Durkheim:

Durkheim was not primarily concerned with law per se but was more interested in the study of society. His relevance is that he attributed central importance to law in the developing of an understanding of social life in general. His concept of collective conscience is important to an understanding of his theory and to what he said about law. Through out his writing it is clear that he adopts the consensus model which presumes value consensus in the society.

Durkheim proposed a division between pre modern and modern society by the term mechanical solidarity and organic solidarity. He refers mechanical solidarity to understand the position of law in pre modern society. In such society there is no division of labour and every individual may have same tasks. This society has only a low level of technology and operates as a subsistence society. Little interchange of goods ensues. There is not any different type of lifestyle chief and lesser member of that society.

In this society there will be a “collective” or “common conscience”. If all member of that society universally disapprove any act because of common conscience that act will be an offence. In such a case repressive sanction will be imposed upon who acted outside the common conscience. It can be said that all types of criminal law stems from disapproval which from the collective or common conscience in such society. For example- Theft, here all member of the society disapprove the conduct of a thief. For this reason it will be a law and punishable who is liable for theft.

In this society conscience is the basic principle of law. To Friedmann, the foundation of relationship between law and society depend upon the tradition of conscience view of law. This view controls the whole society and an investigation of way to control the society shows the nature of society. Likewise M. Hart sates that Criminal law speaks to members of the community, in other words, in the communities behalf, with all the power and prestige of the community behind them. According to above discussion, it may be concluded that by discussing mechanical solidarity, nature of pre modern society could be understood. In this society repressive type of sanction played a vital role for obeying law of that society.

It can be contrasted with Marx. For example- Reid in 1979 sums up the Marxist position thus: the conflict theorists argues that the criminal law does not reflect custom but, rather, the desire of the ruling class to maintain its own interests at the expense of those being ruled. 

Organic solidarity was referred by Durkheim to mean modern society, where the role of different person will not be same. Such as- in modern society there are so many doctors, engineers, lawyers etc. Each individual are playing different types of role. So that society is developing one. The society is characterized by a complex division of labour. Durkheim saw the division of labour not simply in terms of a more productive economic order but as ushering in a new type of moral life, which he called moral individualism. Such society has many more norms created roles, the greater number of roles, and the grater number of norm. In such society role become complicated and sophisticated. And there will not have the same conscience.

For this reason, in that society if the law will breach there will be restitutive sanction. Durkheim argued that modern society is turning in organic solidarity from mechanic solidarity. So those laws are becoming restutive in nature rather than repressive in nature. An example is that in pre modern society criminal law goes against common consciousness so that the plaintiff is the state. The changing nature of the society is also found into existence. In modern society the consciousness are not same. So for criminal offence an individual sue the defendant under the law of tort for compensation in modern society. It reflects that modern society become restitutionary in nature rather than repressive.

With regard to the connection between law and morality Durkheim concluded that these were virtually synonymous. He maintained that law is derived from and is an expression of society’s morality and that this explains how punishment may be seen as the expression of collective sentiments by which social cohesion is maintained. Again this reflects his consensus model of society. But problem arise because kelsen argues that morality can not be a part of law where as Durkheim took the opposite position.

Durkheim argued that day by day law becoming restitutive in nature. In modern society a lot of new offence has been found in society and to protect this offence the law is becoming repressive rather than restitutive in nature such as cyber crime, misusage of computer, hacking of One’s computer, CD copying etc. I think for this reason there is still a predominance of repressive law in an organic society such as modern Britain. In this country it found that Fraud Act 2006 enacted which contain repressive type of punishment. The answer which Durkheim would provide is that the division of labour has deviated from its original course. There has been a breakdown of “socialization”, meaning that the occupational groups are not performing their socializing tasks effectively enough.

Moreover, empirical evidence tends to refute the assumption that in a primitive society there is no division of labour. Even as between the sexes there was a division of labour whereby women tended the home and men hunted. Their life experiences were therefore quite different. It is therefore disputable whether there ever was a true mechanical solidarity society as Durkheim understands the phrase.

Durkheim also claimed that day by day the society’s law is becoming restitutive in nature. But he has provided no adequate account of how law becomes increasingly restitutive. This is another deficiency of Durkheim’s theory.

Furthermore, Durkheim put too much emphasis like Austin and kelsen that sanction has been playing a vital role in case of obeying law. To Durkheim in mechanical solidarity there is repressive type of sanction and in organic solidarity restitutionary type of sanction is found. But Hart identify that law is not only obeyed because of fair of sanction but also for having an obligation.

Finally, after above discussion I want to conclude that actually the law is not becoming restitutionary from repressive. Rather restitutionary are increasing along with repressive.