized the turmoil associated with industrialization, he considered conflict abnormal or pathological. Law played a central role in Durkheim's analysis of social development, although it was not his primary interest. His abiding concern was with understanding the nature and sources of social solidarity and cohesion, in particular in the problematic context of modern industrial societies.
Since Durkheim's work is focused on understanding social order he devotes much attention to the analysis of deviance and law-breaking. Law came to play a vital part in Durkheim's account of modern societies not for its own sake, however, but because he saw law as the crucial empirical indicator of social solidarity, his overriding concern.
“Since law reproduces the principal forms of social solidarity, we have only to classify the different types of law to find therefrom the different types of social solidarity which correspond to it.”
In Durkheim's first book The Division of Labour, he developed a distinction between two types of social solidarity, mechanical and organic. This book tried to show that societies are real and that the reality of societies lay in something that Durkheim calls "solidarity".
→ Mechanical solidarity is characterised by all individuals uniformly sharing the same values, belief and roles, a common conscience collective. This model was attributed by Durkheim to simpler societies with only a rudimentary division of labour.
→ Organic solidarity by contrast is based on the mutual interdependence of different units in societies with a highly developed division of labour. Durkheim's key argument was that organic solidarity was the only type possible in complex and differentiated modern societies.
Durkheim's concern was to understand the barriers and the possible pathways to the achievement of this form of solidarity, against the background of the processes creating conflict, tension and anomie in modern societies.
Durkheim claimed that law was the 'visible symbol' of solidarity. This was based on a conception of law as an expression of social consensus, a reflection of shared sentiments and values, so that 'we can thus be certain of finding reflected in law all the essential varieties of social solidarity'. This seems to rule out of account the possibility of law being an arena of conflict or the expression of power as Marx saw it.Durkheim distinguished between two types of legal sanctions, arguing that they corresponded in turn to the two forms of...