Q. What does Durkheim mean by the ‘society’ and the ‘social?’ Specifically what makes law itself a social phenomenon, as well as an indicator of other social phenomena?
Emile Durkheim, often referred to as the father of sociology, sought to discover how to attain social cohesion and integration. In his pursuit, he developed a theoretical framework using ‘social facts’ to define ‘society’ and the ‘social’. It certainly may be argued that Durkheim indeed discovered ‘society’, although the same cannot be said about his definition of the ‘social’. Whilst the terms overlap is best denoted by his rejection of individualism, the latter term is riddled with inconsistencies and perplexities. Nevertheless his views on individualism at least indeed lends itself to understanding ‘social facts’ and hence what is meant by the aforementioned terms.
In as much as the law and morality was of central interest to Durkheim’s quest, this essay will constantly interweave his position on it and its subsequent implications. It will begin by understanding the aforementioned terms, which will more than pave the way to understanding law as a social phenomenon. Hereafter, through his study of ‘contractual obligations’ will be used to demonstrate the law as an indicator of a much deeper social phenomena. Despite his framework being riddled with some perplexities, it is certainly a highly useful tool of sociological analysis and is praiseworthy in a post-industrialist era that switched from evolutionism to functionalism.
What does Durkheim mean by the ‘society’ and the ‘social?’
The terms ‘society’ and the ‘social’ are inextricably related as they are enveloped by Durkheim’s study of social facts. This term identifies society at a very functional and practical level, as well as distinguishes a set of facts different from those scientific facts characterised by biology and psychology.  He believes that previous ways of thinking ultimately meant that no human occurrence could not be called social.
Durkheim was an avid opponent of ‘methodological individualism’, a term which describing society as an aggregate of individuals. He ensued that society was its own entity, being homologous as well as unique. Clearly, for Durkheim this entity was structurally greater than the sum of its parts; he assumed that society constructed a reality sui generis, ultimately distinguishing it from the individuals that “form” it. Consequentially, society was instilled with an independent powerful coercive force which radiated over its individuals. He further confronts individualism by demonstrating the more profound impact of normative rules, instead of being formed individually, are powerful in their own right. Ultimately, Durkheim believed that ‘we are the victims of an illusion which leads us to believe we have ourselves produced what has been imposed upon us externally’.
As a result of discounting the impact of individualism, he provides in his analysis of the true relationship between the individual and the social. He sees this relationship as completely analogous to the relationship between the physical and mental. This relationship establishes that a social phenomenon does not arise in individuals, but rather from the relationship between individuals.
In his definition of society, he clearly divides society into two realms – the internal society and the external society. The internal society establishes the beliefs and attitudes pertinent and inherent to a society, whereas the external society compels and influences the individual to act accordingly. Hence if individuals do not conform to ‘society’, they could be compelled to do so or subsequently will be ostracised. Various phenomena can overlap into ‘internal’ and ‘external’ society as they can serve both purposes outlined above. Education is an example of forming internal society as it certainly constructs the individuals’ beliefs and attitudes. This is most salient when he says ‘it is patently obvious that all education consists of a continual effort to impose upon the child ways of seeing, thinking and acting which he himself would not have arrived at spontaneously.’
On the other hand, external society is best described by ‘social facts’ , that is, ‘any way of acting, whether fixed or not, capable of exerting over the individual an external constraint; or which is general over the whole of a given society whilst having an existence on its own, independent of its individual manifestations’. Therefore, social facts can exist externally to us and compel people to behave in a unified way, with norms that are constructed by society.
To further understand the true meaning of social however, the above definition must be broken down into its components; it must be external to the individual, inhibiting a coercive force as well as being prevalent to a group of individuals. A social fact must be external to the individual, pre-existing as well as post-existing to them. Whilst the fact needs to be external to the individual, perhaps Durkheim should have mentioned that the fact must be internalised before any coercion or compelling can occur.
As illustrated above, the constraint dispels society as merely the sum of its parts and thence further dispelling individualism – ‘it is true that this word ‘constraint’, in terms of which we define them, is in danger of infuriating those who zealously uphold out-and-out individualism. Since they maintain that the individual is completely autonomous, it seems to them that he is diminished every time that he is not dependent on himself alone.’ Hence social facts ideas undermine notions of individual autonomy. Hence -we are not free agents – we are prisoners of society. Durkheim best illustrates this when he says ‘I am not forced to speak French with my compatriots, nor to use the legal currency, but it is impossible for me to do otherwise’. He outlines many forms of constraints that may ‘forestall my action’, which hence, one way or another, compels the individual to conform to society. This is a plausible as societies spend a lot of resources to make individuals conform, incredibly noticeable nowadays through advertising for example.
The generality component depicts social facts to be general and independent, that is, they exhibit a level of dissociation, a level of independence from the elements which exist within it. By viewing this last component in conjunction with the other two, the term ‘social’ is certainly difficult to logically understand. ‘Social facts’ ought to manifest themselves ‘generally’ but also on an individual basis. This surely clouds his ‘scientific approach’ to studying ‘social facts’. Durkheim does little to diffuse this contention, albeit does state ‘it is a condition of the group repeated in individuals because it imposes itself upon them. It is in each part because it is in the whole, but far from being in the whole because it is in the parts.’ Perhaps Durkheim is alluding to the necessity of studying various components in their totality, which cannot be simply studied through individual actions. Even still, this argument engulfs more criticism about Durkheim’s work as he emphasized morality, and neglected other ‘domains of inquiry which are not merely absent from the Durkheimian corpus, but are indeed fundamentally incompatible with Durkheim’s most basic metatheoretical assumptions.’
Nevertheless, from this, Durkheim discovered ‘society’ to be a unique entity, existing beyond the aggregate of individuals. In addition, despite his definition of the ‘social’ harbouring the above complexities, we can at least study society different from Marx, that is, ‘not having the individual as their substratum.’
Specifically what makes law itself a social phenomenon, as well as an indicator of other social phenomena?
Since law was of central interest to Durkheim’s study of sociology, law can be seen as an institutional social fact which provides an index to social solidarity. Moreover, in applying the above meaning of society and the social it is clear that law can be manifested in the ‘internal’ as well as external society. Education has taught us to recognise and respect law, as it is centuries old and the work of the collective, reinforcing the internal influence. More ostensibly however, Durkheim found the law to fulfil the ‘constraint component’ or what has been called ‘negative, obligatory and prohibitive aspects’. It is evident in his very definition of ‘social facts (of which he saw legal rules as paradigmatic instances) in terms of constraint, controlling, giving direction and setting limits to individual action.’  Hence law is a social phenomenon or social fact, in that it provides an index to social solidarity – showing the way people are socially integrated.
By logically working through Durkheim’s work on The Division of Labour, he found that previous mechanisms such as kinship and familial ties were redundant in the wake of a post industrial, westernized society. Instead he prophesised that that the ‘division of labour’, in which ‘individuals are linked to one another’ forming a mutual reliance, inter alia, that he thought would end his quest. He saw the increasing specialisation of labour and subsequent mutual reliance would make ‘men unite in a contract’. 
Arguably a contractual arrangement is more than a derivative of a legal institution which of course is a social phenomenon. However, Durkheim proves that this legal institution does not purely rest on legal foundations; the legal realm of the parties instead rests on a deeper social phenomena, which they have no control. Lukes and Scull profess that ‘it is not easy to say whether it is social solidarity which produces these phenomena or, on the contrary, whether it is the result of them. Nonetheless, Durkheim argues that social cohesion must precede the contract to ensure its efficacy, which ultimately disguises the problem. Self evidently, in a great majority of cases, a contract is no longer restricted to determined forms, but with all these contracts social cohesion must underpin it. Hence, a much deeper social phenomena is illuminated, albeit arguably it is still unresolved as to what maintains social cohesion. Durkheim attempts to provide his first of three solutions to this problem – the division of labour. Despite this solution being fraught with incorrect assumptions, and subsequent merit questionable due to him ultimately abandoning it, he does prove the law to be an indicator of a deeper social phenomena; even if the solution he provides is unresolved or inadequate.
In conclusion it is of no surprise that Emile Durkheim will be remembered as the father of sociology. His unique characterisation of ‘society’ is praiseworthy as today we may analyse society as its own entity – a far cry from merely an aggregate of individuals. Not only are we now able to see the importance of the individual cohesion within society but how the law facilitates this. Hence his ‘discovery’ of society, and his placement and function of the law therein, make his works a highly useful tool. His work on ‘social facts’ certainly help us arrive at his unique characterisation, but unfortunately, the same cannot be lent to the term ‘social’ as it is riddled with the above perplexities. Due to these perplexities, we cannot definitively know what can be termed social. In spite of this, the law seems does present a social phenomenon which is relatively simple to ascertain as it ostensibly fulfils the three components. Hence he indeed reveals this social phenomenon to be an example of deeper social phenomena, albeit sadly his quest was never completed.
Emile Durkheim, The Rules of Sociological Method and Selected Texts on Sociology and its Method, S.Lukes (ed), trans. W.D. Halls, The Free press New York pp 50 – 59
Emile Durkheim, “Individual and Collective Representations” in Sociology and Philosophy, trans, D.F Pockock, The Free Press, New York, 1974, pp 24-26, 28-30
Emile Durkheim, The Division of Labour in Society, trans, G.Simpson, New York, 1933,
Lukes, S and Scull: Durkheim and the Law; Oxford: Martin Robertson, 1983.
Lukes, S. Emile Durkheim: His Life and Work, Harmondsworth, Penguin, 1973.
Perrin, R. “Emile Durkheim’s ‘Division of Labour’ in the Shadow of Herbert Spenser”1995
Cotterrell, R. Emile Durkheim: Law in a Moral Domain, Edinburgh, Edinburgh University Press, 1999.
 Cotterrell, R. Emile Durkheim: Law in a Moral Domain, Edinburgh, Edinburgh University Press, 1999.
 Course Materials (hereafter CM) p.138.
 CM p.141
 CM p.140
 CM p.145
 CM p. 140
 CM p. 144
 CM p.139
 CM p.142
 Lukes,S and Scull, A; Durkheim and the Law; 1983 – page 5 (He never mentioned the government, economics etc)
 CM p.139
 CM p.142’
 Ibid per Vogt, art. Cit., p 183
 Lukes, Emile Durkheim, pp. 12- 14
 CM 151; Perrin, R. “Emile Durkheim’s ‘Division of Labour’ in the Shadow of Herbert Spenser”
 Ibid – page 34
 CM p.150
 He assumes that people are going to do menial jobs for the greater good of society.