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Law and Social Theory

‘Durkheim was the first social theorist truly to discover ‘society’: its character and properties. He also discovered the real place and function of criminal and civil law in society’. Discuss this statement, giving particular emphasis to Durkheim’s characterisation of modern western societies and the place and function of criminal and civil law in these societies.

3161939

Class: Adam Czarnota

Time: Tues/Fri, 4-6 pm

Word Count: 3104

 

1. Introduction

In as much as Emile Durkheim viewed society as a separately examinable entity, rather than a mere collection of individuals, it may indeed be said that he discovered ‘society’. However, Durkheim’s place and function of criminal and civil law in society, and in particular modern Western society, is at times questionable. This essay will begin by considering Durkheim’s characterisation of ‘society’. It will then consider Durkheim’s place and function of civil and criminal law in society, specifically modern Western society. Finally, it will consider the implications of Durkheim’s position. Ultimately, it will show that while Durkheim undoubtedly provides us with a highly useful tool of sociological analysis, one must be careful to balance the importance of social cohesion with that which is socially beneficial for all members of a society.

2. Durkheim’s characterisation of society, and modern Western society

2.1 Durkheim’s characterisation of Society – social facts and social solidarity

In considering whether Durkheim truly discovered ‘society’, it is best to begin with his characterisation of society itself. Durkheim begins by stating that in any study of ‘society’, it is crucial to identify what, in a broad sense, constitutes that society. Durkheim surmises that certain facts can be classified as ‘social facts’, that is, ‘manners of acting, thinking and feeling external to the individual, which are invested with a coercive power by virtue of which they exercise control over him’.[1] These social facts not only identify society at an interactive and functional level, but are in fact separable from other scientific facts such as biology and psychology.[2] Clearly, for Durkheim, society is to be viewed as a unique and holistic entity. Society is much like the elements of the human body which come together to make life – ‘no doubt in the making of the whole each [individual] contributes his part, but… in such a combination… they become something else’.[3] This unification of social facts (particularly customs, law, and morality) is termed ‘social solidarity’, and is a force of cohesion between members of a society. Social solidarity links individuals both to each other and to society as a whole. As such, Durkheim’s society is not simply a group of individuals, but is to be viewed as structurally greater than the sum of its parts. Indeed, for Durkheim, society constructs a reality sui generis vastly distinct from the individuals which make up that society.[4] The implications of this perspective are vast, for it imbues society with its own powerful coercive force over individuals. Individualism takes a reduced importance compared to the greater force of normative rules which, rather than being individually formed, are a strength in their own right. For Durkheim, society precedes the individual, and ‘we are the victims of an illusion which leads us to believe we have ourselves produced what has been imposed upon us externally’.[5] This contrasts greatly to previous conceptions of the social. Marx, for example, saw society as originally a creation of (individual) man, yet saw a loss of the individual’s power through the progression towards capitalism. [Reference Marx?]

It may be objected that Durkheim’s ‘social facts’ are too difficult to define, for they will undoubtedly manifest themselves in a dissociated way in each individual case. This is a reasonable objection, for it seems questionable to apply a scientific study to something which manifests itself in an apparently subjective way. One must ask if the form of the ‘social’ is not clearly and objectively observable, how are we to define and measure it? Durkheim dispenses with this objection, arguing that it is not the form of manifestation in each individual which defines a social fact, but rather the collective belief, tendency or practice itself.[6] Thus social facts may be characterised because they occur externally to an individual; are independent of an individual; are widespread across a group of individuals (though not necessarily manifesting in the same form); and have a coercive force on individuals.[7] In this way, Durkheim avoids having to focus on individual psychical states, which are not objective or measurable, but rather examines the normative social tendencies which arise from such states. Durkheim’s methodology, then, requires study of the various wholes that make up society, for such structures are things in themselves, and are not simply made by combining scientific observations of various individual’s behaviour. Perhaps in this sense it may indeed be said that Durkheim truly discovered ‘society’, for he was the first social theorist to identify a separate dynamic entity which exists above the level of a mere collection of individuals. It seems that compared to earlier social theorists, Durkheim was the first to create a true concept of the ‘social’ as it is now generally considered. Compared to Marx, for example, only Durkheim’s model of society may be studied in itself, separate to the individual substratum from which it is made.

2.2 The division of labour and Durkheim’s characterisation of modern Western society

Social solidarity is an inherently broad concept, and may be identified in varying structures which exist across different societies. Durkheim recognises this, and in order to provide greater use from his terminology, he draws a distinction between two structural principles of social integration – mechanical solidarity and organic solidarity. Mechanical solidarity applies to simple or relatively primitive societies.[8] In such societies, solidarity is characterised by a kind of resemblance between members, similar to familial relations. Solidarity of this kind is maintained through a greater degree of homogeneity between members, without which there could not be strong social unification.[9] For Durkheim, it follows that an individual’s conscience in a mechanical society is ‘dependent upon the collective type and follows all of its movements’.[10] This notion of a collective (or common) conscience is a logical conclusion, for mechanical societies draw their utility through homogeneity amongst individuals, meaning differences in conscience are disadvantageous to the solidarity of the society as a whole.

In contrast to the above, more complex societies (such as modern Western society) may be characterised by organic solidarity. This is an interdependent form of solidarity, in which individuals are more heterogenous, yet become inextricably linked through mutual reliance on one another.[11] This reliance is caused by the division of labour, that is, the increasing specialisation of labour and activities which occurs in a more complex society. The division of labour for Durkheim mimics a kind of social Darwinism. The organism (society) begins simply, bearing homogeneous parts ‘linearly as the rings of an earthworm’. Yet, over time society becomes a complex ‘system of different organs each of which has a special role, and which are themselves formed of differentiated parts’.[12] This latter organism is modern Western society, and it is to be viewed as a complex, integrated, and interdependent creature. It also follows that whereas mechanical solidarity gives way to a type of common conscience, organic solidarity requires ‘that the collective conscience leave open a part of the individual conscience in order that special functions may be established’.[13] That is, while organic solidarity has a notion of the collective conscience, it also requires an individual sphere of conscience within which members of society can perform their specialised task and interact relatively independently with other specialised individuals. As will be seen, however, these individual spheres of interaction are still linked to the greater fabric of society as a whole (see 3.3 below). With Durkheim’s characterisation of modern Western society in mind, we may now consider Durkheim’s place and function of criminal and civil law within such a society.

3. The place and function of criminal and civil law in modern Western societies

3.1 The place and function of law in society – in general

Durkheim’s placement and functioning of law in society stems from the inherent problem that social solidarity is difficult to objectively measure, as outlined above. Durkheim acknowledges this, arguing that social solidarity ‘is a completely moral phenomenon which, taken by itself, does not lend itself to exact observation nor indeed to measurement.’[14] Clearly, as discussed, social solidarity cannot be useful without some way of objective identification through an index or measurement, less it revert to a subjective analysis of individual’s psychical states. For Durkheim, where social life exists, it takes on a definite form and organisational character, and this organisation is the law.[15] Thus Durkheim sees the law as the cataloguing of the organisation of society, such that we ‘can be certain of finding reflected in law all the essential varieties of social solidarity’.[16] While custom also contributes to regulation of some social relations, only in rare cases does custom oppose law.[17] The corollary of placing law as a manifestation of social organisation is that law connects each individual to his environment, and in a sense morally unifies the individuals of a society to one another. This is again in direct contrast to Marx, who saw the law as trapping the individual under a system of law designed to maintain power amongst the bourgeoisie (or proletariat? check). For Durkheim, ‘far from emancipating the individual… [law makes] him an integral part of a whole’.[18] Durkheim’s linking of the law to social solidarity has significant impacts on whether such laws will necessarily be socially beneficial, as opposed to merely socially integrative. This will be discussed (see 4 below).

3.2 The place and function of criminal law in society – repressive law

With a measure of solidarity in place, Durkheim identifies two types of law which correspond to different types of social solidarity. Repressive law ‘consists essentially in suffering, or at least a loss, inflicted on the agent’.[19] Restitutive law ‘consists only of the return of things as they were’.[20] Repressive law is criminal law, essentially created to prohibit ‘an act contrary to strong and defined states of the common conscience’.[21] As discussed, the strongest form of common conscience exists in mechanical societies. Thus it follows that repressive law is more prevalent in mechanically integrated societies. Yet, it will be recalled that even in modern Western society there is a degree of collective conscience. Thus in punishing a crime, modern Western society also unites minds. Indeed, the more intense the social sentiment against an action, the more likely the offence will be a crime, as opposed to a misdemeanour.[22] This leads Durkheim to argue that the place and function of the criminal (and criminal law) plays a normal (indeed , a crucial) role in modern social life. This is because breaches of criminal law prompt a consideration of acts which are offensive to social norms, making crime a vital and healthy aspect of society.[23] Without this social consideration (and amendment), there is no potential for modification of the collective conscience.[24] Social flexibility and change are closely linked to a notion of progress, and such progress becomes stifled when criminality is not present. As Durkheim reminds us, ‘nothing is good indefinitely and without limits’,[25] and it is through the penal law that we adjust boundaries in response to time and change. On the face of it, the notion of social solidarity as a determining factor in the penal law of modern Western society seems to bear positive connotations, for there is a notion of a constantly evolving and improving society. However, as will be discussed, the linking of social morality to penal law also has inherently negative consequences (see 4.2 below).

3.3 The place and function of civil law in society – restitutive law

In contrast to repressive law, restitutive law is closely linked to organic solidarity, for its purpose is to regulate how individuals may act differently in a society.[26] Rather than arising through a contravention of the common conscience, restitutive law recognises separation of individual’s conscience due to the division of labour. Its place and function is to allow these (vastly different) individuals to interact with one another in a socially cohesive way. It follows, then, that restitutive law has limited utility in mechanical societies, for their degree of heterogeneity is inherently less. In fact, Durkheim proposes that by measuring the proportion of juridical rules (restitutive versus repressive), we can determine whether a society is by-and-large mechanically or organically integrated.[27] Importantly, however, the two types of law are not mutually exclusive, and both link to social solidarity. Though restitutive law seemingly deals within the sphere of the individual conscience, it too is still intimately linked with social solidarity. True, individuals call forth a dispute related to restitutive law, but crucially the resulting decision is determined by (the socially binding) law, not by finding the best solution solely for parties to the dispute.[28] In this sense, restitutive law recognises individuals in a society while also strengthening the overall fabric of society through social regulation of interdependent relations. It follows that restitutive law, being concerned with social binding of individual behaviour, encompasses areas such as civil law, commercial law, and administrative law.[29] Indeed, Durkheim sees contract not as a mere agreement between two individuals, but as ‘the harmonious coming together of diffuse social functions… if it [the contract] conflicts with social purposes… it is necessary, while depriving it of all social value, to strip it of all authority as well’.[30] Durkheim also uses the example of a judge examining the law in a case of divorce to show the social importance of restitutive law – the judge assesses not the desires of the parties, but the divorce’s legal legitimacy.[31] Exceptions to restitutive law may occur when public opinion disagrees with a restitutive law – such as engagement brought about by violence or fraud. In these instances, the legal sanction is then increased by social censure, but Durkheim argues this does not occur ‘in the great majority of cases’ for restitutive law.[32]

To briefly summarise thus far, it is clear that Durkheim has canvassed the place and function of both civil and criminal law under the umbrella of social solidarity. Each of these groups of law draw their form as a result of the division of labour, and has its function not only as a kind of measurement of the type of social solidarity, but in the preservation of social solidarity itself. In the case of modern Western society, the majority of the laws are not a collaboration of the collective consciences of society, but are rather a socially binding regulation of the various interdependent individuals which live within the society.

4. Implications of Durkheim’s place and function of criminal and civil law in modern Western societies

4.1 The issue of laws necessarily being linked to social solidarity

Perhaps the most provocative aspect of Durkheim’s theory is his argument that laws must link to social solidarity as a whole – either through the collective conscience or as a social regulation of different individual’s functions. This inevitably leads one to question whether, in linking the creation of laws to social cohesion, every member of that society necessarily benefits from such laws. Or, put another way, one must question whether Durkheim’s placement and function of criminal and civil laws provides a social benefit, as opposed to merely facilitating social cohesion. As Thomas has argued, Durkheim viewed moral and legal codes as coextensive and, by definition, socially beneficial. Both of these assumptions may be false.’[33] Both criminal and civil law will now be considered.

4.2 A lack of social utility in a penal code drawn from the collective conscience

As discussed, for Durkheim, we punish in crime because it intensely offends moral sentiment. Without such punishment, there is social disintegration – we are not solidary because our morals essentially do not unite. However, one must ask whether there is a utilitarian value in punishing criminals based simply on the intensity of moral offensiveness their action produces. Hart asks this very question, and provides examples of situations in which we punish based on moral offensiveness, despite the fact such a punishment seems counter-intuitive to the fluid operation of society.[34] Thus, a crucial problem arising from defining crimes based on social sentiment is that it allows criminalisation of that which offends the majority sentiment, even when the ‘crime’ in question may not impact social solidarity as a whole. This limits the potential for liberal changes in a society, and, in fact, can cause the exact opposite of Durkheim’s notion of ‘social progress’ which the penal law is supposed to facilitate. As Hart argues, ‘the decay of all morel restraint or the free use of violence or deception would not only cause individual harm but would jeopardise the existence of a society… On the other hand the decay of moral restraint on, say, extramarital intercourse, or a general change of sexual morality in a permissive direction seems to be quite another matter and not obviously to entail any such consequences of disintegration’ (Hart p. 9). The issue of basing criminal law on a collective conscience is particularly pertinent in modern Western societies. For example, in the controversial House of Lords case of Brown, freedom to express sexual practices was criminalised despite the fact such practices were mutually consensual.[35] In that case, Lord Templeman said ‘I am not prepared to invent a defence of consent for sado-masochistic encounters… Society is entitled and bound to protect itself against a cult of violence’.[36] The natural question arising out of such a view is how society is being ‘protected’ in an apparently victimless crime. It seems modern Western society does not necessarily benefit from penal laws determined by social morality, and as Hart almost prophetically argued in his critique of Durkheim, it is ‘an open and empirical question whether any particular moral rule or veto e.g on homosexuality, adultery, or fornication, is so organically connected with the central core that its maintenance and preservation is required as a vital outwork or bastion’. (hart p, 11) There is at least an arguable case that such rules do not constitute a vital element of solidarity. Thomas provides a potential answer, stating that Durkheim provides us with a ‘social barometer’. Thomas argues that ‘if an examination of a social act reveals both that we are punishing only to solidify our collective conscience and that the result is socially destructive, we can attempt to change our path. This may be neither easy nor probable, but it is possible.’ (Thomas at 67). Though optimistic, Thomas’ view seems improbable given Durkheim’s strong focus on the imposition of social values on the individual, and not the other way round. This makes it unlikely society could simply change its path, as suggested. Thus Durkheim may be said not to have discovered the ‘true place’ of criminal law, or at least not as it is most useful to all of those in the society to whom it applies.

4.3 The social utility of civil laws which are designed to recognise the individual

Durkheim’s characterisation of civil law is of a different ilk to criminal law, and for this reason provides greater social utility by catering to the widest possible range of individuals in society. Rather than imposing a majority sentiment on the minority, the object of restitutive law is to recognise the individual in a specialised way. Durkheim acknowledges this, arguing that by virtue of a greater proportion of restitutive law, modern Western society ‘does not result in making the sphere of individual activity smaller… if society no longer imposes upon everybody certain uniform practices, it takes greater care to define and regulate the special relations between different social functions’.[37] That is, Durkheimian civil law is able to simultaneously bind individuals together while also recognising their differences and, crucially, protecting them. This, as Perrin argues, makes the individual ‘a sacred unit in a society of specialists; he has dignity and worth and talents that should be developed to their fullest extent.’[38] (Perrin p. 11). In a modern context, this recognition of the individual manifests itself through the multitude of human rights, consumer protection, and anti-discrimination laws, to take only two examples. Rather than relying on a collective conscience, Durkheim has provided a place and function for the civil law which allows it to work as best it can towards preservation of individual rights. This essentially means that the aforementioned issues associated with criminal law’s arguably unfair imposition on the individual are not allowed to creep into the sphere of civil law. Thus for his placement and function of civil law in our modern society, Durkheim is to be commended.

5. Conclusion

This essay has shown Durkheim arguably did discover ‘society’ in as much as he was the first social theorist to identify it as a uniquely examinable entity, rather than as a group of individual traits. Further, it has shown that for Durkheim the placement and function of criminal and civil law is in terms of the measurement and upholding of two different (yet not mutually exclusive) kinds of social solidarity. Finally, this essay has shown there are particular issues with Durkheim’s conception of criminal law. This problem does not appear as prevalent in the case of Durkheim’s placement and function of civil law, which ultimately forms the majority of laws in modern Western society. In this sense, Durkheim’s theory provides a strong framework by which we may analyse not only society in general, but the importance of individual cohesion in that society, and, importantly, how the law facilitates this. This makes his ‘discovery’ of society, and his placement and function of the law therein, a highly useful tool.

References:

Law and Social Reader

Brown [1994] 1 AC 212

ARTICLES I HAVE READ AND USED:

Hart, H. L. A “Social Solidarity and the Enforcement of Morality”

Perrin, R. “Emile Durkheim’s ‘Division of Labour’ in the Shadow of Herbert Spenser”

Thomas, J. W. “Social Solidarity and the Enforcement of Morality Revisited: Some Thoughts on H. L. A. Hart’s Critique of Durkheim”

ARTICLES I HAVE (but haven’t used):

Gibbs, J. “A Formal Restatement of Durkheim’s ‘Division of Labour’ Theory”, (2003) à read but not used

Lehmann, J. M. “A dialectical response to Levine’s “French Tradition””, Sociological Quarterly v42 i1, Winter 2001.

Norman Smith, D. “Anomie, Solidarity and Conflict: French Sociology and the Limits of Dialogue”,  Sociological Quarterly  v42 i1, Winter 2001.

Some of Robert’s recommended reading:

Cotterrell, R. Emile Durkheim: Law in a Moral Domain, Edinburgh, Edinburgh University Press, 1999.

Lukes, S. Emile Durkheim: His Life and Work, Harmondsworth, Penguin, 1973.

McIntyre, L. J. Law in the Sociological Enterprise: A Reconstruction, Westview Press, Boulder, 1994. see 80 and 82

1A. Is simply using the ratio of juridical rules as a measurement of social solidarity really enough?

[From above] Durkheim proposes that by measuring the proportion of juridical rules (restitutive versus repressive), we can determine whether a society is by-and-large mechanically or organically integrated. Is the proportion of these laws enough to determine the solidarity of the society, or are there other factors at play? Can’t you have more repressive laws AND heterogeneity? Or more restitutive laws AND homogeneity?

To what degree does the solidarity produced by the division of labor contribute  to the general integration of society? This question was important because only by answering it could Durkheim determine whether  this form of solidarity was essential to the stability of advanced  societies, or was merely an accessory and secondary condition  of that stability; and it was difficult because an answer required  the systematic comparison of this form of solidarity with others,  in order to determine how much credit, in the total effect, was  due to each. Such a comparison in turn required a classification  of the various types of solidarity to be compared, and here Durkheim  faced one of the most formidable obstacles to his science of ethics:  the fact that, as a “completely moral phenomenon,” social solidarity  did not lend itself to exact observation or measurement.

Durkheim’s way of surmounting this obstacle was to substitute for this internal, moral fact an “external index” which symbolized  it, and then to study the fact in light of the symbol. This external  symbol was law — i.e., where social life exists, it tends to assume a definite,  organized form, and law is simply the most stable and precise  expression of this organization. Law reproduces the principal  forms of solidarity; and thus we have only to classify the different types of law in order to discover the different types of solidarity  corresponding to them.

PETER’S NOTES:

Since law reproduces the social solidarity of the society, D suggests that the law can be used to find the nature of the social solidarity. It is an index of solidarity, both as to type and as to level or extent. Thus, we can look at how much of the law is civil, and how much is criminal, in order to determine whether a society is by-and-large mechanically or organically integrated. A mechanically integrated society will be one in which criminal laws are more important (Durky puts it less subtly, suggesting that you can count up the number of criminal laws – p. 181).

  • There are many reasons to disbelieve the Durky view. Empirically it simply doesn’t stack up. The basic proposition, however, which is that simpler societies are held together by stronger consensuses, which should express itself in the criminal law. Restitutive law plays a role in equilibriating a differentiated society. Durky’s view is unfortunately fairly empirically unsatisfactory, but it makes a lot of sense from an intuitive (western) point of view.
  • One of the major uses of the law as an index of social solidarity in Durkheim’s early writing is as a means of measuring the relative strengths of the forms by direct, almost mathematical implication from the proportions of the statute-books taken up by repressive and restitutive law respectively.[39] The crudest form of this view is later abandoned and Durkheim accepts that the volume of criminal and other repressive law relates to the authoritarian character of the régime as well as to the relative strengths of the different solidarities.[40] Nevertheless, the two forms of solidarity are held in balance throughout Durkheim’s writing, and it is through the examination of this balance and the relationship between the balance extant at any particular time and the forces that act to maintain it that Durkheim seeks to find solutions to social pathologies.[41]

1B. Can you have division of labour leading to heterogeneity in an economic sense, but still have homogeneity in the normative sense?

What are the structural principles distinguishing modern/premodern (archaic/nonarchaic)?

  • Archaic societies are fairly simple. There is little horizontal hierarchy, there is or may be no state, and the society is bound together by sameness or identity – mechanical solidarity
  • This mechanical solidarity is gradually supplanted by organic solidarity, where difference sets in and is reintegrated by the principle of interdependence.
  • When people become too different from each other you can’t just put the puzzle back together by forcing them to be the same. You have to foster unity by interdependence.
  • These differences tend to set in along both the economic and the symbolic/normative dimensions at the same time. Indeed, you could argue, and it will get you lots and lots of marks, that it is the symbolic/normative dimension that is more important, because it is possible for society to be very economically differentiated (as by the progress of science and technology) but not necessarily very differentiated along the symbolic dimension (eg modern theocracies such as Afghanistan or pre-war Imperial Japan.

–          Contrast to Marx

Question 4 – the early Marxists argued that social institutions can be remade by humans acting together. Is this Durkheim’s view?

See p3, middle of the page:

  • Solidarity spontaneously arises out of human interaction. It is not created by humans. It is emergent.
  • The one sentence that we rely on is: “Hence, we are the victims of an illusion which leads us to believe we have ourselves produced what has been imposed upon us externally.”
    • And the biggest victim is Marx.
    • External imposition of social structures is not alienation, not reification. It is the very nature of the social itself. As a result you accept the autonomy of the social and you work with it.
    • If you try to destroy social phenomena you cause catastrophe. If you decomplexify the world you cause collapse. The example is Pol Pot, Year Zero.

Everything is connected to everything else. If you tear down anything, you can’t predict the consequences

– Society constrains us, not the other way round. What about Kant, the individual, etc.?

Words

  • Social solidarity is made up of a range of different social elements, like the law and the market.
  • These elements, that make up the social, are themselves composed of social interrelations, that is, they are the product of intersubjectivity.
  • Intersubjectivity is the vibe that happens when individuals come into contact, the realm that arises upon the interaction of two or more psychical worlds.
  • The really important point to get about intersubjectivity is that it is not causally or reducibly or reversibly related to the subjectivities that give rise to it.

 


[1] Reader p. 139. Further definitions of a ‘social fact’ are given by Durkheim on p.144, yet these are not substantially different from the passage quoted.

[2] Reader p. 138

[3] Reader p. 146

[4] Reader p. 141

[5] Reader p. 140

[6] P. 142. ‘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.’

[7]  (reader p. 142 – 143)

[8] For example, the Indians of North America.

[9] Reader p. 174 – 175

[10] Reader p. 183

[11] Reader p. 178

[12] Reader p. 179

[13] Reader p. 183

[14] Durkheim p. 64, which is not in the reader. P. 65 of Durkheim is in reader p. 148. [FIND A REFERENCE YOU CHEAT!].

[15] Reader p. 148

[16] Reader p. 148

[17] Reader p. 148

[18] Reader p. 149

[19] Reader p. 181

[20] Reader p. 181 – 182

[21] Reader p. 185

[22] Reader p. 156

[23] Even in modern Western society, Durkheim argues that ‘far from there being cause for congratulation when it [crime] drops too noticeably below the normal level, this apparent progress assuredly coincides with and is linked to some social disturbance’. P. 158

[24] Reader p. 158

[25] Reader p. 158

[26] Reader p. 182

[27] ‘There is a type [of law] which symbolises this special solidarity of which the division of labour is the cause. That found, it will suffice, in order to measure the part of the division of labour, to compare the number of juridical rules which express it with the total volume of law’ (p. 181). Hart labels this notion of ‘merely counting’ laws ‘somewhat fantastic’ (p. 6 – Hart)

[28] Reader p. 188 – 189. ‘It does not seek to discover what may be the most advantageous solution for the adversaries and does not propose a compromise for them’ – p. 188

[29] Reader p. 182

[30] Reader p. 152. Emphasis added.

[31] Reader p. 188 – 189.

[32] Reader p. 188

[33] Thomas at 55

[34] For example, we punish those ignorant of the law; we imprison murderers even though they are less likely to commit the offence again; and similarly release robbers who are more likely to re-offend. (Hart p. 7)

[35] Brown [1994] 1 AC 212. House of Lords case in which a group of men who engaged in consensual, sado-masochistic, homosexual activities were held to be guilty of sexual assault due to the social offensiveness of the actions.

[36] Brown at 236 – 237

[37] Reader p. 214

[38] Perin p. 11. Perrin later links the importance of the individual in Durkheimian civil law to the division of labour, arguing ‘moral individualism is the cultural correlate of the structural reality of economic specialisation.’

[39] LSM II at 55: “it will suffice, in order to measure the part of the division of labour, to compare the number of juridical rules which express it with the total volume of law.”

[40] Durkheim, Two Laws of Penal Evolution.

[41] In relation to the fundamental role of the mechanical/repressive, see n30 above. In relation to the restitutive/organic, see LSM II at 78-79.


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