Lecture 4: Durkheim Con't Flashcards
Causal relationship between repressive law and religion
- Repressive law is directly tied to religious morality
- Found in ancient societies like the Egyptians, Hebrews, and Indians
Durkheim’s view on penal law
- Penal law reflects respect for a superior, transcendental power, which is at the heart of religious sentiment
- Religion permeates legal activity and social life in societies with mechanical solidarity
Characteristics of repressive law
- Punitive sanctions: retaliatory responses to offences that assault the community’s religious and moral values
- Dominance of religion: religious beliefs underpin the community’s strong collective consciousness
- Repression is the prevailing form of legal activity in lower, traditional societies
characteristics of restitutive law
- Found in societies with organic solidarity
- Conciliatory, not punitive
- Aims to restore relationships and transactions to their previous state
- Addresses rights, duties, privileges, and immunities between individuals
types of restitutive law
- Civil law
- Commercial law
- Procedural law
- Administrative law
- Constitutional law
role of the state in restitutive law
the state is only tangentially involved, acting as an administrator rather than an enforcer of societal morality
significance of restitutive law
- Reflects the differentiated institutions, specialized occupations, and autonomy of individuals in modern, complex societies
- Fosters harmony and cooperation in modern societies, where individual rights and interdependence take precedence over collective morality
Durkheim’s two laws of penal evolution
- punishment and social development
- independent variables
punishment and social development
- More advanced societies -> less severe punishment
- Centralized political power -> more repressive punishment
independent variables
- Social development and political centralization are separate factors
- Social development has a greater influence on punishment than political power
historical examples of penal law
- Hebrews: democratic structure -> moderate punishments
- Egyptians, Syrians, Assyrians: centralized rule -> brutal punishments
Durkheim’s two laws of penal evolution key idea
severity of punishment depends on both societal advancement and the concentration of political authority
Durkheim’s principle of qualitative change
- Brutal punishments are replaced by incarceration
- Incarceration becomes the preferred punishment as societies progress and secularize
- Repressive law does not disappear entirely but becomes less violent and harsh
- New systems of punishment still retain their own severities
early use of incarceration
- Prisons were temporary holding places, not punishment centres
- Ex. Athens: Socrates detained while awaiting trial, 17th century dungeons
incarceration in the Roman republic
Jails like Lautumiae were minimally used, with lax security
incarceration in premodern societies
- Criminal responsibility was collective
- The offender’s clan or family could be punished in their absence
- Imprisonment was unnecessary in such contexts
Durkheim’s principle of qualitative change key idea
incarceration reflects the evolution of punishment, focusing on individual responsibility and more humane societies
shift from early to modern incarceration
- Collapse of authoritarian regimes led to prisons becoming places of long-term confinement
- Loss of liberty replace corporal punishment as the distinctive penal form
modern prisons as humane alternatives
- Torture and execution were abolished in favour of incarceration
- Prisons become necessary for punishment to evolve along more humane lines
prisons as the primary model of punishment
18th century: prisons established as the primary model of punishment
global interest in the American penitentiary system
- 1831: Alexis de Tocqueville and Gustave de Beaumont studied the U.S. penitentiary system
- Observed that Americans saw the penitentiary system as a solution to social problems
the evolution of prisons key takeaway
the prison emerged as a human and systematic form of punishment, reflecting the evolution of penal law in modern societies
Durkheim’s principles of penal evolution
principle of qualitative change & principle of quantitative change
principle of qualitative change
- As societies progress and secularize, incarceration replaces corporal punishment as the preferred penalty
- Punishment becomes less violent and more focused on the loss of liberty
principle of quantitative change
- Severity of punishment depends on level of social differentiation and degree of government centralization
- Less differentiated societies = more severe punishments
- Absolute power = more severe punishments
Durkheim’s 2 types of criminality
religious & human crimes
Sir Henry Maine on Durkheim’s 2 types of crimes
- Religious crimes: similar to laws punishing sins
- Human crimes: similar to laws punishing torts
significance of Durkheim’s two types of crimes
- Religious crimes are more common in societies with mechanical solidarity, where morality is deeply tied to the collective consciousness
- Human crimes are prevalent in societies with organic solidarity, focusing on individual rights and property
religious crimes definition
- Offences against religion, state authorities, traditions, and other sacred entities
- Violations of the collective consciousness, which embodies deeply cherished moral and quasi-religious values
characteristics of religious crimes
- Predominant in less developed societies with mechanical solidarity
- Political power is often absolute with rulers elevated to a quasi-divine status
- Crimes against the state or sovereign are seen as sacrilege or blasphemy
punishment for religious crimes
- Strong punitive response due to the moral outrage provoked by these acts
- Punishment is an emotional act of vengeance, reaffirming group solidarity and restoring the sacred collective consciousness
- Ex. violations of the depot’s laws treated as offences against the divine authority of the sovereign
function of punishment for religious crimes
- Reinforces group solidarity and restores the sacred collective consciousness
- Acts as a means to maintain moral order in societies where laws express the sovereign’s divine will
key insight of religious crimes
Religious crimes and their severe punishments reflect the intertwining of law, morality, and political authority in societies dominated by mechanical solidarity
human crimes
- Crimes such as murder, theft, rape, fraud, etc.
- Involve the private interests of the individual victim, not society as a whole
characteristics of human crimes
- Predominate in advanced, differentiated societies with organic solidarity
- The collective consciousness is weaker, secular, and less religious in character
- Crime is no longer seen as a desecration or an act of impiety
punishment of human crimes
- Less severe because injuries to individuals do not threaten the entire society and the secular morality of modern societies emphasize human dignity, respect, and humanitarianism
- Public sympathy for offenders emerges, tempering harsh punishments
- Influenced by reformers like Cesare Beccaria who called for abolishing excessive punishment and public executions
historical context of human crimes
- By the 18th century, sympathy for the accused grew as punishments become milder
- Ex. public disapproval of excessive penalties and a shift toward incarceration
key insight of human crimes
Human crimes reflect the individuation of the victim and the emergence of secular morality in advanced societies with a weaker collective consciousness
sacred beginnings of the contract
- In mechanical solidarity, the community is sacred and its authority over individuals is supreme
- Individual obligations to the group are rooted in reverence and awe of the collective consciousness
- Relationship is unilateral: the community has rights over the individual, but the individual has no reciprocal rights
evolution of contracts
Contracts evolve from sacred, coerced, and unequal relationships to secular, free, and equitable agreements
5 types of contracts
- blood covenant
- real contract
- contract of solemn ritual
- consensual contract
- contract of equity
blood covenant
- Binding agreements symbolized by blood or other sacred rituals
- Ex. two friends cutting their palms and shaking hands to symbolize a lifelong bond
real contract
- Obligations arise from the actual transfer of goods or property
- Ex. giving a friend money to buy coffee at Humble Lion
contract of solemn ritual
- Agreements formalized through sacred ceremonies or rituals
- Ex. wedding vows exchanged in front of witnesses and a religious officiant
consensual contract
- Agreements based on mutual consent between parties
- Ex. a mutual agreement between two people based on consent and understanding
contract of equity (just control)
- Agreements emphasizing fairness and equalities between parties
- Ex. a buyer discovers a car they purchased was misrepresented as new but is actually used. They used to undo the deal and get their money back.
Durkheim on the basis of law
- Durkheim sees morality as the basis of law
- Law reflects the moral beliefs and sentiments of a community
Lonn Lanza-Kaduce et al. study
violations of criminal law provoke strong moral condemnation, supporting Durkheim’s claim
Kai Erikson study
punishing law violations unites upright citizens by reinforcing a shared morality
Albert Bergesen study
crimes threaten not only moral boundaries but also political boundaries of a society
Durkheim’s distinction between the law and normative attitudes
- Law reflects normative attitudes (beliefs, feelings, sentiments, opinions)
- Differentiates between criminal law (mechanical solidarity) and civil law (organic solidarity)
criminal law
- Common in mechanical solidarity societies
- Reflects shared community beliefs
- Violations provoke anger and moral indignation
- Punishment involves repressive measures
civil law
- Common in organic solidarity societies
- Reflects beliefs specific to certain societal societies
- Laws are specialized and not widely known by everyone
- Punishment involves restitutive measures
criminal vs. civil law key takeaway
criminal law community consensus, while civil law addresses specialized relationships within a diverse society
Durkheim’s view on constitutional law
- Constitutional law is grouped with civil law in organic society
- Both involve restitutive sanctions and maintain social equilibrium
Lanza-Kaduce et al.’s on constitutional law
- In the U.S. constitutional law protects civil liberties from government encroachment, making it more similar to criminal law
- Criminal law principles apply to constitutional law
- However, repressive sanctions are unsuitable because constitutional law supports organic solidarity, not mechanical
- Develop five sets of hypotheses to explore the alignment of constitutional law with Durkheim’s theory
Lanza-Kaduce et al.’s 5 Sets of Hypotheses
- knowledge across society
- legitimacy and knowledge
- moral condemnations
- sanctions and remedies
- impact of repeating laws
knowledge across society
- High knowledge: criminal and constitutional laws are widely understood
- Low knowledge: civil laws are less understood by the general public
legitimacy and knowledge
- Criminal/constitutional laws: high knowledge leads to high legitimacy
- Civil laws: legitimacy depends on the degree of public knowledge
moral condemnation
- Criminal/constitutional laws: violations provoke strong moral outrage
- Civil laws: violates elicit weaker moral reactions
sanctions and remedies
- Criminal laws: violations result in repressive sanctions (ex. punishment)
- Civil/constitutional laws: violations lead to restitutive remedies (ex. Compensation, resolution)
impact of repealing laws
- Criminal laws: if laws align with public morality, repealing them moderates public beliefs and weakens legitimacy
- Civil laws: public supports legitimacy while laws are active but withdraws support if laws are repealed
example of a restitutive sanction
court orders compensation to the injured party
example of a repressive sanction
public execution for speaking against religious beliefs
Durkheim on ritual punishment
- Punishment unites the honest members of a community, reaffirming shared values and a common identity
- Rituals of punishment strengthen social solidarity by integrating individual consciences into a shared morality
- Ex. public outrage after a crime fosters collective anger, reinforcing community cohesion
Erikson’s extension: boundary maintenance
- Societies maintain both geographical (physical) and cultural (moral) spaces
- Deviance highlights and defines moral boundaries, helping communities clarify what is acceptable behaviour
- Penal rituals (ex. Criminal trials) reinforce these boundaries by publicly confronting deviance
key sociological insights from Durheim and Erikson on punishment
- Communities need deviants to define moral boundaries and establish their cultural identity
- When deviance threatens a community’s identity, several sanctions are imposed to protect it
producing deviance in the community
shaping cultural identity requires defining deviance to establish moral boundaries
severe sanctions for threats
when deviant behaviour threatens cultural identity, communities respond with harsh punishments and significant efforts to eliminate the threat
Erikson’s study: Wayward Puritans (1966)
- Purpose: tests Durkheim’s ideas on punishment and solidarity through a sociohistorical analysis
- Focus: examines how the Puritans of the 17th-century Massachusetts Bay Colony handled deviance
- Method: analyzes three crime waves during the colony’s first century to show how deviance helped define and reinforce moral boundaries
who were the puritans?
- English protestants aiming to purify the Anglican Church of Roman Catholic influences
- In 1630, ~1,000 Puritans left England to establish a model Christian community in Massachusetts Bay Colony
early legal system of the puritans
- A hybrid system combining the sacred authority of Scripture and secular common law of England
- Governed by a General Court composed of ministers and magistrates
- Ministers, as Bible scholars, resolved most legal questions in the colony’s early years
The Antinomian Heresy: Background
- Began in 1636, six years after Puritans arrived in Massachusetts Bay Colony
- Puritans aimed to protect their values and establish a disciplined orthodoxy proclaiming God’s covenant with their community through government leaders
Anne Hutchison’s challenge
- Criticized local ministers’ ability to judge true religious conversion
- Gained a large following, forming a partisan faction against the ruling elite
reaction by Puritan leaders to Anne Hutchison’s challenge
- Viewed Hutchinson’s actions as heresy, threatening their cultural and political identity
- She was tried, convicted, and banished from the colony
significance of Anne Hutchison’s challenge
Highlighted Puritan intolerance for dissent and reinforced their commitment to a unified community identity
key context of the Quaker persecutions
- Massachusetts Bay Colony had established the Laws and Liberties of Massachusetts (1648) to solidify legal codes and respond to criticism
- Puritans, feeling theologically isolated from England, sought to reaffirm their cultural identity by targeting perceived threats
Quakers as Heretics
- Quakers rejected theocratic discipline, lived apart, and defined social norms (ex. Refusing to wear hats for magistrates)
- Seen as a threat to Puritan cohesion and group security
persecution escalates
- Initial response: deportation of first Quakers in 1656
- Harsh penalties followed
- Quaker resistance increased despite intensifying punishments, further provoking Puritan authorities
significance of the Quaker persecutions
- Puritans viewed Quakers as destabilizing forces threatening their cultural identity
- According to Erikson, targeting heretics helped the Puritans reaffirm their moral and territorial boundaries
Intervention by King Charles ll in the Quaker Persecutions
Prohibited corporal and capital punishment fo Quakers, ending extreme persecution
The Witches of Salem Village: Background
- The colony faced political and social turmoil including:
1. Strife between magistrates and ministers
2. Indian wars
3. Charles ll establishing an Anglican Church in Boston
4. King revoked the colony’s charter
5. Internal dissension: legal disputes, feuds, nad political bickering - These tensions weakened group harmony, leading the colony vulnerable to fear and suspicion
beginning of witchcraft hysteria in Salem
- Teenage girls in Salem Village exhibited bizarre behaviours (ex. Convulsions, barking like dogs)
- Puritan ministers encouraged accusations, framing witchcraft as the devil’s conspiracy against the colony
escalation of Salem Witch trials and executions
- Suspected witches were arrested, and by summer, Salem’s jail overflowed with detainees
- Outcomes by autumn:
- 22 executed
- No suspect brought before the court was acquitted
significance of the Salem witch trials
- The hysteria reflected the colony’s deep social anxiety and need to reaffirm moral boundaries during a time of crisis
- Witch trials served as a cultural mechanism to restore solidarity amid chaos
Bergensen’s perspective on witch hunts
- Builds on Durkheim and Erikson’s view that crime challenges a community’s boundaries
- Focuses on political crimes that threaten both moral and political boundaries of a nation-state’s identity
- Crimes include treason, conspiracy, and sedition, often seen as contaminating society and requiring collective cleansing
Four characteristics of political witch hunts
- Sporadic nature: arise during societal crises when collective identity feels threatened and lead to sudden “discoveries” of traitors or subversives
- Urgency and severity: fear or internal threats drives swift and severe actions to protect society
- Hysteria: diverse, even innocent acts are labelled as criminal; accusations spiral out of control
- Public rituals: show trials, public confessions, and investigations dramatize the threat of punishment
historical examples of political witch hunts
French revolution, Stalin Purges, Cultural Revolution (China), McCarthyism (US)
Bergesen’s theory of political crime
- Crime attacks not just moral boundaries but also political boundaries
- These boundaries define a community’s identity as a sovereign nation state
