The formative sociological theorists were all concerned with social change and in varying degrees with the ways in which law is implicated as both a product and a catalyst of change. As many stressed the primacy of economic changes and market relations, a focus for their discussions was the extent to which law (and other social institutions) is autonomous from economic forces. Durkheim’s discussion of law occurs within his analysis of social differentiation and complexity; Weber seeks to identify the relationship between law and rationality; and Marx identifies connections between capitalism and law.
Law and the division of labour: Durkheim
Durkheim’s interest in law is secondary to his overriding concern with social solidarity and the scientific study of society. He seeks to analyse law in a general way in order to reveal principles of social organization and collective thinking. Durkheim tends to conceptualize law as derivative from and expressive of a society’s morality (Lukes and Scull, 1983: 1–4; also see Smith, 2008a). For Durkheim, social solidarity is the social phenomenon binding individuals together to create a society that exists sui generis. Social solidarity has a life of its own and is more than the sum of its constitutive parts. Social life is constituted by social facts, the characteristics of which are external to the individual, they exercise constraints on people and provide sanctions for nonconformity, and they are independent of the actions of particular individuals but exist throughout the social group (Lukes, 1975: 8–15). The most important social facts are ‘collective representations’ and Durkheim comments:
While one might perhaps contest the statement that all social facts without exception impose themselves from without upon the individual, the doubt does not seem possible as regards religious beliefs and practices, the rules of morality and the innumerable precepts of law – that is to say all the most characteristic manifestations of collective life. All are expressly obligatory, and this obligation is the proof that these ways of acting and thinking are not the work of the individual but come from a moral power above him [sic]. (Durkheim, 1974: 25)
Even though social life is experienced as an objective reality, it is not directly amenable to empirical observation and scientific study. This presents a significant problem for Durkheim’s aspirations for a positivistic sociology. He observes that in science we can know causes only through the effects that they produce and, in order to determine causes precisely, the scientific method selects only those results that are the most objective and the most quantifiable. Durkheim asks: ‘Why should social solidarity prove an exception?’ (1984: 26–7). He proposes that solidarity is a social fact that can only be known thoroughly through its social effects and can be measured. Durkheim says:
[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.
Repressive sanctions entail the imposition of suffering or disadvantage on the perpetrator of a crime. The purpose of the sanction is to deprive offenders of their life, fortune, honour, liberty or other possessions. Repressive sanctions are usually contained in the criminal or penal law. An offence against an individual offends the entire society and the criminal law reflects this. Penal law is an expression of the shared outrage against acts that offend the collective morality and, where mechanical solidarity prevails, there is only a collective morality. Repressive law corresponds to what is at the heart and centre of the collective consciousness, indeed: ‘an act is criminal when it offends the strong, well-defined states of the collective consciousness’ (Durkheim, 1984: 39). An act does not offend the common consciousness because it is criminal but the converse: the act is a crime because it is condemned. Durkheim observes: ‘Crime is not only injury done to interests which may be serious; it is also an offence against an authority which is in some way transcendent’ (1984: 43). Ironically, crime serves to reinforce and strengthen the collective consciousness. The common expression of anger enhances social solidarity by reaffirming agreement on social norms. In primitive societies law is wholly penal or repressive in character; it is the people assembled together who mete out justice.
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.
The reliance on restitutive laws to regulate many and various types of social relationship indicates organic solidarity: law becomes a way of coordinating the differentiated parts of the society and integrating their diverse needs, interests and expectations. As societies expand, the collective consciousness must transcend all local diversities and become more abstract, thereby leaving more scope for individual variations. As a result, transgressing restitutive laws does not evoke the same strong sentiments as violating repressive laws. The evolution of societies from those characterized by mechanical solidarity to those where organic solidarity dominates is indicated by a drift towards more and more restitutive law, while repressive law regulates a smaller quantity of offences and range of relationships.
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.
The degree to which a government possesses an absolutist character is not linked to any particular social type. Absolutist governments can be found in a very simple, primitive society or in an extremely complex society. This is why Durkheim seeks to distinguish the two causes of the evolution of punishment: the nature of the social type and of the governmental organ. Accordingly, the movement from a primitive type of society to other, more advanced types may not entail a decline in punishment (as might be anticipated following Durkheim’s earlier references to the division of labour), because the type of government counterbalances the effects of social organization. With the advent of the Roman Empire governmental power tended to become absolute, the penal law became more severe and the number of capital crimes grew. During feudal times punishment was much milder than in earlier types of society, until the fourteenth century, which marks the increasing consolidation of monarchical power. Durkheim says that ‘the apogée of the absolute monarchy coincides with the period of the greatest repression’; during the seventeenth century the galley was introduced, countless corporal punishments emerged, and the number of capital crimes increased because the crimes of lèse majesté expanded (1973: 293). Historical research in England documents the enormous expansion of capital crimes during the eighteenth century (Hay, 1975: 18–26; Thompson, 1975: 190–218). Reforms in the late eighteenth and early nineteenth centuries introduced greater leniency into the penal system, suppressed all mutilations, decreased the number of capital crimes and gave the criminal courts more discretion and autonomy from 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).
Durkheim identifies two forms of criminality: religious criminality, which is directed against collective things, for example offences against public authority and its representatives, mores, traditions or religion; and human criminality, which only injures the individual, including theft, violence and fraud. The penal law of primitive societies consists almost exclusively of crimes of the first type; but as evolution advances religious forms of criminality diminish, while outrages against the person increase. The two kinds of criminality differ because the collective sentiments they offend are different, thus the types of repression cannot be the same. Offences of the first type are more odious because they offend a divine power exterior and superior to humanity. In the second type, as there is not the same social distance between the offender and the victim, the moral scandal that the criminal act constitutes is less severe and consequently does not call for such violent repression: both the perpetrator and the victim are citizens with associated individual rights. In contemporary times, crimes against the person constitute the principal crimes and offences against collective things lose more and more of the religiosity that had formerly marked them. So crimes directed against these collectivities – for example, the family and the state – partake of the same characteristics as those that directly injure individuals and punishments become milder. ‘The list of acts which are defined as crimes of this type will grow, and their criminal character will be accentuated. Frauds and injustices, which yesterday left the public conscience almost indifferent, arouse it today, and this sensitivity will only become more acute with time’ (Durkheim, 1973: 307).
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.
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).
Secondly, in Durkheim’s scheme, as law is an indicator of social solidarity, there is little scope for investigating conflicts or the discontinuity between them. Such a situation is an aberration, exceptional and pathological for Durkheim. He recognizes that customs might be out of step with the law, they might modify the law in practice or be an antidote to rigid formalism, but assures us that normally customs are not opposed to law (Durkheim, 1984: 25–7). This stance, then, is not very helpful in analysing colonial legal regimes and the imposition of western European law on indigenous normative systems. He pays little attention to the possibility of plural legal systems that can coexist and even cooperate. Durkheim’s overcommitment to a unilinear, evolutionary theory of legal and social change closes off opportunities to theorize alternative models of development and to articulate the various relationships between law and morality (Jones, 1981: 1014).
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).
In tribal societies, religious systems and legal systems were so intertwined as to be almost synonymous. Malinowski conceptualizes law as a system of mutual obligations that constitute definite rules constraining behaviour. He argues that these obligatory rules are ‘not endowed with any mystical character, not set forth in “the name of God”, not enforced by any supernatural sanction but provided with a purely social binding force’ (Malinowski, 1961: 51). The rules of law are the obligations of one person and the rightful claims of another. Explicitly contrasting Durkheim’s views, Malinowski asserts: ‘We may therefore finally dismiss the view that “group sentiment” or “collective responsibility” is the only or even the main force which ensures adhesion to custom and which makes it binding or legal’ (Malinowski, 1961: 55).
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).
Thirdly, Durkheim’s discussion of law offers a good starting point for a sociology of punishment, which surprisingly is a relatively recent subdiscipline (Garland, 1990: 1; Smith, 2008a: 335–7; 2008b). This leads to an examination of the ways in which punishments reflect or are interconnected with other aspects of social structure rather than solely linking them with an ethical system, or an assumption that punishment is the nonproblematic response to criminal deviance (Spitzer, 1975a: 634). A sociology of punishment must investigate how social controls interrelate with political, economic and ideological dimensions of social organization and social change, rather than treating punishment as emergent and spontaneous or imposed (Jones, 1981: 1019; Spitzer, 1979: 208). Examining the connections between the types and severity of punishments and such broader social changes as a weakening conscience collective, or increasing individualism, becomes the focus of investigation rather than simply assumed. Durkheim’s approach also emphasizes the expressive, emotional and symbolic elements of punishment, and the way in which it can be a realm for expressing collective values and concerns. This is an antidote to approaches that emphasize only the instrumental, purposive and control dimensions of punishments (Garland, 1990: 4–8; Rock, 1998; Smith, 2008b).
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