Law in classical social theory

[S]ocial solidarity is a wholly moral phenomenon which by itself is not amenable to exact observation and especially not to measurement. To arrive at this classification, as well as this comparison, we must therefore substitute for this internal datum, which escapes us, an external one which symbolizes it, and then study the former through the latter. That visible symbol is the law. (Durkheim, 1984: 24)

Durkheim’s interest in the evolution of societies and the implications of the increasing division of labour for social solidarity means that he is concerned to identify and classify different types of social solidarity. Where the society or social type is relatively small, there is only a rudimentary division of labour, members are relatively homogeneous in needs and interests, the social structure is relatively simple and there is a dominating collective consciousness, mechanical solidarity prevails. On the other side, where the society has a relatively large population, a complex division of labour causing interdependence between the specialized component parts, greater differences between individuals and a relatively weak collective consciousness, organic solidarity dominates. The method is clear and simple: in order to discern the type of solidarity, it is necessary to distinguish and examine the types of law, specifically: ‘Since law reproduces the main forms of social solidarity, we have only to classify the different types of law in order to be able to investigate which species of social solidarity correspond to them’ (Durkheim, 1984: 28).

The next methodological question is how to classify and measure different types of law. Durkheim defines legal precepts as rules of behaviour to which sanctions apply. He then makes a bold assumption and claims that ‘it is clear that the sanctions change according to the degree of seriousness in which the precepts are held, the place they occupy in the public consciousness, and the role they play in society’ (1984: 28). Different legal rules are then measured according to their sanctions, which are of two main types: repressive and restitutive.

Restitutive sanctions aim to restore the status quo ante, they do not necessarily imply any suffering on the part of the offender, who may be an individual or corporate citizen. The aim of the sanctions is to reestablish relationships and restore the previous state of affairs that have been disturbed through the actions or inaction of one of the parties to the relationship. Rules with restitutive sanctions are not established directly between the individual and the society but between limited and particular sectors of society, for example between and among individuals, associations, companies or governments, which they will link together. Examples of laws with restitutive sanctions include civil law, tort, commercial law, and contract, as well as laws that concern personal status, for example family law, administrative and constitutional law. Violation of these relationships and the obligations thereby established generally does not offend the entire collective consciousness, instead it inconveniences or harms only the plaintiff or complainant. In civil law cases the judge awards damages or orders a specific performance to complete the requirements of the obligation; the sanctions are neither penal nor expiatory. The losing plaintiff is not disgraced nor is their honour impugned. While repressive law tends to stay diffused throughout society, restitutory law sets up for itself ever more specialized bodies, for example consular courts and industrial and administrative tribunals. The institutions of the civil law are more specialized than those of the criminal law.

Restitutive law nevertheless remains connected, albeit weakly, to the conscience collective: it does not just involve private actors. While restitutive law does not intervene by itself and of its own volition but must be initiated by one or more of the parties concerned, it is society that lays down the law through the body representing it. Society is not absent: if a contract has a binding force it is society that confers that force. ‘Every contract therefore presumes that, behind the parties binding each other, society is there, quite ready to intervene and enforce respect for undertakings entered into’ (Durkheim, 1984: 71). However, contract law does not enforce all the obligations between private parties, only those that conform to the rules of law, that is, obligatory force only attaches to those contracts that themselves have a social value. In the law of contract agreements can be null and void if they contravene the criminal law, entail coercion or conflict with public policy.

Durkheim’s tight definitional alignment of types of law with types of sanctions is difficult to maintain in practice. The distinctions between criminal and civil law are not necessarily clear. Some kinds of behaviour may be subject to both kinds of laws/sanctions simultaneously. For example, a medical practitioner who causes the death of a patient may be sued in the civil courts for breach of duty and negligence as well as be subject to criminal proceedings for manslaughter or murder. Secondly, some civil laws have repressive and even penal sanctions, for example corporate law may provide for prison sentences for company directors who lie to shareholders; and courts can specify that some orders for damages are punitive, not just aimed at restoring the status quo. Thirdly, civil sanctions are increasingly being used to achieve criminal-law aims, especially crime prevention in some jurisdictions (Cheh, 1991; Green, 1996; Roach Anleu, 1998).

Durkheim anticipates some of these complications when he examines not only the effects of the division of labour on legal patterns but also the growth of governmental power, which he now regards as autonomous from the division of labour. He attempts to articulate general tendencies and suggests that throughout history punishment has passed through two kinds of changes: quantitative and qualitative. He formulates the law of quantitative change as: ‘The intensity of punishment is the greater the more closely societies approximate to a less developed type – and the more the central power assumes an absolute character’ (Durkheim, 1973: 285). Durkheim qualifies this by saying that a complete absence of limitations on governmental power does not exist empirically. Traditions, religious beliefs and resistance on the part of subordinate institutions and individuals place constraints on governmental power; however, they are not legally (either in written or customary law) binding on the government.

Durkheim specifies the law of qualitative change as follows: ‘Deprivations of liberty, and of liberty alone, varying in time according to the seriousness of the crime, tend to become more and more the normal means of social control’ (1973: 294). Punishments become less severe with the move from a primitive to an advanced society. Primitive societies almost completely lack prisons and, where these exist, they are not punishments, but forms of pre-trial detention for those accused of crimes. Durkheim explains this absence in terms of a lack of need. In relatively underdeveloped societies, responsibilities are collective so that when a crime occurs it is not only the guilty party who pays the penalty or reparation, it is also the clan or kin group. If the perpetrator disappears, others from the kin group or clan remain. It is not until the late eighteenth century that imprisonment – that is, a deprivation of liberty that can vary in length according to the seriousness of the offence – became the basis of the system of control and the use of capital punishment declined. Governmental/political power became more centralized, elementary groups lost their identity, and responsibility became individual (Durkheim, 1973: 295–9; also see Foucault, 1979; Smith, 2008b). For Durkheim, this development did not emanate from greater humanity or altruism but ‘it is in the evolution of crime that one must seek the cause determining the evolution of punishment’ (1973: 300).

In a later essay, Durkheim offers some thoughts on juridification. ‘Each day the involvement of law in the sphere of private interests becomes greater. … Superior animals have a nervous system more complicated than that of the lower animals; similarly, in so far as societies grow and become more complicated, their conditions of existence become more numerous and complicated, and this is why our legal codes grow in front of our eyes’ (Durkheim, 1986: 350). On the one hand, it seems that the strictly individual or personal sphere of life will continue to diminish but, as with progress, the increasing separation of human personality from the physical or social environment creates more liberty at the same time as increasing social obligations.

Problems

Numerous problems exist with Durkheim’s exposition of law and its connections with social structure. The following points identify some of the main issues.

First, Durkheim’s rendition of legal and social change is too simple and neat to properly reflect social reality. One consequence of this is that Durkheim’s conception of law remains very undeveloped. While his view of laws and sanctions tends to conceptualize differences in terms of dichotomies, with the understanding that intermediary types emerge during the process of evolution, there is very little articulation of what these intervening types look like. Durkheim devotes little attention to the institutional structure of law: the organization and actions of those who interpret, formulate, make, apply or use the law. The organization and interrelations between police departments, legislatures, corrections, the legal profession, organizational pressures and career aspirations, as well as legal culture and ideology, do not figure in Durkheim’s primary concerns. Often the aims and practices of these organizations and actors are in continual conflict; they are not integrated and the importance of negotiation and the processing of cases demonstrates how fluid, inconsistent and contradictory law can be. Only in ‘Two laws of penal evolution’ does Durkheim begin to examine the independent role of political action and political structures, and thereby acknowledge the state as separate from the collective conscience (Durkheim, 1973: 286–9).

Thirdly, Durkheim emphasized the external, constraining and controlling aspects of law, thereby precluding a systematic inquiry into its positive or enabling aspects as a set of procedural rules permitting individuals and groups to act in certain ways. Nevertheless, he recognized the importance of regulatory law in highly differentiated societies as a mechanism for coordinating different segments of society.

Fourthly, little evidence supports Durkheim’s claims that repressive sanctions prevail in primitive societies and that as societies evolve the dominant type of sanction becomes restitutive. Critics identify Durkheim’s empirical errors as stemming from his lack of anthropological data, his incorrect treatment of the material from ancient societies and an undue emphasis on the religious nature of early law (Barnes, 1966; Faris, 1934; Sheleff, 1975).

Anthropological studies point to the predominance of restitutive laws and sanctions in pre-industrial societies and show that the management of crime does not necessarily involve the collectivity and expression of penal sanctions (Merton, 1934: 324). Diamond indicates that in the early stages of development repressive law is restricted to a very few serious offences and early law involves a regulated or part-regulated system of private vengeance or feuding. The rise of repressive law parallels the emergence of economic class divisions and state formation (Diamond, 1951). On the basis of a cross-cultural survey of 51 societies, Schwartz and Miller tentatively conclude that their findings contradict Durkheim’s major thesis that penal law predominates in simple societies. They found that restitutive sanctions – mediation and damages – which Durkheim believed to be associated with an increasing division of labour, are found in many societies that lack even a rudimentary specialization (Schwartz and Miller, 1964). The research suggests that the division of labour is a necessary condition for punishment but not for mediation (Schwartz, 1974). They conclude that an evolutionary sequence occurs in the development of legal institutions, but the direction seems to be the reverse of that which Durkheim predicted. Similarly, an examination of punishment in 48 societies finds that the severity of punishment does not decrease as societies become more concentrated and complex; rather, greater punitiveness is associated with higher levels of structural differentiation (Spitzer, 1975a: 903).

Following Sir Henry Maine’s argument in On Ancient Law that law progresses from status to contract (Lloyd and Freeman, 1985: 895–7), Durkheim argued that ‘the prominence given to penal law would be the greater the more ancient it was’ (Durkheim, 1984: 97). In defining the area of the criminal law, Maine uses the criterion of harm caused to another, which also incorporates the area of tort law. Maine indicated that Roman law, the laws of the Germanic tribes and Anglo-Saxon law all allowed for compensation: the person harmed normally proceeds against the wrong doer via a civil action and, if successful, receives damages (Sheleff, 1975: 20–1). Historical research in early modern Europe also demonstrates that repressive sanctions involving violence and barbarism were exceptional and only exacted for specific types of serious offences and certain categories of offender, whereas civil actions were far more common as a legal remedy for harm done (Lenman and Parker, 1980: 14).

Finally, Durkheim’s view of the law as a reflection and index of social solidarity assumes that the nature of the law is determined internally, that is, within the structure of the society in question, and not imposed from outside. Many studies of colonial regimes, however, document the imposition of law in an attempt to effect rapid social change, usually modernization.

In light of the above, we might ask why Durkheim’s ideas on law are important. This is a potent question, especially as Durkheim’s ideas are empirically unverified and by his own positivistic standards this is a problem in itself. The following are some suggestions.

First, Durkheim’s ideas on law are important arguably because it is Durkheim who formulated them. As many sociologists consider Durkheim’s writings to be a central foundation of sociology, everything he wrote merits attention. One commentator goes so far as to suggest that Durkheim’s writings ‘remain the last neglected continent of classic theory in the sociological study of law’ (Cotterrell, 1991: 924).

Secondly, Durkheim offers a way of thinking about law and morality that is sociological, as he examines the connections between legal forms and other major dimensions of social life. Discussions of law and legal institutions have traditionally been the domain of jurists, legal historians and philosophers. Rather than viewing law and morality as ideational systems, Durkheim points towards the connections between law and other dimensions of social structure, especially social complexity and individualism, even though his version of the connections is too simplistic and rigid. His writings highlight the importance of examining the implications of broader social changes in social organization and collective sentiment for types of law. Even some critics of Durkheim’s views on the evolution from repressive to restitutive law wish to salvage these, suggesting that law is probably ‘the outer symbol of the nature of a society’ (Sheleff, 1975: 45).

Law and rationality: Weber

Law was a central aspect of Weber’s education and his career as well as his sociological theory. Weber studied law during the height of German historical jurisprudence and was always interested in the complex relationship between legal development and economic history, which distinguishes his approach from idealist legal theory, on the one hand, and economic determinism, on the other (Turner, 1981: 318–23). Weber taught commercial law and legal history at the University of Berlin, but moved to the newly created chair of economics at the University of Freiburg in 1894 (Hunt, 1978: 94–5; Rheinstein, 1954: xxxii–xxxiii). His major analysis of law (Rechtssoziologie) is contained in Economy and Society