Durkheim and the Law Edited by Steven Lukes and Andrew Scull Martin Robertson • Oxford Law in Society Series Durkheim and the Law Law in Society Series EDITED BY C. M. CAMPBELL AND PAUL WILES Decisions in the Penal Process A. KEITH BOTTOMLEY Law and Society: Readings in the Sociology of Law EDITED BY COLIN CAMPBELL AND PAUL WILES Deviant Interpretations: Problems in Criminological Theory EDITED BY DAVID DOWNES AND PAUL ROCK Female Sexuality and the Law SUSAN S. M. EDWARDS The Abuse of Power: Civil Liberties in the United Kingdom PATRICIA HEWITT Marx and Engels on Law and Laws PAUL PHILLIPS Law in the Balance: Legal Services in the Eighties EDITED BY PHILIP A. THOMAS In Search of Law: Sociological Approaches to Law VILHELM AUBERT L854 © Introduction, Steven Lukes and Andrew Scull, 1983 First published in 1983 by Martin Robertson & Company Ltd., 108 Cowley Road, Oxford 0X4 1JF. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the copyright holder. British Library Cataloguing in Publication Data Durkheim, Emile Durkheim and the law.—(Law in society) I. Durkheim, Emile II. Law I. Title II. Lukes, Steven III. Scull, Andrew IV. Series 340'. 109 K355 ISBN 0-85520-286-6 Typeset by Katerprint Co Ltd, Cowley Oxford Printed and bound in Great Britain by Billing and Sons Ltd, Worcester Contents Preface vii Introduction Steven Lukes and Andrew Scull 1 1 Law as an Index of Social Solidarity * 33 2 From Repressive to Restitutory Law • 39 3 Crime and Punishment v 59 4 The Evolution of Punishment' 102 5 The Legal Prohibition of Suicide 133 6 The Origins of Law * 146 7 The Nature and Origins of the Right of Property • 158 8 The Nature and Evolution of Contract 192 Index 238 Digitized by the Internet Archive in 2019 with funding from Kahle/Austin Foundation https://archive.org/details/durkheimlawOOOOdurk Preface While law was a subject of central importance to Durkheim and his followers (as we will show in our Introduction to this volume), Durkheim’s writings on law were scattered through¬ out his work, generally appearing in analyses devoted to other topics. Moreover, a number of essays dealing with the sociology of law have hitherto remained untranslated and are thus largely unknown to an English-speaking audience. We have therefore brought together the more significant of his writings on law, organizing them under broad subject- headings; and in our introduction we have sought to provide a critical assessment of the strengths and limitations of Durkheim’s work in this area and of the extent to which it is still of value to sociologists today. Andrew Scull wishes to thank the Guggenheim Foundation for support during the concluding part of his work on this book. We are most grateful to Dr Halls for providing, at our request, the relevant pages from his forthcoming translation of The Division of Labour in Society. Introduction Steven Lukes and Andrew Scull _^Law was a topic of central interest to Durkheim and to his followers. In his first major work, The Division of Labour in Society, Durkheim advanced three bold and striking hypotheses about law. The first concerned how law should be conceived - as an ‘external’ index which ‘symbolizes’ the nature of social solidarity.1 The second concerned its evolution, as societies developed from less to more advanced forms, from an all-ecompassing religiosity to modern secularism, and from collectivism to individualism. It postulated an overall shift from a predominantly penal law with ‘repressive organized sanctions’ to the prevalence of ‘civil law, commercial law, procedural law, administrative and constitutional law’ with ‘purely restitutory’ sanctions.2 The third hypothesis concerned its functioning, above all in the context of crime and punishment, and claimed that crime is a violation and punishment an expression of collective sentiments and that punishment’s ‘real function is to maintain inviolate the cohesion of society by sustaining the common consciousness in all its vigour’.3 These hypotheses were fundamental to Durkheim’s own further work in the sociology of law, and indeed elsewhere,4 and the same may be said of the work of his followers. He never ceased to see law systematically: ‘the diverse juridical phenomena’, he wrote, ‘are not isolated from one another; rather there are between them all manner of connections and they are linked with one another in such a way as to form, in each society, an ensemble which has its own unity and individuality’.5 He devoted a special section of his remarkable journal, the Annee sociologique (12 volumes 1898-1912), to ‘the analysis of works where the law of a society or social type is 2 Introduction studied in its entirety’,6 and always in such a way as to reveal principles of social organization and collective thinking. Similarly, he pursued his evolutionary inquiries, particularly into the law against suicide (Suicide)7 and into the development of punishment (‘Two laws of penal evolution’)8 of property rights and of contract (Professional Ethics and Civic Morals).9 These inquiries gained an added dimension after Durkheim’s turn, from 1895 onwards, towards the study of religion and the ethnography of primitive societies, which was governed by his preoccupation with the religious origins of all social phenomena.10 In line with this, in 1896, Durkheim’s nephew Marcel Mauss published his seminal article ‘La Religion et les origines du droit penal11 in which he advocated studying the origins of law through the use of ethnographic data. This approach strongly influenced other Durkheimian works in this field, notably Paul Fauconnet’s study of penal responsibility,12 Georges Davy’s study of the potlatch and the origins of contractual obligation,13 the writings of Huvelin on magic and the law,14 and Emmanuel Levy’s work on responsibility and contract.15 Finally, Durkheim restated his distinctive theory of crime and punishment in such a striking way that he provoked a most illuminating and interesting debate with Gabriel Tarde, the noted magistrate, criminologist, statistician and sociologist who became one of Durkheim’s most formidable intellectual opponents. We reproduce this debate in Chapter 3.16 The study of law, then was central to The Durkheimian enterprise. As he claimed in 1900: ‘Instead of treating sociology in genere, we have always concerned ourselves systematically with a clearly delimited order of facts: save for necessary excursions into fields adjacent to those which we were exploring, we have always been occupied only with legal or moral rules, studied in terms of their genesis and development.’17 Legal practices, institutions, and systems were, for him, social facts18 revealing wider social developments and processes, and eminently worthy of study in their own right, both historically, in the quest for their ‘origins’ and sociologically, in the examination of their functioning. Two sections of the Annee were devoted to these tasks: that on ‘Legal and Moral Sociology’ to the former, that