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Emile Durkheim - The Division of Labour in Society Book One Chapter Two: Mechanical Solidarity Through Likeness
1. * There must be a common element in 'crime', across time and space (communities)
* crime causes punishment, and 'the unity of effect shows the unity of the cause'
# (maybe if we accept both as social constructs, but even then, many auxiliary causes must surely be added to crime to be a sufficient cause of punishment)
* the common element isn't harm to society, cause not all crimes are harmful, and some things (e.g. economic crises) are harmful without being criminal
* not that they seem harmful to society, because this is obvious and tautological
* 'the only common characteristic of all crimes is that they consist...in acts universally disapproved of by members of each society'
# the rules of society are 'graven in all consciences', and where they aren't, it is 'an undeniable sign of pathological perversion'
* 'Every written law' (except penal law, whatever that can mean) has two objects: to prescribe obligations and to define sanctions
* penal law just sets out sanctions, so prescriptions are implicit
* In primitive societies, repressive justice doesn't function through 'special magistracy', but is diffuse
* this is because its object is the enactment of a conscience common to all
* but even where judicial power is wielded by a privileged class/group, they still represent the common conscience
* Some acts e.g. incest(!!!) are the 'object of quite general aversion', but are immoral rather than criminal
* so we can see that the collective sentiments to which crime corresponds must have 'a certain average intensity' - they must be strongly engraven in all consciences
# but they must also be precise - 'relative to a very definite practice', rather than aspirational to some vague object such as filial love
* The common conscience is 'independent of the particular conditions in which individuals are placed; they pass it on and it remains'
* it is the same in north/south, cities/country
# (what on earth could have this universal regularity? what is not caused by particular conditions?)
* An action is criminal because it shocks the common conscience; it does not shock the common conscience because it is criminal
* What about cases which are repressed, but aren't strongly disapproved of by the collective conscience?
* e.g. encroachment of judiciary on executive, religion on the state etc (bureaucratic/technocratic issues)
* governments are capable of attaching sanction to certain conduct spontaneously
# yet this cannot be a different type of crime, because crime causes punishment, and the same effect cannot have two distinct causes. therefore crime remains unitary
* (isn't this completely begging the question at hand - whether crime causes punishment)
solution: governments exist to 'create respect for the beliefs, traditions and collective practices' i.e. defend the common conscience
# so even if its reaction is stronger than that of the common conscience, it is still part of the same authority, because it derives its force from the common conscience (idiot)
Punishment, in the first place, consists in a passionate reaction
* this is especially true in primitive societies, where suffering is inflicted for its own sake
* it is claimed that today punishment has a different function - to defend society
# but a practice does not necessarily change because the intentions of those who apply it have changed
* even when punishment is cruel, it still serves as a defence mechanism - it destroys what was a menace
* the difference is that today we 'better know how to utilize the means at our disposal'
* hence punishment is both an act of vengeance and an act of defence
# disgrace is often meted out as a second punishment
* it is often called upon in the the absence of material punishment, or given feeble material punishment, as compensating evil with evil (this is a case of vengeance) Does punishment come from the individual or from society?
* society - we can see this because only the state can revoke a punishment, once given
* the vendetta - the individual form of punishment, has not been the primitive form of punishment in any society
# punishment has been based on religion, which is essentially social, with social prescriptions
# vendettas have been recognised as legitimate in societies, but not qua punishment
* 'the history of this penality is only a continuous series of encroachments by society upon the individual' Legal repression is organized, but what is this organization?
* not the codification of appropriate punishments - some regimes e.g. the Bible do not clearly suggest sanctions
* not in the 'institution of criminal procedure'
* it is the establishment of a tribunal
# whether all the people or a select number, whether regular or arbitrary - the infraction is submitted to the consideration of a constituted body
Strong states of conscience are a source of life, so it is inevitable that we react energetically to the cause that threatens our state of conscience (crime)
* 'the representation of a contrary state' threatens our current state, and hence troubles us
* contrary states held by people can enfeeble each other
# on the contrary, identical states reinforce each other (common conscience)
* hence, because of the strength of the conviction, it is impossible for states of the common conscience to tolerate contradiction
* thus in punishing, we are satisfying a power that is superior to us (hence punishment can be derived from analysis of crime,
defined as the contradiction of common conscience)
# this power seems transcendent, hence the religious traces in punishment
# this is illusory - we are avenging ourselves - but it is a necessary illusion; it allows us to distinguish between the common conscience and out other states of conscience
# this allows the mechanism that attaches punishment to crime to exhibit 'mechanical spontaneity' - stronger punishment is meted out when a crime corresponds to a stronger state of common conscience The social character of the reaction comes from the social character of the offended statements
* 'what adds the peculiar respect of which [the sentiments] are the object is that they are universally respected'
# but crime presupposes that they are not absolutely universal - hence it damages the unanimity that is the source of their authority
* thus the response is to mutually reinforce the collective position Why is punishment organised?
* organised repression is not opposed to diffuse repression, but differs only in degree
# the strength of the common conscience state accounts for the strength of the reaction, and a strong reaction requires greater organization, or 'unification'
* hence we can see that collective sentiments account for crime and punishment
# also, the powers given to governments emanate from what was has been diffuse
* so the government can't oppose conduct unless it is opposed as something that would offend the collective conscience, even where it is not directly affected
'Everybody knows that there is a social cohesion whose cause lies in a certain conformity of all particular consciences to a common type which is none other that the psychic type of society.'
* citizens love each other and also their country - without it 'a great part of their psychic lives would function poorly'
* the confluence of individual and social consciences in individuals generates a solidarity sui generis that links individual and society
# repressive law expresses this solidarity
* crime is either the common conscience being directly offended, or the organ of the common conscience being offended Because, like the individual type, the collective conscience is formed from diverse causes, there are some features of the common conscience that are no longer functional
* hence we have archaic inclinations/laws
# but as long as these offend the common conscience, there is reason to punish them (they disturb social cohesion)
* (very conservative agenda) Without a collective conscience, we would not have the moral conscience
* hence punishment is designed to act upon upright people; it heals wounds to the collective conscience
Chapter Three: Organic Solidarity due to the Division of Labour
1. * There is also restitutive sanction (civil law) which is based on a different social solidarity
* the sanction consists of 'a simple return in state', rather than punishment as suffering
* this punishment is not diffuse
# the loser of litigation is not disgraced etc
# the prescriptions of this form of law generally 'do not correspond to any sentiment in us'
* there are exceptions to this
# so whereas repressive law tends to remain diffuse, civil law creates specialized organs - tribunals, councils of arbitration, administrative tribunals
* Although outside the collective conscience, civil law is not interested solely in individuals
* when called upon, it still propounds a social law through its representatives
* it does not put to rights individual interests, but rather applies general and traditional rules of law to the particular case
# e.g. marriage is a contract, but not one that can be broken at the individuals' choosing
* if the contract binds, it is because society gives it this power
# society gives this power to contracts which have social value
* because the rules of civil law are outside of common conscience, they do not 'attach themselves indistinctly everywhere', but are established between 'restricted, special parties in society whom they bind'
* The relations that civil law applies to have two forms, and hence correspond to two sorts of social solidarity:
* negative relations of abstention
* positive, cooperative relations
The negative relation unites 'thing' and 'person' (e.g. property relations) e.g. inheritance
* this solidarity links things with persons, but not persons among themselves
# hence this solidarity would be consistent with a world of only one person, and numerous things
# such solidarity contributes nothing towards the unity of society
* there do exist relations of persons to persons which are also negative
# e.g. 'every owner of a separating wall who wishes to raise it must pay to the coproprietor the loss accruing from the change'
# but like the others, they have been set up only to repair or prevent injury; they do not demand cooperation or concurrence
* thus such rules serve to atomise, rather than to attach different parts of society 'Man' did have to consent to limit his own rights in order to recognise the rights of others. But what made them do so?
* not the need to live in peace, because war is no less desirable
# men need peace only if they are already united socially - this unity discourages egoism and urges individuals to make concessions
# 'negative solidarity cannot alone suffice'
* justice and charity are often opposed, such that justice represents respect for negative rights and charity everything that goes beyond
# this is wrong - justice (negative solidarity) has its root in a positive solidarity
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