Repressive law comes into action in the crimes. A crime is an action which violates universally approved sentiments in a society. In the case of restitutive laws, both sides of the legal commitment are precisely defined, i.e. both the obligation & punishment for transgression. In repressive law, the moral obligation is not defined. Durkheim argues that this is because everyone knows of it & accepts it. The predominance of repressive law within the legal system of a society thus presupposes the existence of a strongly defined conscience collective of beliefs and sentiments shared in common by the people of that society. Another connection that he draws between repressive law & the conscience collective is shown by the fact that it is not only the guilty person that is punished but also those closely associated with him/her. In modern societies the rationale that is offered for penal laws is that they are a deterrent. But Durkheim argues that if this were that case then punishment would be consistent with the strength of motivation towards crime, not with the magnitude of the crime. Punishment is the atonement for the criminal and vengeance for society at large. The primary function of punishment therefore is to protect and reaffirm the conscience collective in the face of acts, which question its sanctity.
Durkheim here differentiates between mechanical & organic solidarity (2 types of the conscience collective). Societies in which the principle bonds of cohesion are based upon mechanical solidarity, have a segmental structure. They are made up of individual clans complete in themselves, which only unite to form a society due to cultural unity, i.e. common beliefs and ethics. Anyone part of the society can break up without too much loss to the others, like simple biological organisms splitting up to form two. In such societies, there are strongly formed sets of sentiments and therefore very little individualism. Each individual is a microcosm of the whole. In this situation, property is normally communal since private property makes for individualism. The progressive replacement of repressive by restitutive laws is a historical trend, which is co-related with the development of society. The more the development, the more the proportion of restitutive laws.
Repressive Repressive & Restitutive Restitutive
Primitive society Modern society
The fundamental element found in repressive law i.e. the concept of expiation (atonement) through punishment, is absent in restitutive law. Therefore it follows that the type of solidarity indexed by restitutive law must be different from that indexed by repressive law. The very existence of restitutive law, in fact, presupposes the prevalence of a differenciated division of labor since it covers the rights of individuals, either over private property or over other individuals who are in a different position from themselves.
The 2nd type of social cohesion is organic solidarity. Here, it is not simply acceptance of common beliefs that is the bond but rather the functional interdependence arising out of division of labour. Mechanical solidarity presumes identity (similarity) between individuals, whereas organic solidarity assumes differences between individuals. There is, in the latter case, a decline in the significance of the conscience collective. However, commonly held beliefs and values don't disappear in complex societies.
WHY DOES DIVISION OF LABOUR OCCUR?
When previously isolated societies came into contact with one another, the isolation was broken, trade and commerce came into existence and led to division of labour. It is also accelerated by conflict, the struggle for existence becomes most acute (Darwin). In order to survive and live side by side, organisms have to specialize in their functions. It is the same with human societies.
INDIVIDUALISM & ANOMIE.
Individualism can only progress at the expense of the strength of common beliefs etc… The conscience collective is weakened and generalized, making room for individual differences. However, modern society does not collapse. Mechanical solidarity is replaced by organic solidarity. This is a moral order, indeed, it strengthens the conscience collective at one point: the growth of the cult of the individual. Here Durkheim runs into difficulty. Why is there increasing conflict with division of labour? Durkheim recognizes this fact and says that it is an 'anomic' condition i.e. the breakdown of norms & values. This condition, however,, is a transitional one. Individualism has outstripped organic solidarity and must be harnessed to it in order for society to prosper. Anomie is also a pathological condition. There is a built-in potential in modern society towards organic solidarity where each separate and specialized institution is dependant upon the other and in turn feeds the social structure. If the component parts of society can be induced to feel 'a lively sentiment of their mutual dependence,' then many of the conflicts & crises can be swept aside. A prime task for contemporary society is, therefore, the construction of a new civic morality which will be spread efficiently by a state education system. Durkheim identifies chaotic economic competition as the primary cause of conflict and class struggle. He advocates regulation of the economy and of the worker-employer relationship. He even suggests guild s to mediate between workers, employers and the state.
He also argues against the 1st division of labour where inequality of opportunity denies individuals access to positions to suit their talents. Durkheim speaks of internal differences and external differences. He believes that the latter should be removed so that people find jobs that are in keeping with their abilities (meritocracy).
But above all is the idea that the individual is subordinate to society and it is this submission to society which creates his liberation from conflict and crisis. What is good for social integration is god for the individual.
