Durkheim: Division of Labour and Social Solidarity

Law as the visible index of solidarity

This is the chapter's core for this course, and it should be reproduced carefully.

The methodological move. Solidarity is a moral phenomenon and cannot be observed or measured directly. A science needs an external, visible fact that varies with it. Law is that fact: it is written, classifiable and countable, it covers the whole of social life, and it changes as the society changes. So the type of law in a society can be used as evidence of the type of solidarity.

Repressive law, corresponding to mechanical solidarity. Its sanction is punishment: the infliction of suffering or loss on the offender. Its characteristic field is what modern systems call criminal law. Its function is not primarily to deter or reform but to express and reaffirm the outraged collective conscience, which is why the reaction is proportionate to the offence to shared sentiment rather than to any measurable harm.

Restitutive law, corresponding to organic solidarity. Its sanction is not suffering but the restoration of things to their previous state: performance, compensation, restitution, the setting aside of a transaction. Its characteristic fields are contract, property, commercial law, procedure, administrative law and the law governing relations between specialised organs. Its function is to regulate the relations between the differentiated parts so that cooperation is possible.

The proposition: as the division of labour advances, the proportion of repressive law declines and that of restitutive law increases. A society's statute book is therefore evidence about the society, and the growth of contract, commercial regulation and administrative law in any industrialising country is Durkheim's prediction being borne out.

The claim is about proportions, not about disappearance. Criminal law does not vanish in a modern society, and Durkheim did not say it would. The claim is that it becomes a smaller part of a much larger body of law.

Crime and punishment, restated. Because punishment expresses the collective conscience, it follows that crime is normal, from [Crime and Social Deviance], and that punishment's audience is the community rather than the offender. This is the sociological account of why public reaction to a crime is so often disproportionate to its material consequences: the injury is to shared sentiment.

Anomie and the abnormal forms

Durkheim did not think the transition automatic or painless, and the abnormal forms are where his account becomes critical rather than complacent.

The anomic division of labour, where the relations between specialised parts are inadequately regulated, so that conflict rather than solidarity results. Industrial conflict was his example, and the remedy he proposed was regulation, through occupational associations and rules governing the relations between the parts.

The forced division of labour, where positions are allotted by inherited advantage or constraint rather than by ability and inclination. Solidarity requires that the division of labour be spontaneous, that is, that people occupy the positions their capacities fit them for; where birth decides, the arrangement is felt as unjust and produces conflict rather than cohesion. This is the most useful proposition in the chapter for an Indian answer, since a caste order is a forced division of labour in exactly Durkheim's sense, and it supplies a critique of caste from within functionalist sociology itself.

The poorly coordinated division, where specialisation exists without adequate integration and effort is wasted.

The remedy is not less specialisation but more regulation, which is a direct argument for labour legislation, professional regulation and the machinery of industrial relations.

Criticisms

1. The historical claim about law is contested. Later work argues that early legal systems contained a great deal of restitutive material, compensation for injury being ancient, and that repressive law grew with the state rather than declining, so the trend may run the other way.
2. Simple societies were not as homogeneous as he assumed, and the ethnography he relied on has not held up.
3. Law is an imperfect index. Not all solidarity is expressed in law, much law is never enforced, and taking the statute book as a measure of moral life assumes what should be shown.
4. He underrates conflict, which is the standing objection to functionalism in [The Functionalist Perspective]: interdependence can coexist with severe exploitation, and needing one another is not the same as being solidary with one another.
5. The two types are ideal types and no actual society is either, which he acknowledged and which limits the empirical use of the distinction.
6. The account of the modern collective conscience is thin. He held that it survives as the cult of the individual, and whether that can carry the moral weight he assigns it is doubted.

A worked example

Ask which parts of Indian law are repressive and which restitutive, and what the proportions suggest.

Repressive: the penal law, whose sanction is punishment and whose reaction expresses shared condemnation.

Restitutive: contract, the transfer of property, sale of goods, negotiable instruments, partnership and company law, insolvency, arbitration, the civil procedure by which all of it is enforced, and the whole of the modern regulatory apparatus, securities, competition, telecommunications, insurance and electricity, discussed in [Liberalization and Globalization].

The observation. The restitutive body is vastly larger and has grown enormously in the last century, while the repressive body has grown much more slowly. On Durkheim's account that is a measurement of the advance of the division of labour in Indian society, and it is a genuine, if rough, empirical claim about the society that a student can make from materials they already possess.

The complication, which should also be given. Indian law has simultaneously created a large body of new criminal offences, in regulatory statutes, in environmental law, in the protection of women and children and in economic offences. That growth of repressive law in a differentiating society is exactly what Durkheim's thesis does not predict, and the honest conclusion is that his direction of travel captures something real and that his account of criminal law's decline does not survive the twentieth century's use of penal sanctions to enforce regulation.

Quick revision

1. The Division of Labour in Society, 1893. The question: what holds a society together as its members become different?
2. Mechanical solidarity: likeness, strong and extensive collective conscience, submerged individual, little division of labour.
3. Organic solidarity: interdependence created by specialisation, weaker and more general collective conscience, developed individual, the cult of the individual.
4. The transition is driven by material and moral density.
5. Law is the visible external index of solidarity, because solidarity cannot be observed and law can be classified and counted.
6. Repressive law: sanction is punishment, expresses and reaffirms the outraged collective conscience, corresponds to mechanical solidarity. Restitutive law: sanction is restoration to the previous state, regulates relations between differentiated parts, corresponds to organic solidarity.
7. As the division of labour advances, repressive law declines in proportion and restitutive law grows. Criminal law does not disappear.
8. Abnormal forms: anomic (unregulated), forced (positions allotted by birth, which is caste), poorly coordinated. The remedy is regulation, not less specialisation.
9. Criticisms: the historical claim about law is contested; simple societies were not homogeneous; law is an imperfect index; conflict is underrated; the types are ideal types.

Test yourself

1. Distinguish mechanical from organic solidarity. Mechanical solidarity holds together small, undifferentiated societies through the likeness of their members, who do the same work, hold the same beliefs and are effectively interchangeable; the collective conscience is strong, extensive and precise, and individual personality is weakly developed. Organic solidarity holds together large, complex societies through the interdependence that specialisation creates, members doing different work and being unable to survive alone; the collective conscience is weaker, more general and more abstract, and individuality is required by the system rather than merely tolerated.

2. Why did Durkheim treat law as the index of solidarity? Because solidarity is a moral phenomenon which cannot be observed or measured directly, and a science requires an external, visible fact that varies with it. Law is written, classifiable and countable, it extends over the whole of social life, and it changes as the society changes, so the type of law prevailing in a society can be used as evidence of the type of solidarity that binds it.

3. Distinguish repressive from restitutive law and state the proposition connecting them to solidarity. Repressive law's sanction is punishment, the infliction of suffering or loss, and its function is to express and reaffirm the collective conscience which the offence has outraged; it corresponds to mechanical solidarity. Restitutive law's sanction is the restoration of things to their previous state, by performance, compensation or the setting aside of a transaction, and its function is to regulate relations between the specialised parts of a society; it corresponds to organic solidarity. The proposition is that as the division of labour advances, repressive law declines in proportion while restitutive law grows.

4. What is the forced division of labour, and why does it matter in India? The condition in which positions are allotted not by ability and inclination but by inherited advantage or constraint, so that people occupy places their capacities did not earn. Durkheim held that solidarity requires the division of labour to be spontaneous, and that where birth decides, the arrangement is experienced as unjust and produces conflict instead of cohesion. It matters in India because a caste order is a forced division of labour in precisely that sense, so the concept supplies a critique of caste from within functionalist sociology itself.

5. Does the Indian statute book confirm Durkheim's thesis? Partly. The restitutive body, contract, property, commercial and company law, insolvency, arbitration, civil procedure and the modern regulatory statutes, is vastly larger than the penal law and has grown enormously, which on his account measures the advance of the division of labour. But Indian law has simultaneously created a large body of new criminal offences in regulatory, environmental, economic and protective legislation, and that growth of repressive law in a differentiating society is not what his thesis predicts, so the direction of travel he identified survives while his account of the decline of criminal law does not.