Table Of ContentDurkheim
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
