0% found this document useful (0 votes)
20 views17 pages

Chapter 2 & 3 - Mathew - DFLAM

Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
0% found this document useful (0 votes)
20 views17 pages

Chapter 2 & 3 - Mathew - DFLAM

Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
You are on page 1/ 17

Max Weber is considered the founding father of modern sociology of law.

He observed that
social life in the modern era had become more rationalized, focusing on the central role of
economy, state, and bureaucracy, as well as the role of law as the basis of modern political
authority. Weber outlined the characteristics of a formally rationalized legal system guided by
procedures. His analysis of law is an intrinsic part of his sociology, providing a
comprehensive perspective on the study of society and theoretical propositions on the
conditions of modern society. Weber developed his perspective on law as part of a more
general sociology, which is rivaled only by that of Emile Durkheim. This chapter situates
Weber's sociology of law in the context of his sociological approach and theory of society,
allowing for a better understanding of his contribution to the study of law and contrasting it
with Durkheim's thought as the two most fundamental contributions to the sociology of law.
Max Weber was a renowned sociologist who studied law, economics, and other social-science
subjects at the University of Berlin. After completing his studies, he briefly became a lawyer
and then began teaching. He later taught economics at the University of Freiburg and the
University of Heidelberg. Weber's teaching activities were reduced due to nervous illness, and
he stopped teaching altogether in 1899. After a few years of rest and travel, he resumed
writing and involvement in political and social affairs. In 1918, he became a professor in
Vienna and Munich
Weber's sociology is based on a perspective of society as being made up of social relations or
human interactions. Interactions between actors are guided by their motivations and
intentions. In contrast to behavior, human interaction is intrinsically subjective and
meaningful. The task of sociology is to understand human conduct as meaningful as possible,
and the procedure associated with uncovering the motives of action is known as
understanding (Verstehen).
Weber also focused on formulating general principles of social action, arguing that by
understanding human action, sociology can also explain its course and consequences. The
method of understanding is not subjective, as it relates to the motivations and intentions of
the actors involved. Although understanding motives and meanings requires an emphatic
attitude, sociological techniques to grasp meaning are replicable.
Interpretive sociology is a sociological perspective that focuses on understanding human
interactions through direct observation of emotive actions and identifying motivational links
between meaning and action. Weber's doctrine of value-freedom emphasizes the objective
nature of interpretive sociology, which distinguishes between subject (action) and object
(behavior) and between social and natural sciences. Sociologists can make scientific
judgments on the rationality of means given certain ends, allowing them to determine the
principles on which certain attitudes and actions are based.

However, sociology also has a special connection with values, as it relates to subjective
interactions. Weber argues that all scientific activity rests on certain ideals or viewpoints that
cannot be justified scientifically, such as the selection of relevant facts from reality. This
identification must be selective, verifiable, and conducted on the basis of systematic methods.
To avoid psychological reductionism and the disorder of individual-level findings, Weber
developed the perspective of the ideal-type. Interpretive sociology is distinct from subjective
interpretation by the researcher, as it is objective and verifiable based on established
standards of methodology. This perspective ensures that sociology is not influenced by
personal values or subjective interpretation.
Sociological interpretation involves identifying a particular motive of conduct within a
broader frame of normativity. This means that for any human action to be sociologically
interpreted, it must have a motive that makes sense to the actor as a member of a society or a
subsection thereof, within its distinct culture, structure, norms, and expectations. For
example, praying on the occasion of a personal tragedy can be sociologically elucidated as
religious conduct and differentiated from other human action based on different normative
orders, such as science and law.
Ideal-types are constructed by abstracting and combining a limited number of elements from
reality to open up the chaos of empirical events to description and understanding. They are
analytical and only through application can an ideal-type be found to be useful or not. For
example, Weber differentiated four types of human interaction: traditional action, affective
action, value-rational action, and purposive-rational action.
Weber's ideal-typical construction of action also forms the basis of an important observation
on the course of modern society, showing that modern societies are marked by an increasing
influence of purposive-rational action and a relative loss of traditional action. More and more
aspects of modern society, be it political, economic, or cultural, are marked by a predominant
reliance on purposive-rational action.
Weber's theory of social stratification distinguishes between classes based on economic
ownership, class, status, and party. Class is defined by shared economic interests based on
property and income, status groups are culturally determined by honor and prestige, and
parties are united in terms of political power and domination. Weber does not conceive of
economic conditions as more basic than other societal forces, nor does he agree with the
inverse theory of cultural idealism that values determine the material forces of society.
Instead, various societal processes and conditions may share similar characteristics and
developments, mutually influencing and reinforcing one another.

Weber argues that modern societies are marked by a high degree of purposive rationalization,
which is also known as formal rationalization. This type of rationalization is more important
than the substance or goal of action, and efficient calculations are made to reach certain ends
in various spheres of social life. This theory applies to many important societal institutions,
including science, politics, culture, and law. Weber's famous study on the Protestant ethic
suggests an elective affinity between the ethic of Calvinism and the mode of capitalist
conduct to use the most efficient means to achieve certain goals.
Calvinist belief in the divine grace of a finite number of people is based on the belief that
work in the material world is the highest positive ethical attitude. This belief supports
capitalism, but once it is established, its religious core is no longer relevant, and economic
rational conduct of life becomes an independent power. Weber argues that a more complete
explanation of capitalism should also investigate how Protestant Asceticism was influenced
by the totality of social conditions, especially economic.

In the context of modern societies in the West, Weber applied the rationalization model to
various dimensions of society, including politics. He distinguishes three kinds of political
power based on the kind of legitimacy it enjoys: traditional authority, charismatic authority,
and rational-legal domination. A state is a political community that claims a monopoly over
the legitimate use of physical coercion within a particular territory. Weber's definition is
instrumental, defining the state solely with reference to its means.

A state also exercises political authority within a particular territory through armed protection
against outside attacks, the protection of vested rights, the cultivation of cultural interests, the
enactment of law through legislation, and the protection of personal safety and public order.
Purposive rationalization is crucial in demonstrating the relevance of purposive
rationalization in the administration of various state functions.
Weber's theory of the state is closely linked to his sociology of law, as domination in the
modern state is legitimated by legality. This legality is exemplified in the bureaucracy, which
is governed by formal procedures and a system of law. Bureaucracies are specialized
institutions designed to implement state policies and ensure the efficient functioning of the
state and market economy. They are subject to a principle of fixed jurisdictional areas, are
firmly ordered in a hierarchy of positions, and work is based on written documents or files.
The executive office is separated from the household, and bureaucratic positions require
specialized training. Bureaucratic activity is a full-time job, and management is guided by
general rules that can be learned.
Weber argues that bureaucracies take on this specific form in modern capitalist societies due
to the division of labor and a high degree of specialization. They are typically stable and
operate on the basis of formalistic impersonality and methodical discipline. As
bureaucratization increases, bureaucratic experts can take control of implementation and
political agendas, making the political master a dilettante against professional experts.
In conclusion, Weber's theory of the state is closely related to his sociology of law, as
domination in the modern state is legitimated by legality. The legality of rational domination
is found in the bureaucracy, which is governed by formal procedures and a system of law.
Weber's sociology of law is a systematic approach to understanding the social and legal
systems in society. It is influenced by his background in legal science, including his doctoral
dissertations on medieval and Roman law and his brief stint as a lawyer. Weber distinguishes
law from custom and convention, stating that custom is valid due to practical convenience,
convention is valid through informal public disapproval, and law is externally guaranteed
through a specialized staff responsible for compliance with legal rules and enforcement of
violations.
Weber's definition of law is sociological, specifying the actual conditions of law in society
without engaging in a juridical debate on its intrinsic validity. The only validity the
sociologist is interested in is that which derives from the subjective considerations of
community members. However, the belief in the validity of legal rules need not be shared
among all or many members of society. Instead, for there to be law, there must be a
specialized staff prepared to enforce these rules and enforce violations. This approach has
been largely embraced in contemporary sociology, with its focus on the subjective
considerations of community members.
Weber distinguishes between substantive and formal rationalization in law, focusing on the
two central aspects of lawmaking and lawfinding. In the substantive realm, lawmaking and
lawfinding are rational when they reflect general norms outside the contours of legal
principles and logical generalizations of law, such as ethical imperatives, ideological and
religious beliefs, and political maxims (natural law). In contrast, law is substantively
irrational when legal decisions are influenced by concrete factors of a case on the basis of
ethical, emotional, or political considerations rather than general rules (traditional law).
Weber also considers "khadi justice" (named after a judge in a Muslim court) as an instance
of substantively irrational law because its jurisprudence lacks consideration of general rules
and is exclusively based on the unique legal and extra-legal circumstances of each individual
case. In the formal realm, law is irrational when legal decisions are based on means which are
not intellectually controllable, such as in the case of oracles and ordeals. Oracles involve
proclamations of law that are judged to be divine or sacred due to the authority of their
source, usually a high priest. In a trial by ordeal, the accused is subjected to a painful task,
determining guilt or innocence (charismatic law).

In conclusion, Weber's rationalization of law is based on the principles of lawmaking and


lawfinding, with the latter being more irrational due to the lack of general rules and the
unpredictable nature of irrational law.
Formal rational law is a form of law that is based on general characteristics of the facts of the
case, exemplifying the disenchantment of the modern world. Weber argues that the
rationalization of modern law in Western societies takes on the specific form of formal
rationalization, which is formal and abstract. As societies grow and become more complex,
the quantity of law increases due to the need for specified legal rules in a more anonymous
and diverse society. This leads to an increase in the formal qualities of law, such as being
codified, impartial, and impersonal.
Formal rationalization in law is evident in the historical move from status contracts to
purposive contracts. Status contracts allow for changes in the position of parties involved,
while purposive contracts aim to achieve specific results or performances. Formal
rationalization in purposive contracts increases freedom by allowing people to make
calculations to predict the legal consequences of their conduct. However, formal freedom
legally guaranteed to all remains a formal matter, as inequalities exist in terms of economic
position or political rights.
Weber observes that formally rational law is typical for capitalist societies, but he argues that
the relation between modern law and capitalism is complex. Formally rational law and
capitalism tend to be influenced by the complexities of the modern world and the need for a
more transparent and equitable legal system.
The formal rationalization of law has been influenced by a combination of economic,
cultural, political, and legal conditions. Economically, the spread of capitalism contributed to
the development of private contract law, while modern law has also influenced economic
conduct through a rigorous system of adjudication. However, modern capitalism can also
thrive in less formally rationalized legal systems. Culturally, the secularization of law led to
the discarding of substantive irrationality and religious charisma, while politically, the
expansion of bureaucratic government benefited the formal rationalization of law.
The formal rationalization of law accelerated due to the increasing importance of professional
laypeople in courts. The training of professional lawyers is considered the most important
factor towards formal rationalization, and legal education in the European-continental fashion
of academic law pushes this forward. The drift towards formal rationalization of law is not
steady over time or evenly accomplished across modern societies. The European system is
more fully accomplished, based on codified laws, while the Anglo-American legal system
relies more on court decisions and precedents.

Historically, legal formalism has been challenged by the occasional resurgence of social law,
based on emotionally colored ethical postulates like justice and human dignity. There is thus a
tension between formal and substantive rationalization, as the technically rational machine of
modern law increases the substantive irrationality of modern law.
Weber's work has had a significant impact on modern sociology, particularly in the sociology
of law. His theories, which focus on the formal rationalization of modern law in the West and
the relation between formal and substantive (ir)rationality, have been a source of critique and
a source of theoretical foundation. Weber's ideas have influenced the study of authority,
economy, culture, and law, the separation of sociological and juridical viewpoints in law
study, and the stance on value-freedom in sociological inquiry. His work has also focused on
the form and consequences of modern rationalization.

Empirical research has primarily focused on Weber's thesis on the formal rationalization of
modern law in the West and the relation between formal and substantive (ir)rationality. These
interrelated questions are central to the empirical validity of Weber's quest to uncover and
explain what is unique about Western rationalization and modernity. Weber's theories contain
both comparative and historical components, situating Western law relative to other legal
systems and tracing the historical development towards modern systems of law.
Weber's interpretation of non-Western legal systems has been critical, with Robert Marsh
(2000) arguing that the traditional Chinese legal system of the Ch’ing Dynasty, which was in
place from 1644 until 1912, was substantively irrational. Marsh argues that the decision-
making powers of Chinese legal officials were limited due to a legal obligation to adhere to
written law, particularly secularly inspired sub-statutes. Judicial decisions had to be
accompanied by a citation to the relevant sub-statute of the Ch’ing code, which was based on
extra-legal ideological systems, specifically Confucianist values of social solidarity and
hierarchy.
Similarly, Weber's analysis of Muslim law or khadi justice has been argued to be
substantively rational, as it is based on the all-encompassing religious principles of Islam.
However, it has been argued that the Koran did not function as the basis for khadi law, but
legal specialists employed their own independent judgment and speculation to interpret the
ethical teachings of Islam and the words and deeds of the Prophet. The khadi legal system
was unstable and fluid due to the patrimonial context in which the law was administered.
Patricia Crone (1999) suggests that the key theoretical element might not be rationalization
but differentiation of societal objectives and their corresponding institutions, including the
separation of the political order (the state), the religious world (church), the order of
production and consumption (economy), and the organization of knowledge (science).
In Europe, the legal system develops as the state takes control of legislative functions, with
Islamic law embodied by religious values. The historical trend towards formal rationalization
of law has been debated, particularly in the area of criminal law. Joachim Savelsberg (1992)
argues that modern criminal law reform in the twentieth century involved substantivation,
which aimed to promote social reform, therapy, and rehabilitation. However, this process has
faced opposition due to disparities in sentencing outcomes and lack of due process. Attempts
have been made to reintroduce formal-rational law principles in sentencing guidelines.
Weber believed that calls for social law opposed formal rationality in law, but he also
assumed that calls for law as technique would ultimately prevail. However, Savelsberg argues
that the socio-structural conditions that brought about legal substantivation still exist and
hinder any return to formal rationalization.
Other scholars have suggested that the area of criminal law is essentially marked by
irrationalization, with modern criminal legal systems allowing for free decision-making from
case to case. This discrepancy is due to conflicting underlying principles, such as classical
emphasis on deterrence and interventionist notions of rehabilitation. Ronen Shamir (1993a)
also points out problems with the empirical basis of Weber's theories, arguing that his
conception of the legal system is flawed.
The evolution towards formal rationality in law has been influenced by the case of German
law, with precedents and legal decisions in the United States serving as a basis for
rationalization. This shift occurred during the New Deal era of the 1930s, leading to a
substantivation of criminal law and renewed attempts at formal rationalization. This suggests
the value of a cyclical perspective of formal and substantive rationalization.
Sociologists of law have also theoretically engaged with key ideas in Weber's work,
interpreting and commenting on the value of Weber's work for the sociological study of law.
One of the most discussed themes is the Weberian conception of the relationship between
formally rationalized law and the development of capitalism. Weber argued against a Marxist
interpretation of law as an instrument of capitalism, but suggested that the formal
rationalization of law, due to its reliance on calculability, was a contributing factor to the rise
of capitalism.
Historical evidence suggests that the relationship between formally rationalized law and
capitalism is not always present, as seen in the case of British legal and economic
development. The theoretical literature has addressed this "England problem" in Weber's
work, with David Trubek (1972) pointing out that Weber himself is inconsistent in making
three key points.
Weber's theory of law and capitalism has been criticized for its lack of formal rationality,
predictability, and exceptions. Some argue that British law promoted capitalism despite its
non-statutory nature, while others argue that it was a form of justice that favored the
bourgeoisie and was irrational for the poor. Some scholars argue that Weber never connected
economic rationalization with a formal-rational conception of legal thought, but with a
formal-rational mode of justice administration.
Assaf Likhovski argues that the England problem does not exist because Protestant influences
on British law during the seventeenth century included demands for legal rationalization and
increased predictability in law. Crone suggests that British law favored the bourgeoisie and
was formalistic for the rich, but substantively irrational for the poor, encouraging the
development of capitalism despite not being formally rational.
Weber's approach to law development is characterized by causal agnosticism, focusing on the
complex web of causal factors, convergence of factors, and constant relationships among
economic, political, cultural, and legal forces. This approach exemplifies Weber's notion of
multidimensionality, but also leaves his work open to charges of theoretical indecisiveness
and conceptual ambiguity. Despite these challenges, Weber's perspective confirms the
development of capitalism in the United Kingdom.
The tension between formal and substantive rationality in law and the potentially conflicting
relationship between legal and economic rationality is a significant issue in sociological
inquiry. Weber's work on the England problem is of more than just historical significance, as
it relates to theoretical considerations concerning the explanatory power of and relationships
among economy, politics, law, and other components of society. Weber's perspective of
multidimensionality has been interpreted differently throughout the development of
sociological theory, with scholars arguing for an underlying thematic unity in his work
despite its density and lack of homogeneity. Weber's work on causal relationships in matters
of law and society has been received differently, with some appropriating Weber's thought as
complementary with Marx, while others critique his ideas and stress the value of Weber's
conceptions of the relative autonomy of law.

Weber's perspective on value-freedom is oriented towards being uncommitted, while


jurisprudence is guided by a legal dogma related to practical concerns of legal professionals.
The tension in this perspective produces methodological difficulties, as much of his work
involves other, especially historical, factors. Despite Weber's explicit advocated interpretive
perspective of understanding, much of his work involves other, especially historical, factors
that complicate his understanding of the complex relationship between law and economy.
Max Weber's sociology is a significant achievement in social thought and is foundational to
modern sociology. His methodological orientation led to the development of interpretive
sociology and a multidimensional perspective of society. Weber's influence is immeasurable
in various specialty areas of sociological thought, particularly in political and economic
sociology. However, the less pronounced attention in modern sociology to Weber's work on
law is due to the general inattention paid by sociologists to law and the slow development of
the sociology of law as an academic specialty field.
Weber's work is indispensable to the sociology of law, as it offers important thematic
orientations on what is relevant to be studied. His focus on the regulation of interaction in the
form of rationalization through standard procedures and decision-making in lawmaking and
lawfinding on the basis of general principles has been of enduring significance.
Weber's approach to studying law sociologically emphasizes the relevance of historical time
in terms of a multidimensional conception of society. He also pays attention to the variable
patterns of these developments in different societies, such as in his work on the role of law in
the economy and politics.
Weber's sociology of law provides a comparative-historical perspective on the dualities of
law in the modern era, focusing on the differences between the US tradition of precedent law
and the European-continental emphasis on written law. Although influenced by legal
scholarship, Weber's work exemplifies a transition from legal to sociological thinking within
a lifetime, despite taking several decades to complete at the institutional level. The rise of
modern rationalized law is influenced by economic and political factors, as it is executed in
the state bureaucratic apparatus but also serves the free-market economy. Legally guaranteed
contractual freedom in the economic sphere leads to the free use of resources without legal
restraints, implying a reduction of coercion with prohibitory norms. Durkheim's work
addresses the sociological treatment of the particular conditions of the relation between
modern law and the capitalist economic order.
Emile Durkheim is a notable achievement in the institutionalization of sociology as an
academic discipline. His sharp formulation of the material and formal subject matter,
innovative methodology, and ability to build a sociological school of thought make him an
unparalleled figure in the field. Durkheim's sociological project, particularly his contributions
to the study of law, is widely recognized among sociologists. His analysis of law in the moral
foundations of the division of labor is well-known, and he used the evolution of law as an
indicator of changing moral foundations of society. Durkheim's central concern is to show
that modern society is characterized by solidarity that preserves individualism. His sociology
of law also incorporates an innovative approach to the study of law, recognizing that the
normative dimension of society enables both evaluative and scholarly perspectives. Law is
intimately connected to social norms and a society's moral understanding, and few insights
are more central in the sociology of law than the connection of law with the function of social
integration.
Emile Durkheim, a renowned philosopher and professor, was a key figure in the development
and institutionalization of sociology as an academic discipline. He was influenced by Auguste
Comte's work on the positive science of society and the German tradition of moral statistics.
Durkheim viewed sociology as the scientific study of social facts, which are ways of being in
society that are coercive over and external to individuals. These facts include ideal
representations like culture and law, as well as material circumstances and actions like
demographic and economic conditions.

Social facts are coercive over individuals because their conditions cannot be violated without
consequence. In ideal representations, sanctions are indicative of the coercive force of social
facts, such as punishments for breaking laws or public disapproval over norm violations. In
terms of material conditions, social facts have a relatively mechanistic coercive power
because they are based on the observance of norms and laws. Durkheim's work was
influenced by the work of Auguste Comte and the German tradition of moral statistics.
Durkheim's sociology focuses on the coercive force of social facts, which can be identified
and studied through observable sanctions. Social facts are external to individuals and cannot
be reduced to their individual manifestations, which are both social and unique to each
member of a society. Sociology is based on the maxim that social facts must be considered as
things, discarding all preconceived notions about society. Sociology must be conducted from
a value-free framework to objectively study society as a moral order.
Sociological definitions of social facts are based on the observable dimensions of the
phenomenon under investigation, such as crime, which is classified as behavior that receives
punishment. Sociologists must isolate social facts from their individual manifestation to study
objectively without too much variation from one individual case to the next.
The empirical study of social facts in Durkheim's models proceeds from describing types of
societies in terms of degrees of complexity to their explanation in terms of cause and
function. The function of a social fact refers to the purpose it fulfills, while the cause must be
located historically in an antecedent factor. Sociology cannot be reduced to psychology, as
society cannot be reduced to individual-level ways of acting.
Sociological functions and causes are social and cannot be retrieved in the individual psyche.
Once cause and function are identified, a sociological method of proof by comparison can be
conducted. This method compares cases where two social facts are simultaneously absent or
present, providing evidence that a fact (cause) led to another fact (effect). Durkheim applied
his sociological methodology to study important social facts, such as suicide, religion, and the
social division of labor. His work on the division of labor, first published in 1893, contains
his basic theory on the evolution and nature of society, including the transformation of law.
The central purpose of Durkheim's work is to construct a science of society as a moral order
and discover empirically how social solidarity is maintained in modern society despite the
growing autonomy of the individual. Durkheim argues that the division of labor is a result of
a more encompassing evolution from mechanical to organic societies, where the conscience
collective or collective consciousness, defined as “the totality of beliefs and practices”
(Durkheim, 1893), is the primary source of knowledge.
Durkheim's theory of social solidarity posits that solidarity is achieved through similarity, as
collective practices and beliefs in mechanical societies are shared by all members. This
solidarity is perceived as a threat to the entire social order, even when it pertains only to one
member of the group. Durkheim argues that mechanical societies evolved into organic
societies, each with specialized roles and rights. The collective consciousness in organic
societies is based on distinct roles and contributions, and violations of the collective
consciousness are treated as offenses by individuals against individuals.

Durkheim's theory presents a radical alternative to historical materialism, arguing that two
conditions must be fulfilled for the transformation from mechanical to organic societies. First,
demographic developments must occur at the demographic level, resulting in increased active
exchanges among individuals and a higher social volume. This leads to a division of labor
and increased competition among people, leading to migrations. However, once certain
boundaries are met, migration is no longer possible, and society differentiates internally,
resulting in interdependence among its members.

In conclusion, Durkheim's theory of social solidarity demonstrates that while modern society
is different from traditional societies, it is still socially and forcefully stronger than the
solidary bonds of old.
Durkheim's theory of law emphasizes the importance of law as a manifestation of the
collective consciousness and its transformation. He argues that the division of labor, which is
regulated in a way that secures individual variation and social solidarity, only produces
organic solidarity under exceptional circumstances. These circumstances include an absence
of rules regulating social relations or economic-material inequalities. Durkheim argues that
the pathological consequences of economic life are determined by its regulation or lack
thereof.
Sociologists of law can rely on Durkheim's insights on law in his study of the division of
labor and subsequent studies. Durkheim conceived of law as the most important observable
manifestation of the collective consciousness and its transformation, as it is “an essential part
of the social order.” This is because the collective consciousness is “an essential part of the
social order” and its regulation or lack determines its consequences.
Durkheim's theory of law emphasizes the role of law as a symbol of social solidarity,
focusing on the types of sanctions applied to violations of legal rules rather than juridical
distinctions. He argues that law serves as an indicator of social solidarity, particularly the
evolution of law from a repressive to a restitutive system.
Repressive law in mechanical societies represents strong unity among members of a cohesive
unit, often religious in nature. Infractions against these rules are severe and punishable, often
through banishment or death. In organic societies, there is a differentiation between
restitutive and repressive law, with legal regulations being more abstract and general,
applying universally to all individuals without leveling differences among them. Contract law
allows for specification of relations among individuals, while the state only acts to oversee
mutual obligations.
In organic societies, law is secularized and highly codified, with sanctions applied to
violations of restitutive law aimed at restorating social relations. Criminal law still serves
repressive functions in organic societies, but the growth of civil law indicates the rise of
restitutive law. Durkheim believes that the increasing relevance of restitutive forms of law,
which accompany the development of the division of labor, ensures the continuity of social
solidarity.
Durkheim argues that the division of labor in economic life does not lead to social problems
or disorder under normal conditions. Instead, he argues that the essential function of the
division of labor is to integrate society. To achieve social solidarity in organic societies, rules
regulating cooperation among specialized functions and roles are necessary. Durkheim argues
that intermediary institutions, particularly professional groups, can aid in this function by
placing them between the state and the individual.

In his lectures on morality and law, Durkheim focuses on the role of the state in creating
rights. He discusses professional ethics, the role of professional groups, the function and form
of the state, particularly the democratic state, and various rules and rights guaranteed by the
state. Durkheim also discusses the study of moral and juridical facts as observable
expressions of morals and rights. He believes that homicide and theft are the supremely
immoral acts, as they violate a morality that places the qualities of the individual above all
else.
Durkheim's discussion on property rights forms the basis of a sociological theory of labor
division and the role of the state in creating rights.
Durkheim's theory of property law posits that the nature of property has evolved over time,
with rights attached to it divided into three types: ius utendi (right to use), ius fruendi (right to
enjoy), and ius abutendi (right to use up). The ius utendi refers to the right to use things,
while the ius fruendi is the right to enjoy property products. However, neither right includes
the right to transform the property.
Private property is distinct from other individuals, as the powers attached to it are always
exclusive to the owner. Private property rights exist because they must be respected,
mirroring the evolution of religion. Durkheim argues that society as a whole endows property
with an exclusive right, which can be observed in contracts as the primary means through
which property can be transferred.
Courtese innovations in law were required as contracts evolved from real contracts, where the
contract takes place only when something is actually transferred, to consensual contracts of
agreement, which have a completely mental power of transfer. Consent must be freely given,
and the contract must be just in terms of objective consequences and be objectively equitable.
In conclusion, Durkheim's theory of property law emphasizes the importance of respecting
private property rights and the evolution of contracts in law.
Durkheim's work on law and punishment includes his central works on the division of labor
and lectures on law and morality. He contributed numerous essays and review articles on law
and crime to the Anne ́e Sociologique journal, including a study on changes in punishment
during the transition from primitive to modern society. Durkheim argued that punishment is
less intense in more developed societies with non-absolutist central power. In mechanical
societies, repressive laws regulate social relations, with the master-slave relation being
typical. Punishment is intense and includes corporal punishments and symbolic punishments.
Capital punishment exists in the form of public torture practices.

Durkheim recognizes that modern societies can still be absolutist, such as autocratic
monarchies and dictatorships, while being modernized in other respects. In temporary
absolutist societies, punishment can remain harsh and involve methods like public
executions. Durkheim considers absolutist modern societies not paradoxical to his theory on
the transition from mechanical to organic societies, as they are pathological rather than
normal developments. Under normal conditions of socio-historical development, modern
societies are democratic, and punishment is less intense. Laws in democratic organic societies
regulate relationships in society, making punishment less intense.
Durkheim's sociology of law is a significant contribution to the field of sociology. He argued
that punishment in modern society is typically a deprivation of liberty, with the prison system
becoming the dominant form of punishment in organic societies. This is because the prison
provides an individualized form of punishment and is purposively oriented at reintegrating
the individual back into society and restoring social relations. In mechanical societies,
violations of law were viewed as threatening to the collectivity as a whole, making
imprisonment unsuitable for reintegration.
Durkheim's work has had a profound influence on modern sociology, as it has contributed to
the development of a distinctly sociological perspective that focuses on the societal
constitution of social life in non-materialist terms. He turned to the study of law as an
observable indicator of morality, providing both a novel approach to the sociological study of
law and a theory on the evolution of law. In later works, Durkheim also studied the historical
transformation of the state, rights, and punishment.
Despite its limitations, Durkheim's sociology of law has had a significant impact on the
understanding of law and its evolution. His work continues to influence the field of sociology
and continues to shape the understanding of law and its role in society.
Durkheim's sociology of law has faced criticism for its unilinear development from
repressive to restitutive law and its associated changes in punishment. Robert Merton (1934)
argued that Durkheim relied on deficient ethnographic data and offered no basis for the
association between types of law and social solidarity. Research from numerous field studies
has shown that primitive societies, marked by a low degree of division of labor, possess
restitutive law, which Durkheim reserved for organic societies. Similarly, advanced societies
reveal important elements of strong communal interests.
A systematic study by Richard Schwartz and James Miller (1964) has implications for
Durkheim's sociology of law. They focused on three aspects of legal development: counsel,
mediation, and police, focusing on the function of police as associated with social
development, contrary to Durkheim's theory. Schwartz and Miller suggest that Durkheim
employed different criteria in measuring penal and non-penal legal systems, with repressive
law requiring relatively little organization, and restitutive law only requiring an elaborate
system of magistrates, lawyers, and tribunals.
Despite methodological concerns concerning the inference of historical conclusions based on
comparative data, the implications for Durkheim's theories of comparative studies similar to
Schwartz and Miller's have been addressed by several scholars.
Durkheim's theory of legal development has been criticized for not considering the strength
of a society's authority system, a political variable that was not considered in his original
work on the division of labor. Uprenda Baxi (1974) suggests that Durkheim's work can be
refined, suggesting that the absence of police may still imply other systems of enforcement
exist in societies. Schwartz (1974) argues that his study of legal evolution was not primarily
intended to prove or disprove Durkheim, but rather to compare the relative degree of
repressive and restitutive sanctions over a range of societies.
Sheleff (1975) argues that the actual development of law is the reverse of Durkheim's theory,
as primitive societies differentiate between religious and secular laws and exhibit legal
systems with reciprocal obligations. Modern legal systems contain many repressive aspects,
not only in traditional criminal law but also in areas concerning private behavior and religious
ethics.
Steven Spitzer (1975) finds that punitive intensity is inversely related to societal complexity,
but political absolutism varies with punishment in the direction Durkheim specified.
Collective definitions of deviance do not disappear as societies become more complex, but
offenses against collective objects are punished more severely. This association, however, is
not consistent across all societies.
Durkheim's theory of punishment has been criticized for its focus on societal value systems
and normative integration, neglecting the organizational dimensions of law as a system of
rules imposed by political authorities as part of systems of domination. Empirical studies on
legal and penal evolution have led to criticism that Durkheim viewed law and punishment too
exclusively as reflections of societal value systems, neglecting the organizational dimensions
of law as a system of rules imposed by political authorities as part of the instrumental
apparatus of systems of domination.
Theoretical models of law and punishment that are critical of some of Durkheim's argument
can still value the Durkheimian approach for its ability to analyze law and punishment in
close conjunction with the structural characteristics of society. However, more radical
interpretations argue that the problems with Durkheim's evolutionary sketch must have a
"domino effect on his work in general," justifying a dismissal of Durkheimian sociology or
leading to an extreme reinforcing of his work.

David Garland (1983) argues that criticisms of Durkheim based solely on empirical
examination of hypotheses derived from his work must remain modest on the theoretical
implications for an assessment of Durkheim's sociology. Differences between the concepts
used in Durkheim's work and the indicators employed in empirical studies can exist.
Durkheim's sociology of law has been a subject of debate, with various interpretations and
perspectives. Some argue that Durkheim's approach is influenced by the development of the
modern sociology of law, while others view it as a theoretical differentiation. Durkheim's
work has been selectively reviewed, focusing on his book on the division of labor and not
incorporating his later works on law, rights, and punishment. Additionally, some legal
specialists and law professors associated with the Année Sociologique have contributed to his
work.
One of the most discussed theoretical elements in Durkheim's legal sociology is the
conceptualization of law and state as reflective indices of a society's value system. Durkheim
acknowledged that the state and legal system also contributed to forming collective
consciousness. However, these conceptions remain in tension in Durkheim's work. Roger
Cotterrell (1977) argued that the reflective nature of law only applies to the repressive legal
type, which can express the strong collective nature of mechanical societies, not the
restitutive type typical for organic societies. This interpretation overlooks that Durkheim's
conception of the reflective nature of law applies to the structure, not the individual, of a
society.
Durkheim's work on the division of labor aimed to construct a more encompassing theory of
integration, arguing that it is not the economic order itself but the collective consciousness
accompanying economic development that determines the degree of cohesion of society. In
organic societies, Durkheim argued that integration is not always achieved due to anomic
conditions of weak or insufficient regulation. Instead, he believed that intermediary
institutions, particularly professional groups, had to be placed between the state and the
individual to secure adequate regulation.

However, Durkheim's work also exhibited two problematic qualities. First, he did not draw a
sufficient distinction between values and norms, assuming that value systems produce distinct
normative patterns in unproblematic ways. Second, Durkheim did not always differentiate
and outline the connections between the state and the legal system. Some scholars have
argued that Durkheim overlooked power dimensions in the creation of legal systems,
especially in societies characterized by the development of a strong state.

A re-evaluation of Durkheim's legal sociology is necessary, particularly on the basis of his


views on the regulatory functions of the professional group. Durkheim was aware that the
state could be a less than efficient regulator and that the law could be a more effective tool for
promoting social cohesion.
Durkheim's legal sociology aimed to show that the structure of society influences the form
and substance of law. His studies were not primarily meant to construct an evolutionary
perspective on changes in law over time, but to organize the empirical characteristics of law
in terms of a theoretical perspective of society. The theoretical objective of Durkheim's work
serves to order the empirical manifestations of law, primarily relating to the social conditions
and changes taking place in the (organic) society of his days.
Durkheim's concepts of mechanical and organic society and the companion notions of
repressive and restitutive law can be viewed as ideal-types that can function as heuristic
devices to frame historical developments and comparative analyses. Even scholars who are
critical of some of Durkheim's contributions to the sociology of law recognize its value in its
analytical potential to link the law as a social fact with the extra-legal dimensions of the
organization of society.
The analytical positioning of law in society is the most fundamental component of any
sociology of law. Durkheim's work produced many findings that were and remain counter-
intuitive in light of the law's self-understanding and common-sense wisdoms about the nature
of law. Although it is clear that Durkheim views law as an expression of the structure of
morality and neglected the potential politicization as an instrument of power, it would be an
all too one-sided reading of Durkheim to conclude.
Emile Durkheim's sociology is foundational to sociology, with a methodological orientation
that is on equal footing only with Max Weber's work. Durkheim's methodological orientation
led to the development of a structural sociology engaged in causal and functional analysis,
demarcate the sociological study of society as a unique activity irreducible to other academic
enterprises, and his perspective of society as a moral social order with integrative functions
has served as an important source of inspiration and critique among modern sociologists.

However, Durkheim's work is generally given somewhat less prominence in the modern
sociology of law than Weber's. This differential reception relates to the fact that Weber was
more consistently and expertly involved in the study of law, not least because of his technical
background in law. Additionally, the Durkheimian emphasis on the integrative capacities of
law has not been as favorably received in modern sociology as Weber's multidimensional
perspective of rationalization. However, Durkheim's theoretical program appears to have
influenced and stimulated more empirical studies than Weber's work.

Dukheim and Weber are the two major foundational influences on a wide range of diverging
schools of thought. On a methodological level, Weber advocated an interpretive sociology
engaged in the unraveling of the motivations driving social actions, while Durkheim
advocated a structural-level analysis of social facts in terms of a causal and functional
analysis.
Weber and Durkheim were two prominent sociologists who contributed significantly to the
understanding of society. Weber's theory focused on the interplay of political, economic,
cultural, and other societal forces, while Durkheim's theory prioritized cultural influences and
material conditions. These diverging models led to Weber emphasizing rationalization
processes based on efficiency standards, while Durkheim emphasized the individualist nature
of collective consciousness. Weber's conception of law was based on its rationalization
processes, with modern law increasingly relying on procedure. Durkheim's focus was on the
integrative capacities of law in response to changes in societal value systems. Both Weber
and Durkheim provided foundational theoretical, methodological, and substantive insights on
society, which remain relevant in sociology, including the sociology of law.

You might also like