Sociology of Law
March 27, 2011
Durkheim’s Theory of Legal Evolution
In Durkheim’s “Division of labor in society” he viewed society as having a moral order and how through social solidarity simple and complex societies are maintained through common beliefs. He viewed law as serving as an indicator of social solidarity and through the progression from mechanical to organic solidarity, which Durkheim argues can be observed in the evolution of law from a repressive to a restitutive system, simple societies represent mechanical solidarity with a primarily repressive form of law while complex societies represent organic solidarity who utilize a restitutive form of law (Durkheim, Division of labor). Durkheim distinguishes between these two types of law with the first type called repressive, which imposes some type of penalty on the offender. The second type is restitutive, which does not necessarily cause any suffering on the part of the offender but instead consists of restoring the previous relationships which have been disturbed from their normal state through restitutive sanctions (Durkheim, Division of labor).
Durkheim distinguishes between two types of solidarity. In mechanical solidarity society is organized collectively and is composed of beliefs common to all members of the group. In this society the consciousness of the individual more often than not reflects the consciousness of the collective. All members pretty much do the same things from day to day. All members hunt and gather, care for children, produce handicrafts, and participate equally in group rituals (Durkheim, Division of labor). In organic solidarity, the society is a system of different functions united by definitive relationships. Here each individual tends to have a personality which is his or her own. The concept of Individuality grows at the same time as society becomes more complex and diverse (Durkheim, Division of labor). Durkheim demonstrates how repressive law reflects a society characterized by mechanical solidarity in which Penal rules express the basic conditions of collective life for each type of society. In simple societies, those most simply organized, law is almost exclusively repressive with the penal law demonstrating the strength of collective sentiment towards a given crime. Through the collective beliefs and sentiments common to the average members of this society, these common beliefs form a determined system or way of life that is protected by all its members (Durkheim, Division of labor). Durkheim defines an act as criminal when it offends the collective conscience and states that “an act offends the common consciousness not because it is criminal, but it is criminal because it offends the collective consciousness” (Durkheim, Division of labor).
The Kibbutz settlement, according to Durkheim’s theory, would be viewed as a society with mechanical solidarity. The features of this society that would classify it as such would be as follows; first the research findings stated that everything in this society was shared on an egalitarian basis. This means that everything in the community was shared equally by all members of the society which is a defining feature of a society with mechanical solidarity. Second it was stated that all members of this community dined together in communal dining rooms which also is a defining feature of a society with mechanical solidarity. Members of this society also used communal bathing and toilet facilities, placed their children in communal nurseries and schools where all children were raised by community teachers and nurses, and also this community treated all possessions as belonging to everyone which are all defining features of a society with mechanical solidarity. This community also had a feature where all work was shared by all members of the community which demonstrates the collectivity represented by a society with mechanical solidarity.
The Moshav community would be a contradiction to Durkheim’s theory for the fact that it demonstrates features that represent both mechanical solidarity and organic solidarity. The fact that in the Moshav community the land that they dwelled on was owned collectively as a community and also the machinery they utilized for farming purposes was collectively owned and operated, gave this community features of a society with mechanical solidarity. In contrast, this community grew crops privately with each family working its own separate land prospering or failing according to its own actions, gave this society features of organic solidarity. Another defining aspect that gave this community certain features of a society with organic solidarity is the fact that each family living arrangement was private with each family owning its own house located far distances from each neighboring house. A society with mechanical solidarity would be quite the opposite; according to Durkheim’s theory they would share living space as the Kibbutz do and would share in all aspects of community life from growing crops to sharing in each other’s wellbeing. Another feature of the Moshav that represents organic solidarity is the fact that each family ate their meals privately and their child rearing practices were private family matters. Also in the Moshav community household items were consider private property as well as any luxuries that particular family might possess.
Law Form Comparisons
The Moshav community developed a formal legal system whereas the Kibbutz community did not. This fact alone would follow Durkheim’s theory and support the fact that the moshav was primarily, though not completely, a society based on organic solidarity. The Kibbutz also follows Durkheim’s theory in that their features were completely in line with a society that represented mechanical solidarity and that they did not develop a formal legal system. The make- up of the Moshav communities’ legal system is representative of a society with organic solidarity in that it is a separate institution comprised of specialized actors that are charged with enforcing the communities’ rules. The powers of this specialized legal institution were consistent with a society that had organic solidarity which was represented as utilizing restitutive law in that they had the power to hear complaints between members of the society. But also had features of a society with mechanical solidarity which was represented as utilizing repressive law in that they had the power to enforce rulings by invoking community approved sanctions. The moshav’s legal form again took on the shape of a society with organic solidarity in the fact that this legal institution operated according to written procedures and enforced a set of written rules.
The Kibbutz had no such formalized institution to enforce their laws or written laws and procedures which is consistent with a society that had mechanical solidarity. The Kibbutz community relied entirely on a primarily informal set of techniques to deal with nonconformists. They utilized ridicule, public criticism, a raised eyebrow, “the silent treatment”, denial of small informal personal privileges, and reduced cooperation on work projects. This way of dealing with nonconformists is consistent with a society with mechanical solidarity in that it utilizes repressive law to punish the person into conformity.
The role of a collective with the power to govern as demonstrated by the Kibbutz, is to ensure respect for collective practices and to defend the common consciousness. In societies with mechanical solidarity, this authority is utilized the greatest where the seriousness of the crime is a crime that attacks the groups ideals. In a society with organic solidarity as the Moshav community whereas these community’s contrast restitutive law to repressive law. Whereas repressive law corresponds to the 'center of common consciousness,' restitutory sanctions either constitute no part at all of the collective consciousness, or subsist in it weakly. Second, whereas repressive law tends to stay diffused throughout society, restitutory law as in the Moshav community works through more specialized bodies such as their judicial committee. Repressive law, typically involving sanctions for crimes against the whole community is common in lower, mechanical societies where law is simply an expression of morals. In simple societies crimes against the individual are common and are not seen as having great importance. Instead, crimes against the community take priority. This is because in lower societies the solidarity of the collective consciousness is widespread and strong (Durkheim, Division of law).
In Durkheim’s theory it was also mentioned that a necessity of crime was needed to strengthen the consciousness of a society with organic solidarity. Durkheim stated that he believed the punishment received from criminal activity would reinforce the society’s utilization and faith in the legal system. This fact was an important aspect of Durkheim’s theory and was a central theme utilized to explain organic solidarity. This portion of Durkheim’s theory, though important, had no bearing on the two communities analyzed during this study and hence could not be assessed on the evidence produced by this study.