Law in a Moral Domain

Durkheim's views on the role of crime and its significance within organic and mechanical societies were never static and his writings on this topic span from his dissertation The Division of Labour to the final years of his life in The Elementary Forms of Religious Life. This essay will demonstrate that Durkheim did believe that crime was a more regular occurrence and comparatively more predominant in 'mechanical' or less developed societies; however, the inherent contradictions in his arguments will be explored and ultimately determine that this statement is still correct in some form.

Firstly, an initial exploration into the problems which arise due to the division of law into two dichotomous categories will be undertaken followed by a discussion of issues resulting from the use as law as an indicator of social solidarity. Further, problems developing from the impact of the inherent link between religion and the criminal law and the relationship between punishment and social solidarity will be analysed. Durkheim's division of law A number of problems arise as a result of Durkheim's division of law into repressive and restitutive categories.

Firstly, the division of repressive law covering all areas of criminal law and restitutive law broadly covering all other areas of law is arbitrary and ambiguous. As a sociologist who was usually careful to define his terms, the resulting lack of definition creates a significant number of issues including confusion for individuals wishing to test Durkheim's hypothesis. 1 Within Durkheim's dichotomous classification there are a number of laws that exist in both categories, demonstrating that it is not only in reality that such a true and complete separation cannot not exist, but also in theory.

Laws may exist simultaneously in the restitutive or repressive categories, or more commonly they may change form from a restitutive to repressive law. An example of restitutive laws that are punished with criminal sanctions include incarceration for failing to pay a pecuniary fine, thus representing a change in the Durkheimian classification of the law. Alternatively, in some situations a strict definition of restitutive or repressive is impossible such as the current anti-terrorism laws, where such laws are commonly seen as fulfilling both criminal and civil functions.

Durkheim saw his classification process as a simple way of investigating social solidarity; however, these examples demonstrate his lack of understanding of the complexities of law. 2 Secondly, Durkheim's use of the law as an indicator of social solidarity, or more specifically the extent to which a society had moved from a mechanical to organic state is also problematic. According to Durkheim the greater the amount of repressive law in a society, the greater the indication of mechanical solidarity; and the greater the amount of restitutive law, the greater the indication of organic solidarity.

3 However; in a number of 'modern' societies in the Western world such as France, crime is increasing. 4 According to Durkheim's analysis due to the high division of labour and lack of homogeneity France would likely be analysed as a predominately organic society; however, this conflicts with his hypothesis that as society becomes more organic, crime remains static in comparison to the increase of 'civil' law.

In response to this dilemma, Baxi notes, "Durkheim recognises that all societies are likely to contain elements of mechanical and organic solidarity, and so of repressive and restitutive law," and thus it may be possible an organic society to have a high rate of 'criminal law. '5 Although Baxi attempts to explain away the possible existence of a high rate of crime in a predominantly organic society, the concept of high crime rates in Durkheim's writing is clearly linked to his concept of mechanical solidarity resulting in an irreconcilable clash.

The link between criminal law and religion In The Division of Labour, Durkheim noted the critical role religion played in relation to the creation and punishment of crime, concluding: "every crime is more or less religious. "6 This hypothesis linked with his theory regarding mechanical and organic solidarity; specifically, that in mechanical societies a sharing of the same beliefs occurred, and as a result a crime against religion became a crime against the beliefs of that society.

He intended to further clarify this argument in the Elementary Forms of Religious Life where he argued that religion is in essence the worship of society, because there is no known society without a religion. 7 However; Durkheim undermined his approach by classifying criminality into two categories: religious crimes and human crimes. 8 Religious crimes severely assault the common consciousness and include offences against the state, religion, authorities or tradition.

Human crimes in comparison were considered less severely as they involve private interests such as rape, murder or fraud. 9 This division meant that crimes only affecting the collective consciousness could be classified as religious, and the statement "every crime is more or less religious" no longer rang true for 'human crimes. ' The contradiction created due to the juxtaposition of all crimes being religious against the division of human and religious crimes is only further compounded by Durkheim's assumption of "the disappearance of religious prohibitions from later legal systems.

"10 If every crime is more or less religious, but religious prohibitions are disappearing, a reasonable theoretical conclusion would require crime everywhere to thus decrease. However, there is a strong argument that religion has merely altered in form and the masses redirected their worship to money, fame and politicians or dictators who offered hope of a better life, the same way conventional religion did. Thus, although Durkheim witnessed the decline in conventional religion he did not recognise the increase in alternative worship was simply the development of religion into a new form.

In this sense when Durkheim's statement "the feeling of respect for a force superior to that of the individual for a power in some way transcendental" is considered in a less conventional and more modern sense it could be seen how 'religious' crimes are seen as an attack on society and thus treated more severely than 'individual crimes. '11 Without a modern interpretation there is no explanation within Durkheim's reasoning that explains how all crimes against society are religious, when conventional religion is in decline but "crime everywhere has increased. "12 Reconciliation of Increased Crime Levels in Organic Societies

At the end of the nineteenth century, Durkheim noted that "crime everywhere has increased;" however, prima facie this contradicts his statement that it is specifically restitutive law that increases as a society develops to its organic state. 13 A number of researchers have attempted to reconcile this statement, however, none appear to have been successful thus far. Krohn based his research on the assumption that Durkheim believed that nations with a high population and moral density would have a greater degree of division of labour and anomie resulting in a high level of criminal behaviour.

14 This assumption was found to be false. Boyle found that the economic development of nation states and thus a possible reflection of the level of division of labour and organic development in fact consistently had a negative effect on the levels of individualistic legal activity. 15 In contrast, Leavitt found that within his definition of organic societies, a greater crime rate as a condition of development. 16 Leavitt's findings completely contradict Durkheim's hypothesis that crime would become less prevalent in organic societies.

The only way crime can "be everywhere" within an organic state is if it is less predominant in comparison to 'restitutive' law, thus, requiring an excessively litigious nation state, something that does not factually exist as proved by Krohn and Boyle. Punishment and Social Solidarity In the Division of Labour, Durkheim asserted that both crime and the criminals were normal and necessary. 17 Crime is normal because "it is impossible for any society entirely free of it to exist," and criminals are necessary in order to push socially accepted boundaries.

18 Although this hypothesis may appear illogical at first glance, Durkheim's 'community of saints' example illustrates the strength of this argument, because what may be considered criminal in one society may appear insignificant in another. 19 Furthermore, in his role as a deviant, the criminal allows society to continuously re-define its boundaries and provide a point of contrast, thus, "sharpen[ing] the authority of the violated norm.

"20 Erikson takes Durkheim's recognition of the need for criminals one step further and submits that a disruption to a "community's solidarity will compel the community to seek out criminals to punish. "21 It is not unlikely that Durkheim would have supported this proposition although this does not appear to be a matter he ever turned his attention to. Durkheim used Socrates as an example of a deviant who according to Athenian law was a criminal, "however, his independence of thought was useful not only for humanity but for his country.

"22 Although criminals assist society in solidifying pre-existing norms and boundaries, they also require society to constantly reconsider its definition of crime and their stance in relation to a range of activities considered criminal. Durkheim recognised that although punishment may alter in form, frequency and physicality over time, its purpose does not change. Durkheim went so far as to say "we all know it is society who punishes" distinguishing the notion of individual vengeance from what he saw as punishment delivered by society to restore broken norms.

23 The Achilles heel for Durkheim in relation to this issue was that he never dealt with the change of punishment practices consistently. In pre-modern or mechanical solidarity societies "incarceration did not occur because criminal responsibility was seen as collective;" however, as societies increasingly move towards an 'organic' state crime represented a form of punishment that allowed the collective sentiments of society to be imposed without the physical presence of all who wished to impose them.

24 Durkheim blatantly contradicts himself in the Division of Labour stating, "the nature of punishment has remained essentially unchanged. "25 However, he the goes continues in the same thesis to state that acts of violence against criminals were more frequent than they are today because "respect for individual dignity was weaker. "26 Although Durkheim did not deal with the issue of punishment consistently, he appears to have understood that the purpose of punishing criminals does not alter over time, even if its form may.

Durkheim's theories support the empirical fact that crime and punishment alter over time and his means of explaining this is through dividing law into repressive and restitutive categorisations and associating each with a different stage of societal development. Although his views on organic and mechanical societies became convoluted during his discussion regarding crime, the essence of his argument that as societies become more developed restitutive law increases disproportionately to repressive crime still remains.

Although Durkheim's theory of repressive and restitutive law may be difficult to study in an empirical sense, he did not intend his concepts to be used in such a way and hence, did not create them as such. As a result, it is important to remember that Durkheim was merely trying to explain phenomena that he experienced first hand and his use of law as an indicator of social solidarity was the best tool he could identify to explain his concept. Durkheim never intended to create a comprehensive explanation of social phenomenon such as law; hence, he should not be studied as though he did.

Bibliography:

Boyle E, 'Is Law the Rule? Using Political Frames to Explain Cross National Variation in Legal Activity' (2000) 79(2) Social Forces 385-418. Cotterrell R, Emile Durkheim: Law in a Moral Domain, Edinburgh University Press, Edinburgh, 1999. Cotterrell R, The Sociology of Law: An Introduction, 2nd ed, Butterworths, London, 1992. Durkheim E, The Rules of the Sociological Method in Law and Social Theory Materials, UNSW, Semester 1, 2009. Durkheim E, 'Crime and Punishment' in Lukes S & Scull A (eds), Durkheim and the Law, Martin Robertson, Oxford, 1983.