Durkheim

How is Restitutive Law the external evidence of organic solidarity?As I review this blog entry, submitted and retracted last week, I find the task of answering this question quite daunting. How could this be? Simply because one needs to analyze Durkheim’s entire book The Division of Labor in Society, reading it not just once (my reality), and then attempt to capture what took him approximately 350 pages to elucidate in a cogent manner within a respectable amount of time. I foolishly read for two days, felt confident, and wrote a reasonable explanation. Or so I thought. However, as I continued to read others’ interpretations, I felt more than a bit uneasy. So, I began reading what was once read and added a few more readings. So, with this in mind, I shall commence writing.

Within organic solidarity, Durkheim believed that the individual becomes...well, more individual, while more connected to others via specialization in accordance with a greater division of labor. Durkheim explained that he must have an objective measure for us to understand and measure social solidarity accurately. He relied upon types of law for this explanation, dividing law into two arenas: repressive and restitutive. Another author mentioned in his writings that Durkheim used this measuring tool since it would be difficult to measure social solidarity internally (i.e. on an individual and psychological basis). If I remember correctly, Durkheim stated this in a different manner, and also contended that social solidarity held psychological and social dimensions. Of course, Durkheim is right. If social solidarity is not felt in the individual’s mind, then how can it be constructed and maintained across a particular society?

Before I go any further, I have to separate restitutive and repressive law along one dimension or I’ll lose the thought. Durkheim stipulates that repressive law has a specific behavior correlated with a specific punishment, whereas restitutive law may have a specific behavior or condition between two entities (i.e. it may not be an individual against the State as found within the guidance provided in repressive or criminal law) without a specific punishment. When I use the term “specific” I mean the behavior and the punishment are in written form and each “crime” is defined precisely in a code promulgated and disseminated appropriately to the population just as each corresponding punishment is also defined precisely in same code. If constructed accurately in accordance with intent (e.g. legislative), judicial decisions will reflect without deviation the punishment called for each crime. It is of course true that some laws are written with some discretionary judicial latitude allowed, however, even these available options have boundaries for the judicial branch decision. Restitutive law is not concerned with punishment, rather with reinstating the status quo or placing the pieces back the way they were, so to speak; restoring the greater, social equilibrium. Yes, private parties are involved, but the intent and practice goes far beyond the individuals involved. Second, it has an administrative nature to it, and has greater discretionary power attributed to the administrator. It is interesting that the State of Iowa has constructed a position within state government, the Administrative Law Judge (ALJ), that serves as a representative of both repressive and restitutive law, depending upon function. I served as an Administrative Law Judge in a prison for several years, and my decisional options may have been varied and expansive, but these were almost all repressive in that punishment was the result. (Naturally, punishment is not the only aspect to repressive law. However, it is noteworthy that some of the other aspects of repressive law seem to fit quite nicely {perhaps an odd term to use, yet quite appropriate in one sense}, such as the nature of the division of labor in a prison setting.) Of course, the punishments were not for revenge, but to alter behavior and provide for a safe environment for others. This is not to say that either goal was achieved or not achieved in each instance. However, I bring this up to point out that the use of the term Administrative in this case in a misnomer. I shall mention that it appears that most ALJs in the State of Iowa are involved in restitutive law, attempting to re-establish the status quo for the common good as well as to address the needs of those immediately involved.

The discretionary aspect is perceived as necessary given the individuality inherent to each circumstance or “case” in a restitutive environment. Of course, repressive law proceedings will involve complexities and individuality, but the fact that there is a sentencing phase bears out a distinctive quality from restitutive law. The administrative decision, which includes remedies instead of punishments, requires that all options and remedies be “on the table” and open as potential sources for redress. In this instance, the “judge” is not statutorily limited as one can be in repressive or criminal law in the meting out of punishment.

In addition, Durkheim distinguishes these laws by maintaining that repressive laws are proscriptive, stating behavior that is contrary to the common good and its correlative punishment; whereas restitutive laws stipulate “obligations”, setting out behavior that is engaged in between people and their social and business constructs and contracts. For instance, a marriage is set in motion by a legal contract (obviously not common law marriage, allowable in approximately 10 states in the U.S.), stipulating legal, contractual obligations, not what is contrary to the agreement with associated punishments for transgressions. I presume, if Durkheim is correct in today’s world, the same holds true for any contractual agreement. In working with a variety of agencies, public and private, over the years, and coming into contractual agreements, it appears that Durkheim’s assessment remains accurate. I have worked for many years under contract with many governmental agencies, and these contracts spoke to activities each agency agreed to engage in with stated objectives, outputs, and most importantly, outcomes for the community. Proscriptions for behavior that raised the ire of the “collective consciousness”, as Durkheim stipulated as perhaps one of two key components of repressive law (punishment as the other) did not exist within these contracts. No “deviant” (this term is not used to explain “criminal” acts since the term within this usage needs to explain all activity that simply deviates from the contract) behavior was mentioned as part of the contract, nor punishment.

Studying law within a society is measurable since it is codified. It is “visible” (Durkheim). Codification implies written form. Codification implies a social process has been undertaken by a society, imperfect as it may be. Codification implies an evolutionary process. Evolution implies a social consciousness that allows for “movement” in how a social attitude is personified; from the unwritten but pervasive, such as a custom, to the written and still pervasive, now a law. Can researchers study types of law in certain societies and extrapolate types of social solidarity? Durkheim states that to be certain of establishing the accuracy of social solidarity, the sanction associated with the law, whether restitutive or repressive, must be studied. The former is represented by a restorative justice model, returning social order to disorder. The later is punitive and represented by the infliction of injury to the perpetrator. Durkheim also points out the degree of emotion related to each type of law. Repressive law exudes emotion; a product of many societal attributes. Restitutive law begetting a more diffuse and obscure response.

Durkheim postulated that the more mechanical (i.e. simple) society will display: (1) a simple and less expansive division of labor; (2) greater similarity between people, their “worldview”, work-place skill levels, language, and social relationships; (3) greater “collective or common consciousness” development, usage, and punitive control; (4) a greater reliance upon tradition and religion to explain its origin and present-day viability; (5) a personality type that is “dependent on the collective” and weaker than the group personality type since group consciousness is necessary to control and guide individual behavior and the greater and stronger the uniqueness of character, the greater the differences between group members, and the weaker the strength of the “collective consciousness” to provide social solidarity within the society (i.e. the greater the collective consciousness the greater the mechanical solidarity); and (6) the use of punishment and fear (i.e. includes the importance of vengeance and the need to “circle the wagons” when an act threatens the common good), via repressive law.

Durkheim concludes mechanical solidarity ( and for that matter, organic solidarity) is a label or construct describing a type of social consciousness (including how relationships and order are achieved) explained via type of division of labor and determined by an examination of the dominant type of law in a society. Durkheim maintains mechanical solidarity societies are a result of a limited division of labor and a common consciousness and the use of repressive law as an instrument to maintain the solidarity. The limited division of labor inherently creates similarities and closeness. This, along with aforementioned factors translates into the cohesive social environment. In contrast, in an organic environment, the distinctions between persons lead to solidarity, but not through the same avenue; the “feelings” (e.g. in an absolute sense there is a feeling of “collective consciousness”, a societal mind-set in the mechanical, and a feeling for independence through the establishment/maintenance of boundaries through contractual agreements within the organic) created are different, and the mode of solidarity creation and maintenance is distinct as seen in the type of law relied upon. The distinctive feelings are a product of dependence (mechanical) and independence (organic) solidarity factors. Durkheim noted that Comte saw that the characteristics of the division of labor did not just generate a distinct form of economic mode of operation, instead, it generates “the most essential condition of social life”. Therefore, the division of labor dictates how we respond socially (i.e. “social order, harmony, and solidarity), both formally (e.g. restitutive versus repressive law) and informally (e.g. customs or “collective consciousness) (Durkheim). Law exemplifies this organization and accomplishes this with acuity and permanence.

In greater detail we find that Durkheim believed that penal law emanated from our Judeo-Christian religion foundation. All penal laws emanate from religion and God. Guidance from the Bible includes proscribed actions and punishments. God holds the highest authority “status” for the “collective consciousness” of the mechanical solidarity society. God is superior to all. To break a penal law is to violate the highest of all authority. The “collective consciousness”, found in a mechanical society, holds true to repressive laws with punishments and must protect its unity for social solidarity to survive. A transgression begetting “collective consciousness” ire (i.e. includes emotion) is a transgression against the highest authority.

Perhaps a good starting point to explain organic solidarity is with individuality. And, I can’t miss this Durkheimian point as he begins to explain how organic solidarity arises: “That individuality cannot arise until the community fills us less completely” (The Division of Labor in Society). Durkheim, logically follows with (paraphrasing): “If we have a strong inclination to think and act as ourselves, then we will obviously not think and act in a “group-like” manner”. He, I believe, then alludes to our individual psycho-social makeup, when he mentions that our “image”, and I am going to integrate self-esteem and social-social esteem, becomes a key point of development in an organic solidarity environment. When this occurs, and obviously Durkheim relates this morphological process to an increased division of labor within an organic solidarity environment, we, as individuals, move from a “collective being” to more of an individualized being. Next, solidarity ensues differently as the division of labor changes and individuals assume distant roles and duties in the workplace. As the individual assumes a workplace identity with distinct duties, individuality increases...a “personality” is formed. The greater the division (and specialization), the greater the reliance upon the greater social environment or society, as others specifically and others in general are needed to fill the gaps created by distinctions in work and outside of work. So, the personality grows as the work is divided, and as the personality grows through specialization in the workplace, interdependence increases along all other social dimensions, creating a distinct social solidarity that carries with it different needs, including a different type of cementing structure, to wit: restitutive law, with greater reliance upon cooperation and not conflict and separation found in punishment (e.g. prison, transportation, social degradation, death, and/or additional incarceration in secure settings after prison sentence culmination). (The idea of/with punishment is partially if not predominantly to find separation, fault, differences, illness or sickness (i.e. medical model), or moral deficiencies of the deepest nature between people in the absence of logic found in economic, political, sociological, and legal explanations.)

Durkheim notes that with individual development, we remain connected with one another through professional or vocational guidelines and standards. Therefore, the greater community remains a part of our individual conscious. It is not lost. It grows as each grows as the division of labor grows. This is the growth of organic solidarity as it replaces mechanical solidarity in that specific society. Durkheim equates this social development to the biological development of a species. As the species evolves, it requires greater division of function by body part (i.e. whether organ, limb, or sensate focus apparatus) to exist; from this analogy, Durkheim labels the social solidarity “organic”.

The use of a combination of these two types of law is commonplace across the globe. Within a mechanical solidarity environment individualism is impractical for the development of social solidarity. A collective consciousness dominates and controls. Within organic solidarity, the individual rises to the surface, and persons' activities and thoughts become complementary. When greater division of labor occurs, there is a corresponding change, and each type of law may be represented to a certain degree within a society. Time is a relevant variable in this change as well. Repressive law dominance is found in “lower” and slower developing societies, according to Durkheim. He maintains that unless a mechanical society is forced into change through the greater division of labor, all things move more slowly, tradition is dominant, the “common consciousness” remains strong and slow to change, repressive or criminal law does not change appreciably (few laws are added over time), and repressive law is so well engrained in the public psyche it is independent of the individual citizen’s life-circumstances…it is a part of the culture, a collective, intergenerational, psychological and social mind-set.

It is noteworthy that Dirkheim points out that authority, such as the State, may perceive crimes against it as more serious than the collective consciousness, and will take action as it sees fit. The authority receives power from the collective consciousness, yet takes on a separate role with “autonomy and spontaneity” (Durkheim).

Of course, Durkheim writes of a distinction between the two types of law. Repressive law is well ingrained in a specific society's social conscious; all know of the crime and the punishment; and there is a deep, emotional aversion to the behavior/crime leading to a punishment.Durkheim points out that "crimes" within a society as well as between distinct societies have an "essential resemblance". This common trait, as he describes it, is that each "strike(s) a moral consciousness of all nations". He recognizes that different behaviors represent different responses in different societies. This leads to variations in repressive law in regards to the defining of behavior as a crime or not a crime between societies and nation states. Once again, this time in his words, the "unchanging character" is not the "intrinsic properties" of the acts themselves or the corresponding punishments found in the penal codes, but in "some condition outside" the act, to wit, a "kind of antagonism" between the act and the "larger interests of society".

More later...