Durkheim’s ideas

on Law
THE DIVISION OF LABOUR IN SOCIETY
Law and Social Solidarity
Fundamental relationship between judicial rules and
social solidarity

The legal rules a society has and the way it punishes

offences and criminal transgression is a clue to the
system of solidarity and social cohesion
Judicial Rules

Body of social rules and prohibitions established by a

society

Two types-

◦ Unwritten – customary tradition- religious laws

◦ Written- law – legal reasoning
Sanctions

System of punishment related to offences

Acts which are considered by the society as

appropriate to punish a person
Types of Law

Penal law or repressive sanctions

Contract law or restitutive sanctions

Penal Law or Repressive
Sanctions

Found mostly in societies with high mechanical solidarity

and social cohesion
Straight forward intention to imposing harm and suffering
on the offender
Punishment is severe
Maintain social cohesion by setting examples by means of
punishment
Destruction of the offender and offense
Punishing an offender
No criterion of justice operates to ensure that punishment
fits the crime
This is done in two ways

◦ By reducing the social honour of the offender- imposing a

kind of loss or damage

◦ Depriving the offender of either freedom or their life

Cont..

Evident in many tribal societies having high social cohesion

Offending the practices associated with religion, customs

and traditions

Punishment directly on the body

Crimes

Acts which are particularly violent in nature and manifest

too much violent contrast between individuals and social
rules

Acts which offend, attack or in some way diminish the

common conscience
Cont..

Tendency to enlist collective force of society as a means of

carrying out punishment

◦ Striking back
◦ Public vindication

Origin in religion and religious beliefs

Contract Law or Restitutive
sanctions
Restitutive in nature- restoring things to their normal state that existed prior to the
offense
A central feature of restitutive sanctions is their ability to establish a criterion of
justice by ensuring that the punishment adequately fits the crime

Arises in industrial societies- organic solidarity

Modern law in advanced societies

Development in division of labour and the development of various legal

institutions
Central Characteristics

Directly concerned with the establishment of justice

Adequate punishment for the offence

Restoring things to the way they were before the offense took
place

Not emanating from the common conscience

Cont..
Developing rules which bind individuals with each other

Does not regulate or ensure the social cohesion directly- the

relationship between individuals

Specialised agencies / institutions

◦ Courts, arbitration councils, tribunals and administrative bodies

Specific functionaries- magistrates, lawyers and quasi –legal officials