compare and contrast the different views of the division of law specified on criminal and civil law

The Division of Labor in -- .. - -- --·- . ·- - .. -------· ... ·--· . - _S_Q~_iety __

by

Emile Durkheim

With an introduction by Lewis A. Coser

Translated by W. D. Halls

'THE UNIVERSITY LIBRARY UNIVERSITY OF CA LIFORNIA, SAN DleGQ

LA JOllAt CALIFORNIA

l~I T he Free Press

A Divisio n of Macmillan, Inc. New York

Introduction ~ 1984 by Lewis A. Cosc r Translation© 1984 by Highe r and Further Educat ion Di\ i'ion. Macmillan

Publishers Ltd Copyright © 1984 by The Free Press

A Division of Macmillan. Inc.

All rights reserved. No pa rt of this book may tic rqm>Juccd nr tran~mitrnJ in any form or by any means. electronic or mechan ical, includin)! phol<lc<>pyini:. rccordini:. or by any in formation storage and ret rieval system. without pcrmi~'ion in "'ritin!! from the Publisher.

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Printed in Hong Kong

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Library of Congress Cataloging in Publication Dahl

Durkheim, Emile, 1858-1 9 17. The division of labor in society. Translation of: De la division du travail social. Originally published: Emile Durkheim on the divisio n of labor in socic tv. New York: Macmillan , 1933. ' Includes bibliographical references. I. Division of labor. I. Halls, W. 0 .

11. Title. HD51.09613 1984 306' .36 84--1011 1 ISBN 0-02- 907950--0 ISBN 0-02-907960-8 (pbk.)

Chapter II

Mechanical Solidarity, or Solidarity by Similarities

The bond of social solidarity to which repressive law corresponds is one the breaking of which constitutes the crime.LWe use the term 'crime' to designate any act which, regardless of degree, provokes against the perpetrator the characteristic reactio n known as pun- ishmen~JTo investigate the nature of this bond is therefore to ask what is the cause of the punishment or, more precisely, what in essence the crime consists of. · Assuredly crimes of different species exist. But it is no less certain

that all these sp§i~s of crime have something in common. This is proved by the reaction that they provoke from society: the fact that punishment, except for differences in degree, always and every- where exists. The oneness of the effect reveals the oneness of the cause. Undoubtedly essential resemblances exist not only among all crimes provided for in the legislation of a single society, but among all crimes recognised as such and punished in different types of society. No matter how different these acts termed crimes may appear to be at first sight, they cannot fail to have some common basis. Universally they strike the moral consciousness of nations in the same way and universally produce the same consequence. All are crimes, that is, acts repressed by prescribed punishments. Now the essential properties of a thing lie in those observed wherever it exists and which are peculia r to it. Thus if we wish to learn in what crime essentially consists, we must distinguish those traits identical in all the varieties of crime in different types of society. Not a single one of these types may be omitted. Legal conceptions in the lowest forms of society are as worthy of consideration as those in the highest forms. They are facts that prove no less instructive. To rule them out of court would be to run the risk of perceiving the essence

31

32 The Function of the Dfrision of Labour

of crime where it is not. It would be like the biologist whose definition of living phenomena would be very inexact if he had scorned to observe single-cell entities. If he had looked at organisms alone - and particularly the higher organisms- he would have wrongly concluded that life consists essentially in the organisa- tion of cells.

The way to discover this permanent. general clement is clearly not to go through all those acts which have been designated as crimes at all times and in all places, in order to note the characteristics they present. For, despite what has been stated, if there are acts that have been universally regarded as criminal, these constitute a tiny minority. Thus such a method would provide us with only a singularly distorted notion of the phenomenon, because it would apply only to exceptions.• The variations in repressive law at the same time prove that this unchanging character is not to be found in the intrinsic properties of acts imposed or prohibited by penal rules, because these display so great a diversity, but in the relationship they entertain with some condition outside themselves.

This relationship was believed to lie in the kind of antagonism existing between these acts and the larger interests of society. It has been claimed that penal rules have expressed for each type of society the basic conditions for collective life. Their authority thus sprang from necessity. Moreover, since these needs vary according to societies; one could in this way explain the variations in repressive Jaw. We have already given our views on this point. Such a theory ascribes much too large a part to deliberate calculation and reflection in directing social evolution. There are a whole host of acts which have been, and still are, regarded as criminal, without in themselves being harmful to society. The act of touching an object that is taboo, or an animal or man who is impure or consecrated, of letting the sacred fire die out, of eating certain kinds of meat, of not offering the traditional sacrifice on one's parents' grave, of not pronouncing the precise ritual formula, or of not celebrating certain feasts, etc. - how have any of these ever constituted a danger to society? Yet we know the prominent position occupied in the repressive law of a large number of peoples by such a regulation of ritual , etiquette, ceremonial and religious practices. We need only open the Pentateuch to be convinced of it. Moreover, as these facts are found normally in certain social species, we cannot regard them

.\fecha11ica/ Solidarity, or Solidarity by Similarities 33

as mere anomalies or pathological cases which we may legitimately dismiss.

Even where the criminal act is certainly harmful to society, the degree of damage it causes is far from being regularly in proportion to the intensity of repression it incurs. In the penal law of most civilised peoples murder is universally regarded as the greatest of crimes. Yet an economic crisis, a crash on the stock market, even a bankruptcy, can disorganise the body social much more seriously than the isolated case of homicide. Assuredly murder is always an e,·it. but nothing proves that it is the greatest evil. What does one human being the less matter to society? Or one celi fewer in-the organism? It!S"Saio that public safety would be e ndangered in the future if the act remained unpunished. But if we compare the degree of danger, however real it may be, to the penalty, there is a striking disproportion. All in all, the instances just cited show that an act can be disastrous for society without suffering the slightest repression. On any score, therefore, this definition of crime is inadequate.

Modifying the definition, can it be asserted thf!J_qiminal acts are ' those that seem harmful to the society that represses them? Can we also say thatpenal 'rules express, not the conditions essentia l to social life, but those that appear to be so to the group observing tti.e rules? Yet such an explanation explains nothing: it does not allow us to-understand why, in so many cases, societies have mistakenly enforced practices which in themselves were not even useful. In the· end this alleged solution to the problem really amounts to a truism. lf societies therefore force every individual to obey these rules it is plainly because, rightly or wrongly, they esteem this systematic and · exact obedience to be indispensable, insisting s trongly upon it. This therefore comes down to our saying that societies deem the rules necessary because they deem them necessary! What we should be saying is why they judge them necessary. If the view held by societies was based upon the objective necessity for prescriptive punishments, or at least upon their utility, this would be an explanation. But this goes against the facts, so the entire problem remains unsolved.

However, this latter theory is not without some foundation . It is correct in seeking the conditions that constitute criminality in certain states of the individual. Indeed, the only feature common to all crimes is that, saving some apparent exceptions to be examined later, they comprise acts universally condemned by the members of

34 The Function of the Division of Labour

each society . Nowadays the question is raised as to whether such condemnation is rational and whether it would not be wiser to look upon crime as a mere sickness or error. But we need not launch into such discussions, for we are seeking to determine what is or has been, not what should be. The real nature of the fact we have just established cannot be disputed, viz., that crime disturbs those feelings that in any one type of society are to be found in every healthy consciousness.

We can determine in no other way the nature of these sentiments nor define them in relation to their special purposes, for these purposes have varied infinitely, and can vary again. 2 Nowadays it is altruistic sentiments that manifest this characteristic most mar- kedly. But at one time, not at all distant, religious or domestic sentiments, and a host of other traditional sentiments, had precisely the same effect. Even now, despite what Garofolo says, a mere negative sympathy for others is by no means the only condition for bringi ng about such a n effect. Even in peacetime do we not feel as much aversion for the man who betrays his country as for the robber and swindler? In countries where feeling for the monarchy is still alive, do not crimes of lese-majeste arouse the general indignation? In democratic countries do not insults levelled at the people unleash the same anger? Thus we cannot draw up a catalogue of those sentiments the violation of which co nstitutes the criminal act. Such feelings arc indistinguishable from others, save for one characteris- tic: they a re shared by most average individuals in the same society. Thus the rules forbidding those acts for which the penal law provides sanctions are the sole ones to which the celebrated legal axiom, 'No man is pre.sumed ignorant of th e law', can be applied without exaggeration.[Since the rules are inscribed upon everyone's consciousness, all are aware of them and feel they are founded upon right~ At least this is true for the normal condition. If adults are encountered who are ignorant of these basic rules or refuse to recognise their authority, such ignorance or refusal to submit are irrefutably symptoms of a pathological aversion. Or if by chance a penal rule persists for some time although disputed by everyone, it is because of a conjunction of exceptional circumstances, which are consequently abnormal - and such a state of affairs can never endure.

This explains the special manner in which penal law becomes codified. All written law serves a dual purpose: to prescribe certain

Mechanical Solidarity, or Solidarity by Similarities 35

obligations, and to defin~ the sanct.ions attached to them.Jn civil law, and more generally m every kmd of law where sanctions arc restitutory, the legislator approaches and re solves these two problems separa te ly. Firstly, he determines the nature of the obligation as exactly as possible; only then does he state the manner in which a sanction should be applied. For example, in the chapter of the French civil code devoted to the respective d uties of husband and wife, these rights and dut ies are spelt out in a posi tive way, but nothing is said as to what happens when these duties are not fulfille d by one or the other party'1T'he sanction must be sought e lsewhere in the Code. Occasionally the sanction is even taken totally for granted. Thus Article 214 of the civil code prescribes that the wife must live with her husband; o ne may deduce that the husband can oblige her to return to the marital home, but this sanction is nowhere formally laid down . By ~'?n trast~pre~_rib~~_9_nl_y

_sanctions and _says _nothing abo:Ut the obligations to .whic_ll __ t.!!ey ~eia te. It does not ord.ain that tii~-i i-fe of anothe r person must be ~cted, but prdains._the death of. the_ murde.r~r- It does not first state, as docs civil la_~: This is the duty; but states immediately: This is the punishment. Undoubtedly if an ac t is punished, it is because it is contrary Hl a nrnndat<-Hy-.rule, but this rule is not expres.~t out. There can be only one reason fort · ·· · · · is k_nown and acceptcJt>Yevcry ody. When a::f!Jst()i:_l]:!" r~~cquires the status of a written law arials codified, it is because litigious questions require a solution more closely defined. If the custom continued quietly to functi on, provoking no argument or difficulty, there wo.uld .b~no reason for it to undergo this transformation . Since rf.o.aU aw is only-codified-so.auo .es!abl!sh a sliding_sc.ale of penalties, i,Us there.fore because a .cust? m by it.self ca.n give rjse_ to doubt. Coqvf.l-sely, 1f rules whose v10latwn entails pumshment need n~Juridica1~xpression it is because they are not a t all a subject of dispute, and because everyone feels their authority .3 ·

It is true that sometimes the Pentateuch does not Jay down sanctions, although, as we shall see, it contains little else than penal rules. This is the case for the Ten Commandments, as they are formulated in Exodus 20 and De uteronomy 5. But this is because the Pentateuch, although it fulfilled the function of a code, is not properly one. Its purpose is not to gather together into a single system, and to detail with a view to their appl icatio n, the penal rules followed by the Jewish people . So far short does it fall of forming a

36 The Function of the Division of Labour

codification that the various sections comprising it do not even seem to have been drawn up at the same time. It is above all a summary of the traditions of all kinds through which the J ews e xplained to themselves, and in their own way, the o rigins of the world. of their society and of their main socia l practices. Thus if the Pentateuch enunciates certain duties to which punishments we re certainly attached, this is not because they were unknown o r failed to be acknowledged by the J ews, or because it was necessary to reveal them to them. On the contrary, since the book is merely a compilation of na tional legends, we m ay he sure tha t all it contained was graven on everyone's consciousness. Nevertheless it was essential to recapitulate in a set form the popular be liefs about the origins of these precepts, the historical circumstances in which it was assumed tha t they had bee n promulgated. and the sources of their authority. From this viewpoint, therefore. the determination of Jlllnishments becomes something incidcnta l.4

For the same reason the operation of repressive justice always 'tends to some extent to remain diffuse. In very different types of socie ty it is no t exercised through a special magistrate, but so~ a whole shares in it to a greater or lesse r degree. ln'J)rimitive societies where, as we shall see, la w is wholly penal in character, it is the people assembled togethe r who mete out justice. This was the. case for the primitive Germans.5 In R o me. whereas civil matters fell to the praetor, criminal ones were judged by the people, a t first by the cornices curiates, and then , from the law of the Twelve Tables onwards, by the comices centuriates. Until the end of the Republic, although in fact the people had de legated its powers to sta nding commissions, they remained the supreme judges in these kinds of cases.6 In Athens, under the legislation of Solon, criminal juris- diction fell in part to the H >..ima, a huge collegial body which nominally included all citizens over the age o f thirty .7 Lastly, in Germano-Roman n ations society intervened in the exercise of these same functions in the form o f the jury. Thus the diffuse state that pervades this sphere of judicial po wer would be ine xplicable if the rules whose observa nce it e nsures, a nd in consequence the senti- ments these rules reflect, we re not immanent in everyone's con- sciousness. It is true that in other cases the power was held by a privileged class or by special magistrates. Yet these facts do not detract from the value as proo f of the other ones mentioned. Although the feelings of the collectivity a re no longer expressed

Mechanical Solidarity, or Solidarity by Similarities 37

save through certain intermediaries, it does not follow that these feelings are no longer of a collective nature just because they are restricted to the consciousnesses of a limited number of people. Their delegation to these people may be due either to an ever- increasing growth in cases necessitating the appointment of special officials, or to the extreme importance assumed by certain person- ages or classes in society, which authorises them to be the interpreters of its collective sentiments.

Yet crime has not been defined when we have stated that it consists of an injury done to the collective sentiments, since some of these may be wounded without any crime having been committed. Thus incest is fairly generally an object of aversion, and yet it is a purely immoral act. The same holds good for breaches of sexual hono ur committed by a woman outside marriage, either by yielding her liberty utterly to another or by receiving the surrender of his liberty. Thus the collective sentiments to which a crime corresponds must be distinguished from other sentiments by some striking characteristic: they must be of a certain average intensity. Not only are they written upon the consciousness of everyone, but they aie deeply written. They a;:e in no way mere halting, superfidai caprices o! the will. butJ.;.motions and dispositions strongly rooted within US..:JThe extreme slowness with which the penal law evolves demonstrates this. It is not only less easily modified than custom, but is the one sector of positive law least a men able to change. For instance, if we observe what the law-givers have accomplished since the beginning of the century in the different spheres of the law, innovations in penal Jaw have been extremely rare and limited in scope. By contrast, new rules have proliferated in other branches of the Jaw - civil, commercial, administrative or constitutional. If we compare penal law as laid down in Rome by the Law of the Twelve Tables with its condition in the classical era, the changes we note are minimal beside those that civil law underwent over the same period . . Mainz states that from the Twelve Tables o nwards the main crimes and offences were fixed : 'For ten generations the calendar of public crimes was not added to save by a few laws which punished embezzlement of public funds, conspiracy and perhaps plagium.' 8

As for private offences, only two new ones were recognised: plun- dering (acrio bonorum i-i raptorum) and malicious damage (damnum injuria dawm ). Such is the position everywhere. In the lower forms of society, as will be seen, law is almost exclusiv"eiy-ofapenal kind,

38 The Function of the Division of Labour

and consequently re mains unchanged. Generally religious law is always repressive: it is essentially conservative . This unchangeable character of penal Jaw demonstrates the strength o f resistance exerted by the collective sentiments to which it corresponds. Conversely, the greater malleability of purely moral laws and the relative swiftness with which they evolve de monstrates the lesser strength of the sentiments unde rlying them. They have ei ther deve loped more recently and have not yet had time to pe netrate deeply the individual consciousness, or their roots arc in a state of decay and are floating to the surface.

A last addition is needed for o ur definition to be accurate. If, in general, the sentiments that purely moral sanctions protect, that is, ones that are diffuse, are less intense and less solidly organised than those protected by punishments proper, exceptions still remain. Thus there is no reason to concede tii-Ot normal filial piety or even the elementary forms of compassion for the most blatant forms of misery are nowadays more supe rficial sentiments than is the respect for property or public autho rity. Yet the wayward son and even the most arrant egoist are not treated as criminals. Co nsequently it is not enough for these sentiments to be strongly held; they must be precise. Indeed, every single one relates to a very clearly defined practice. Such a practice may be simple or complex, positive or negative, that is, consisting in an action undertaken or avoided; but it is always de te rminate. It is a question of doing or not doing this or that, of no t killing or wounding, or utte ring a particular formula , or accomplishing a particular rite, etc. By contrast, sentiments such as filial love or charity are vague a spiration s to very general objects. Thus penal rules are notable for their cla rity and precision, "'"hilst purely moral rules are generally somewhat fluid in character. Their indeterminate nature not infrequently makes it hard to formulate any clear definition of them. We may state very generally that people should work, or have compassion for others, etc., but we cannot determine precisely the manner or extent to which they should do so/Consequently there is room here for varia tio ns and shades of meaning} By contrast , because the sentime_nts embodied in penal rules are determinate, they possess a much greater uniformity. A s they cannot be inte rpreted in different ways, they are everywhe re the same.

We are now in a position to concluQ.e . I~9tati.!Y .. 9LheJicfs _and sentiments common _t_?. the average

Mechanical Solidarity, or Solidarity hy Similarities 39

,members of _a _society forms a determinate system with a life of its pw_n. 1t..ian be t.eny1 ed_~he .. collective or common consciousness. · Undoubtedly the substratum of this conscioiisness does not ·consist of a single organ. By de finition it is diffused over society as a whole, but nonetheless possesses specific characteristics that_ m?_ke .iL a. 2_ig_i_nc:!iv~_reality. [n fact it is independent of_ the _ particul_ar conditions inwhlcfiTndividuals find themselves. Individuals pass on, but it abides. It is the same in north and south, in large towns and in small, and in different professions. Likewise it does not change with every gene ration but, on the contrary, links successive generations to one another. Thus it is something totally -different from th~ consciousnesses of individ'Uais,-aTihough it is ·oniy "i-ea[ised in incii~idu~ls. Jt is t~e psychologica~ of soc_ie!y, ~.i:!<:~~i~-~-~~~-i~~ prope rties, conditions for existence and mode of rlevelopment, just as -inmviduaT t)'iies-ao--;-iJucTna -different fashion For this- reason it has the right to be designated by a special term. ltls true that the one we have employed above is noiw ith_o.ufambiguity. Since the terms 'collective' and 'social' are often taken as synohyms, one is inclined to believe thatthc collective consciousness is the entire social consciousness, that is, co-terminous with the psychological life of society, whereas, particularly in higher societies, it constitutes only a very limit~d part of it. Those functions that are judicial, governmental, scientific or industrial - in short, all the specific functions - appertain to the psychological order, s ince they consist of syste~s of representation and action. However, they clea rly lie outside the common consciousness. To avoid a confusion9- that has occurred it would perhaps be best to- invent a _technical expression which would specifically designate the sum total of social similarities. However, since the use of a new term, when it is not absolute ly necessary, is not without its ~Ls_:;i_fl_yantages, we shall retain the more generally used exprcssion;~ollective (o r common) consciousness') but always keeping in mind the restricted sense in which we are em loying it.

Thus ~ mm in u the above analysis, we may state that an act is crimi;a l when it offends the strong, well-defined states of th~ collective consciousness. 10

- This proposition, taken literally, is scarcely disputed, although usually we give it a meaning very different from the o ne it should have. It is taken as if it expressed , not the essential characteristics of the crime, but one of its repercussions. We well know that crime

40 The Function of the Division of Labour

offends very general sentiments , but ones that are strongly held. But it is believed that their generality and strength spring from the criminal nature of the act, which consequently still remains wholly to be defined . It is not disputed that any criminal act excites universal disapproval, but it is taken for granted that this results from its criminal nature. Yet one is then hard put to it to state what is the nature of this criminality. Is it in a particularly serious form of immorality? I would concur, but this is to answer a question by posing another, by substituting one term for another. For what is immorality is precisely what we want to know- and particularly that special form of immorality which society represses by an organised system of punishments, and which constitutes criminality. Clearly it can only derive from one or several characteristics common to all varieties of crime. Now the only characteristic to satisfy that condition refers to the opposition that exists between crime of any kind and certain collective se ntiments. It is thus this opposition which, far from deriving from the crime. constitutes the crimeDn other words, w~-~.Q.QIJld not say that an act offends. the.common consciousness because it is criminal, but that it is criminal because.jI ,.bffe-~ds that ~onsciousness.}Wc do n9J_C9._l]_~_C.!l)f1 it __ b££~~~e .. it is a. _c_rime, but it is a crime because we condemn f!] As regards the intrinsic nature of these feelings, we cannot specify what that is. They have very diverse objects, so that they cannot be encompassed within a single formula . They cannot be said to relate to the vital interests of society or to a minimum of justice. All such definitions are inadequate. But by the mere fact that a sentiment, wha tever may be its origin and purpose, is found in every consciousness and endowed with a certain degree of strength and precision , every act that disturbs it is a crime. Present-day psychology is increasingly turning back to _Spinoza's idea that things are good becaµse we like them, rather than that we like them because they are good. What is primary is the tendency and dispos ition: pleasure and pain are only facts derived from this. T_!!.e same holc!~_g_oo~~E. act is socially evil because it i~ by society. But, it wiTIDe

/ contende.d, are there no collective sentime-ri'isthat arise from the pleasure or pain tha t society feels when it comes into contact with their objects? This is doubtless so, but all such sentiments do not originate in this way. Ma ny, if not the majority, derive from utterly different causes. Anything that obliges our activity to take on a definite form can give rise to habits that result in dispositions which

Mechanical Solidarity, or Solidarity by Similarities 41

then have to be satisfied. Mo reover, these dispositions alone are truly fundamental. The others are only special forms of them and are more determinate. Thus to find charm in a particular object, collective sensibility must already have been constituted in such a way as to be able to appreciate it. If the corresponding sentiments are abolished, an act most disastrous for society will not only be capable of being tole rated, but honoured and held up as an example. Pleasure cannot create a disposition out of nothing; it can o nly link to a particular end those dispositions that already exist, provided that end is in accordance with their original nature.

Yet there are cases where the above explanation does not appear to apply. There are acts that are repressed with greater severity than the strength of their condemnation by public opinion. Thus combinations between officials, the encroachment by judicial authorities on the administrative powers, or by religious upon secul ar functions a re the object of a repression which is dispropor- tiona te to the indignation they arouse in the individual conscious- ness. The misappropriation o f public property leaves us fairly indifferent, and yet for it fairly stiff punishments are meted out. It may even happen that an act that is punished does not directly offend any collective -sen ti t. We feel no urge to pro test against fis mg or hun 1 c close season, or against overloaded vehicles on the public highway. Yet we have no grounds for distinguishing these offences completely from others. Any radical distinctionu would be arbitrary, since all exhibit in varying degree the same external criterion . Doubtless in none of these examples does the punishment appear unjust. If the punishment is not rejected by public opinion, such opinion, if left to its own devices, would either not insist upon it at all or would show itse lf Jess demanding. Thus in all cases of this kind the criminality does not derive - or at least not entirely so - from the degree of sensitivity of the collective sentiments which are offended, but may be traced to another cause.-

It is undoubtedly the case that once some governmental authority is instituted it possesses enough power of itself to attach penal sanctions on its own initiative to certain rules of conduct. By its own act ion it has the ability to create ce rtain crimes or to attach greater seriousness to the criminal character of certain others. Thus all the acts we have just instanced have one characteristic in common, that is, they are directed against one or other of the bodies that control the life o f socie ty. Should we then concede that they are two types of

42 The Function of the Dfrision of Labour

crime springing from two different causes? Such an hypothesis cannot be considered for a moment. However numerous its varieties, crime is essentially the same everywhere, since every- where it entails the same consequence. that is. punishment. Although this may vary in severity, it docs not thereby change in nature. Now the same fact cannot have two causes. unless this dua lity is only apparent and funda menta lly the causes arc one. That power to react peculiar to the state must be of the same nature as that spread throughout society as a whole.

Where, in fact, might it originate? From the serious nature of the interests that the state directs, interests that require protecting in a very special way? But we know that the harm alone done to these interests, weighty though they may he, is not enough to determine the reaction of punishment. The harm must also be perceived in a certain manner. Moreover, how docs it come about that the slightest injury done to the organ of government is punished, whilst other injuries of a much more fearsome kind inflicted on other bodies within society arc redressed only by recourse to civil law? The slightest infringement of the regulations relating to the highways and waterways is penalised by a fine. But even the repeated breaching of contracts, or persistently unscrupulous conduct in economic relationships, merely necessitates the appor- tionment of damages. The machinery o f government certainly plays an outstanding role in social life. but there are other bodies in society whose interests continue to be vital a nd yet whose function- ing is not underpinned in the same manner. If the brain is of importance, the stomach is likewise an essential organ, and the latter's ailments may be threatening to life , just as are the farmer's. Why is this privileged position accorded to what is occasionally called the 'brain' of society?

The problem is easily solved when we perceive that wherever an authority witb power to govern is established its first ii'"°nd fore· most function is to ensure respect for beliefs, traditions and col- l~ctivc practices-:; namely, to d~fend the common consciousne~ {rom all its enemies. from within as well as withm1t It thus becomes tf:i.e symbol of that consciousness, in everybody's eyes its living expression. Consequently the energy immanent within the con- sciousness is communicated to tha t authority, just as affinities of ideas are transmitted to the words they represent. This is how the

Mechanical Solidarity, or Solidarity by Similarities 43

authority assumes a character that renders it unrivalled. It is no longer a social function of greater or lesser importance, it is the embodiment of the collectivity. Thus it partakes of the authority that the collectivity exercises over the consciousness of individuals, and from this stems its strength. Yet once this strength has arisen, no t breaking free from the source from which it derives and on which it continues to feed. it nevertheless becomes a factor of social life which is autonomous, capable of producing its own spontaneous actions. Precisely because of the hegemony this strength has acquired. these actions are totally independent of any external impulsion. On the other hand, since it is merely derived from the power immanent in the common consciousness, it necessarily possesses the same properties and reacts in similar fashion, even when the common consciousness does not react entirely in unison. It thus wards off any hostile force, just as would the diffused consciousness of society, even if the latte r does not feel that hostility or feels it less strongly; that is, a governing authority categorises as crimes those acts that are harmful to it, even when the sentiments of the collectivity are not affected to the same extent. Nevertheless, it is from these latter sentiments that it receives the whole power allowing it to create crimes and offences. As well as the certainty that the power cannot come from elsewhere and yet cannot come from nothing, the following facts (on which we shall expand fully in the rest o f this volume) confirm this explanation. TJ.!e §£.!:WC of the actio n that governmental authority exerts ayer the .number __ of criminal acts, and the designation of what is criminal . i;iepeod u~ the power it possesses. This power in turn may be measured eithe:r by the degree of authorjt~ thatit exercises over its citizens or by th~ . .degre_c.'DLserio.usne.ssJ.lttrjbuted to the crimes directed against it. Wc51rnlls..e.~ that it i~_i.!1_ lowersoc1cties-that this authority is gr6.tes.t a_nd.~here_ this seriousness_~_e_igh_s most heavily, and mQit.!9.Ye.r.Jhat i1.isj !1_ ~~C::.~_!!_e_l!_-:sa me types _of society t~at_thec()ll_f'.~!iye c~m~cio1!.§7 ne~~ possesses most power. ~2

Thu-s fi is always to the g211~tive consciousness that we must return. From it, directly or indirectly, all ~rim~~a_T(~flows. Crime is not o nly injury done to interests which may be serious; it-is also an offence against an authority which is in some way transcendent. Experientially speaking, there exists no moral force superior to that of the individual, save that of the collectivity.

l' I.: . rq; j

44 The Function of the Dfrision of La hour

Moreover, there exists a means of \'Crifying the conclusion at which we have just arrived. What characterises a crime is that it determines the punishment. Thus if our own definition of crime is exact it must account for all the characteristics of the punishment. We shall proceed to verify this.

Firstly, however, we must establish what those characteristics are.

II

In the first place, punishment constitutes an emotional reaction. This characteristic is all the more apparent the less cultured societies .are. Indeed primitive peoples punish for the sake of- punishing, causing the guilty person to suffer solely for the sake of suffering and without expecting any advantage for thcmsel\'eS from the suffering they inflict upon him. The proof of this is that they do not aim to punish fairly or usefully, but only for the sake of punishing. Thus they punish animals that have committed the act that is stigmatised, 13 or even inanimate things which have been its passive instrument.14 When the punishment is applied solely to people, it often extends well beyond the guilty person and strikes even the innocent - his wife, children or neighbours, etc. u This is because the passionate feeling that lies at the heart of punishment dies down only when it is spent. Thus if, after having destroyed the one who was its most immediate cause, some strength of feeling still remains, quite automatically it reaches out further. Even when it is sufficiently moderate in intensity to attack only the guilty person it manifests its presence by its tendency to exceed in seriousness the act against which it is reacting. From this there arose refinements of pain that were added to capital punishment. In Rome the thief had not only to give back the object stolen but also to pay a fine of double or even quadruple its value. 16 Moreover, is not the aim of the very widespread punishment of talion to assuage the passion for vengeance?

Nowadays, however, it is said that punishment has changed in nature. Society no longernunishcs to ave.nge. but to defend itself. In its hands the pain it inflicts i~ only a systematic instrument for its rrotection. Society punishes. not because the punishment of itseJ!._. affo~rne satisfaction, but in order that the fear of punishrm.nt-- DWY give pause ta the evilly inclined. I! is no longer wrath that

Mechanical Solidarity, or Solidarity by Similarities 45

governs repression, but well the prece ing remarks cannot be generally applied: they may only concern the primitive form of punishment and cannot be extended to cover its present-day form.

Ye t, in order to justify legitimately so radical a distinction between these two sorts of punishment it is not enoug_h_ to demonstrate that they are employed for different~nd"s~Th-;; ··nature o-r a- practrce does not necessarily alter because the conscious intentions of those implementing it are modified. Indeed it could already have fulfilled the same role in former times without this having been perceived. In that case why should it be transformed by the mere fact that we realise more fully the effects that it produces? It adapts itself to the new conditions of existence created for it without thus undergoing any essential changes. This is what happened in the case of punishment. . It would indeed he mistaken to believe that vengeance is mere

wanton cruelty. Jt may very possibly consti!J!te by itself ac automatic, purposeless reaction, an emotional and senseless..

Impulse, and an unreasoned compulsion to destroy.But.in~ It tends to destroy was a threat to us. Therefore in reality it constitutes a veritable act of defence, albeit in stinctive and unre- llect1~ We wreak vengeance only upon what has done us harm, ~and what has done us harm is always dangerous. The instinct for

revenge is, after all, merely a heightened instinct of self- preservation in the face of danger. Thus it is far from true that vengeance has played in human history the negative and sterile role attributed to it. It is a weapon of defence, which has its own va lue - only it is a rough and ready weapon. As it has no conception of the services that it automatically renders it cannot consequently be regulated. It strikes somewhat at random, a prey to the unseeing forces that urge it on, and with nothing to curb its accesses of rage. Nowadays, since we are better aware of the purpose to be achieved, we also know better how to use the means at our disposal. We protect ourselves more systematically, and consequently more effectively. But from the very beginning this result was achieved, although less perfectly. Thus between the punishment of today and yesterday there is no great gulf, and consequently it had no need to change to accommodate itself to the role that it plays in our civilised socie ties. The whole difference lies in the fact that punishment now produces rt; effects with a greater awareness of what it is about.

46 The Function of the Dh·ision of Labour

Now, a lthough the individual o r socia l consciousness does not fail to influence the reality it highlights, it has no power to change the nature of that reality. The inte rnal st ructure of the phenomena remains unchanged , whether these arc conscious o r not. \\'e may therefore expect the essential e lements of punishment to be the same as before.

And indeed punishment has remained an act o f vcnge_a~~~,_11l least in part. It is claimed that we do not make the guilty person suffe r for the sake of suffering. It is nc\'crtheless true that we deem it fair that he should suffer. We ~ay be wrong, hut this is not what is at issue. We are seeking for the present to define punishment as it is or has been , and not how it should he. Ce rtainly the term 'public vindication', which recurs incessantly in the language of the law-courts, is no vain expression . If we suppose that punishment can really serve to shield us in the future, we esteem that above all it sho uld be an expiation for the past. What proves this are the meticulous precautions we take to make the punishment fit the seriousness of the crime as exactly as possible. These precaut ions would be inexplicable unless we believed that the guilty person must suffer because it is he who has done the injury, and indeed must suffer in equal measure. In fact this gradation is unnecessary if punishment is only a defence mechanism. It would undoubtedly be dangerous for society if the gravest criminal undertakings were placed o n the same level as me re minor o ffences. Yet in most cases there could only be advantage in placing the minor ones on the same level as the serious ones . One cannot take too many precautions against one's enemy. Can we say that the perpetrators of the most trivial offences posse.ss natures a ny less perverse and that, to counteract their evil instincts, less onerous punishments will suffice? But a lthough their tende ncies may be Jess tainted with vice, they are not the reby less inte nse . Thieves are as strongly disposed to thieving as murderers to homicide. The resistance shown by the former category is in no way wea ke r than that of the latter. Thus, to overco me it, we should have recourse to the same means. If. as has been said, it was solely a matter of repelling a ha rmful force by an opposing one, the la tte r's intensi ty sho uld be merely commensu- rate with that of the former, without th e quality of the ha rmful force being taken into consideration. The sca le of punishments should therefore comprise o nly very few gradatio ns. The punishment

Mechanical Solidarity, or Solidarity by Similarities 47

should vary only according to whether the subject is more or less hardened a criminal, and no t according to the nature o f the criminal act. An incorrigible thief should be treated like an incorrigible murderer. But in fact, even when it had been shown that the guilty person is de finite ly incurable, we would still not feel bound to mete out excessive punishment to him. This demonstrates that we have remained true to the principle of talion. although we conceive of it in a mo re lofty sense than once we did. We no longer measure in so material and rough terms either the gravity of the fault or the degree . of punishment. But we still consider that there should be an equilibrium between the two elements. whether we derive any advantage or not in striking such a balance. Thus punishment has remained for us what it was for our predecessors. It is still an act of vengeance, since it is an expiation. What we are avenging, and what the criminal is expiating. is the outrage to morality.

There is above all one form of punishment where this passionate character is more apparent than elsewhere: it is sha me that doubles most punishments, and that increases with them. Very often it serves no purpose. What good docs it do to disgrace a man who is no longer to live in the society of his peers and who has more than abundantly proved by his behaviour that more fea rful threats have failed to deter him? To disgrace him is understandable when there is no other punishment available, o r as a supplement to some comparatively trivial material penalty. Where this is not the case punishme nt does the same task twice over. One may even say that society only resorts to lega l punishments when others are inade- quate. If this is so , why continue with the latte r? They are a form of additional tribulation that serves no purpose, o r one whose sole reason is the need to repay evil with evil. They are so much the result of instinctive , irresistible feelings that they often spread to innocent objects. Thus the scene o f the crime, the tools used in it , the relatives of the guilty person - all sometimes share in the opprobium that we heap upon him. The causes tha t give rise to this diffused repression are a lso those of the organised repression that accompanies it. Moreover, we need only observe how punishment operates in the law-courts to acknowledge that its motivating force is entirely emotional. For it is to the emotions that both prosecuting and defending counsel address themselves. The latter seeks to arouse sympathy for the guilty person, the former to stir up the social

48 The Function of the Division of Labour

sentiments that have been offended by the criminal act, and it is under the influence of these opposing passions that the judge delivers sente nce.

Thus the nature of punishment has re mained essentially unchanged. All that can be said is tha t the necessity for vengeance is better directed nowadays than in the past. The spirit of foresight that has been awakened no longer leaves the field so clea r for the blind play of passion; it contains it within set limits, opposing absurd acts of violence and damage inflicted wantonly. Being more enlightened, such passionate action spreads itself less at random. We no longer see it turn upon the innocent, in o rder to have satisfaction come what may. Nevertheless it lies at the very heart of the penal system. We can therefore state that punishme nt consists of a passionate reaction graduated in intensity. 11

From where, however, docs this reaction spring? Is it from the individual or from society?

We all know that it is society tha t punishes. But it might be that it does not do so on its own behalf. Ye t what places beyond doubt the social character of punishment is that once it is pronounced, it cannot be revoked save by government, in the name of society. If it were a satisfaction granted to individuals, they would always be the ones to decide whether to commute it: one cannot conceive of a privilege that is imposed and which the beneficiary cannot renounce. If it is society alone that exerts repression, it is because it is harmed even when the harm done is to individuals, and it is the attack upon society that is repressed by punishment.

Yet we can cite cases where the carrying out of the punishment depends upon the will of individuals. In Rome ce rtain offences were punished by a fine tha t went to the injured party, who would waive it or make it the subject of bargaining: such was the case for covert theft, rapine, slander and malicious damage.18 T hese offences, termed private offences (delicta privata ), were contrasted with crimes proper, repression of which was carried out in the name of the city. The same distinction is found in Greece a nd among the Jews.19

Among more primitive peoples punishment seems occasionally to be a matter even more completely priva te, as the practice of the vendetta tends to show. Such societies are made up of e leme ntary aggregates, almost of a fa mily nature, which may convenient ly be designated clans. When an attack is committed by o ne or several members of a clan against another clan, it is the latter that itself

Mechanical Solidarity, or Solidarity by Similarities 49

punishes the offence committed against it.20 What at least appar- ently gives even more importance to these facts, from the theoreti- cal viewpoint, is that it has been frequently maintained that the ,-endetta was o riginally the sole form of punishment. Thus at first punishment may have consisted of private acts o f vengeance. But then, if today society is armed with the right to punish, it seems that this can only be by virtue of some sort of delegation by individuals. Society is only their agent. It is their interests that it looks after in their stead, probably because it looks after them better. But they are not prope rly those of society itself. In the beginning individuals took vengea nce themsel ves; now it is society that avenges them. Yet since the penal law canno t have changed its nature through this simple transfer, the re is thus nothing peculiarly social about it. If society appears to play a pre dominant role it is only as a substitute for individuals.

Yet however widely held this theory may be, it runs counter to the best established facts. We cannot instance a single society where the vendetta was the primitive form of punishment. On the contrary, it is certa ii:i_ that_ penal law was essentially religio us in origin. This is cleady the case of India and Judaea, since the law practised there was considered to be one of rcve lation .21 In Egypt the ten books of Hermes, which contained the criminal law and all o ther laws relating to the governance o f the state, were called sacerdotal, and Elien asserts that from earliest times the Egyptian priests exe rcised judicial power.22 The same holds true for ancie nt Germany.23 In Greece justice was considered to be an emanation from Zeus, and the passion as a vengeance from the god.24 In Rome the religious o rigins of the penal law arc made clear by ancient traditions,25 by archaic practices which subsisted until a late date, a nd by legal termino logy itse lf.26 But religion is something essentially social. Far from pursuing only individual ends, it exercises constraint over the individua l at every moment. It obliges h im to observe practices that · are irksome to him and sacrifices, whether great or small, which cost him something. He must give from his possessions the offerings which he is constrained to present to the divinity. He must take from his work o r leisure time the necessary moments for the performance of rites. He must impose upon himself every kind of privation that is commanded of him, and even reno unce li fe itself if the gods so decree. The religious li fe is made up entirely of abnegation and altruism. Thus icriminal law was o riginally re ligiousJaw, we may

. - - ' -· '.

50 The Function of the Division of Labour

b~~l.l.~e_ that the interests i~_served were social. _It is offences against themseives tfiai the gods- avenge by puni~hment. a nd not those of individuals. But the offences against the gods are offences against society.

Thus in~-\~~-r~ocie.ti.e~~ umerol!s offencf.S...aedho.s.e....tb.Cil are injurio_~~___!_2__J_!!e _ _pu_Q.lj<;_ji:H._e_~st: Qff~nce.!! .. '!g~i_l_!_~!___re.!jgig_n , ~u'sromS.authority, etc. We have only to see in the Bib.le, the laws of ·. Manou, and the records surviving of ancient Egyptian law, how slight in comparison is the importance given to prescripts that protect individuals. This is in contrast to the abundant growth of repressive legislation concerning the various forms of sacrilege, failure to observe the various religious obligations. and the requirements of ceremonial, etc.21 At the same time these crimes are those most severely punished . Among the Jews the most abominable crimes are those committed against religion. 211 Among the ancient Germans two crimes alone were punished by death, according to Tacitus: treason and desertion.29 According to Con- fucius and Meng Tseu, impiety is a more grievous transgression than assassination .'io In Egypt the slightest act of sacrilege was punished by death~'11 In Rome, at the top of the scale of criminality was to be found the crimen perduellionis. 32

But what then are these private punishments, instances of which we .. have rioted earlier? They are of a mixed nature, partaking of both a repressive and a · restitutory sanction . Thus the private offence in Roman law represents a kind of intermediate stage between real crime and the purely civil offence. It has features of both and hovers on the bounds of both domains. It is an offence, in the sense that the sanction prescribed by the law does not consist merely in putting matters to rights; the offender is not only obliged to make good the damage he has caused , but he owes something else in addition, an act of expiation. However, it is not entirely a crime since , although it is society that pronounces the sentence, it is not society tha t is empowered to apply it. This is a right that society confers upon the injured party, who alone can exercise it freely.33

Likewise, the vendetta is clearly a punishme nt that society recog- nises as legitima te, but leaves to individuals the task of carrying out. Thus these facts merely confirm what we have stated regarding the nature of the penal system. If this kind of intermediate sanction is partly a private matter, to a corresponding extent it is not a punishment. Its penal nature is proportionately less pronounced

Afeclwnical Solidarity, or Solidarity by Similarities 51

when its social character is less evident, and vice versa. Private vengea~~c. is th~refore far from being the prototype of punishmel')t; Qn. the_~ontrary, it is_ only _ an _ incomplete punishment. Far from crimes against the person being the first to be repressed, in the beginning they are mere ly situated on the threshold of the penal law. They only moved up in the scale of crimina li ty as society correspondingly assumed control of them more completely. This process, which we need not describe, was certainly not effected by a mere act of transferral. On the contrary, the histo ry of th is penal system is nothing but a progressive succession of encroachments by society upon the individual, or rather upon the primary groupings that it comprises. The effect of these encroachments was increas- ingly to substitute for the law relating to individuals that relating to socicty.34

But the characteristics outlined above belong just as much to that diffused repression which follows acts that a rc merely immoral as to legal repression. What distinguishes the latter, as we have said, is that it is organised . But in \Vhat docs this organisation consist?

When we renect upon the penal law as it functions in present-day societies we represent it as a code in which very precise punishments arc attached to crimes equally precisely defined . It is true that the judge enjoys a certain latitude in applying to each particular case these general dispositions. But in its essentials the punishment is predetermined for each category of criminal acts. This elaborate organisation is not, however, an essential element in punishment, because many societies exist in which punishments are not pre- scribed in advance. In the Bible there are numerous prohibitions which are utterly categoric but which a rc nevertheless not sanctioned by an expressly formulated punishment. Their penal character, however, is not in dispute, for, although the texts remain silent regarding the punishment, at the same time they express so great an abhorrence for the forbidden act that one cannot suspect for a moment that it will remain unpunished.as Thus there is every reason to believe that this silence on the part of the law simply relates to the fact that how a crime was to be repressed was not determined. Indeed many of the stories in the Pentateuch teach us that there were criminal acts whose criminality was undisputed, but where the punishment was de termined only by the judge who applied it. Society was we ll aware that it was faced with a crime, but the penal sanction that was to be a ttached to it was not yet defined.38

52 The Function of the Division of Labour

Moreover, even among those punishments laid down by the legislator there are many that are not precisely specified. Thus we know that there were different forms of capital punishment which were not all on the same footing. Yet in a great number of cases the texts speak only generally of the death penalty, without stating what manner of death should be inflicted. According to Sumner Maine the same was true of early Rome; the crimina were tried before the assembly of the people which, acting in a sovereign capacity, decreed what the punishment was to be by a law. at the same time as establishing the truth of the charge.37 Moreover, even until the sixteenth century the general principle of the penal system 'was that its application was left to the discretion of the judge, arbitrio et officio judicis . ... Only the judge was not allowed to devise punishments other than those that were customary.' 38 Another consequence of this judicial power was to make dependent upon the judge's discretion even the nat ure of the criminal act, which was thus itself indeterminate.39

So it is not the regulation of punishment that constitutes the distinctive organisation of this kind of repression. Nor is it the institution of a criminal procedure. The facts we have just cited suffice to show that for a long time this was lacking. The onlv O!;Eanisation met wjth everywhere that punishment proper existed is thus reduced to the establishment of a court of law. In whatever ;ay this was constituted, whether it comprised th e people as a whole or only an elite, whether or not it followed a regular procedure both in investigating the case and in applying the punishment, by the mere fact that the offence, instead of being judged by an individua l, was submitted for consideration to a properly constituted body and tha t the reaction of society was expressed through the intermediary of a well-defined organism, it ceased to be diffuse: it was organised. The organisation might have ~en more complete, but henceforth it existed .

Thus punishment constitutes essentially a reaction of passionate feeling, graduated in intensity, which society exerts through the mediation of an organised body over those of its members who have violated certain rules of conduct.

Now the definition of crime we have given quite easily accounts for all these characteristics of punishment.

Chapter III

Solidarity Arising from the Division of Labour, or Organic Solidarity

The very nature of the restitutory sanction is sufficient to show that the social solidarity to which that law corresponds is of a comolctelv different kind.

The distinguishing mark of this sanction is that it is not expiatory, but comes down to a mere restoration of the 'staiii."f quo ··anre"; ~ff~liprnportion to the offence 1s not in!J.!£tcd uptrn the one. Wh011as broken ~~c Jaw or fai led to acknowledge it; he is me~Jx condemned to su~I certain acts have a lready been performed, the judge resto res them to what they should be. He pronounces what the law is, but does not talk of punishment. Damages awarded have no penal character: they are simply a means of putting back the clock so as to restore the past, so far as possible, to its normal state. It is true th at Tarde believed that he had discovered a kind of civil penal law in the awarding of costs, which are a lways borne by the losing party.1 Yet taken in this sense the term has no more than a me taphorical value. For there to be punishment there should at least be some proportionality between the punishment and the wrong, and for this one would have to es tablish exactly the degree of seriousness of the wrong. In fact the loser of the case pays its costs even when his intentio ns were innocent and he is guilty of nothing more than ignorance. The reasons for this rule therefore seem to be entirely different. Since justice is not administered free, it seems equitable that the costs should be borne by the one who has occasioned them. Moreover, although it is possible that the prospect of such costs may stop the ove rhasty litigant, this is not eno ugh for them to be considered a

68

Organic Solidarity 69

punishment. The fear of ruin that is normally consequent upon idleness and neglect may cause the businessman to be energetic and diligent. Yet ruin, in the exact connotation of the term, is not the penal sanction for his shortcomings.

Failure to observe these rules is not even sanctioned by a diffused form of punishment. The plaintiff who has lost his case is not disgraced, nor is his honour impugned. We can even envisage these rules being different from what they are without any feel- ing of repugnance. The ·idea that murder can be tolerated sets us up in arms, but we very readily accept that the law of inherit- ance might be modified, and many even conceive that it could be abolished. At least it is a question that we are not unwilling to discuss. Likewise, we ~ ree without difficulty that the laws regard- ing easements or ·usufruc might be framed differently, or that the mutual obliga 1 s of buyer and vendor might be deter- mined in another way, and that administrative functions might be allocated according to different principles. Since these prescriptions do not correspond to any feeling within us, and as generally we do not know their scientific justification, since this science does not yet exist, they have no deep roots in most of us. Doubtless there are exceptions.&e do not tolerate the idea that an undertaking entered into that is contrary to morals or obtained either by violence or fraud can bind the contracting partieSJrhus when public opinion is faced with cases of this kind it showsftself less indifferent than we have just asserted, and it adds its disapprobation to the legal sanction, causing it to weigh more heavily. This is because there are

o clear-cut artitions between the various domains of mo~ On the contrary, they form a con 1 , (}nsequenttyaajacent areas · t where r ~~

,the same time. Nevertheless the propos1 ion we have enunciated remains true int he overwhelming majority of cases. I\ demonstrates that rules where sanctions arc restit11tory either £0Astitute no part at all of the collective consciousness. or subsist in it in only a weak state. Repressive law corresponds to what is the heart and centre of ·--- - ... _____ ...... ·--- -·-·- the common consciousness. Purely moral rules are already a less central part of it. Lastly, resiitutory law springs from the farthest zones of consciousness and extends w~il beyond them. The more it becomes truly itself, the more it takes iis distance.

This characteristic is moreover evinced in the way that it functions. Whereas repressive law tends to stay diffused throughout

70 The Function of the Division of Labour

society, restitutory law sets up for itself ever more specialized bodies": consular courts, and industria l and administrative tribunals

, of every kind . Even in its most ge neral sector, that of civii°lawJt is bi-·ought into use only by special officials - magistrates, lawyers, etc., who have bee n equipped for their role by a very special kind of training.

But although these rules a re mo re o r less o utside the collective consciousness, they do not merely concern private individuals. If this were the case, restitutory law would have nothing in common with social solidarity , for the relationships it regulates would join individu als to o ne another without their being linked to society. They would be mere events of private life, as are, for instance, relationships of friendship. Yet it is far from the case that society is absent fro m this sphere of legal activity. Generally it is true that it does not intervene by itself and of its own volition: it must be solici ted to do so by the parties concerned. Yet although it has to be invoked, its inte rvention is none the less the essential cog in the mechanism, since it a lone causes that mechanism to function ._!0.~ society that declares what the law is, through its body of repre~~n ta· tives.

However, it has been maintained th at this role is in no ~an _especially social one, hut comes down to b~!.!?_[..!hat o.LC1.~.9..12f!.llit tor_ of private interests. Consequently it has been held that any private individual could fulfil it , and that if society adopted it , this was solely for reasons of convenience_ Yet it is wholly inaccurate to make

. . society a kind of third-party arbitrator be tween the other parties. When it is induced to intervene it is not to reconcile the interests of individuals. It does not invest igate what may be the most advan· tageous solution for the protagonists, nor does it suggest a compromise. But it does apply to the particular case submitted to it the general and traditional rules of the Jaw. Ye t the law is pre-eminently a social matter, whose object is absolutely different from the interests of the litigants. The judge who exami!}es a divorce petition is not concerned to know whether this form of separation is really desirable for the husband and wife, but whether the causes invoked for it fa ll into one of the categories stipulated by law.

Yet to assess accurately the importance of the intervention by society it must be observed not only at the moment when the sanctio n is applied, or when the relationship that has been upset is restored, but a lso when it is instituted _

Organic Solidarity 71

Social act iou_js in fact necessary either to lay a foundation for._QI tdmodif , a number of legal relationshi s re this form of aw, and which the assent o t e interested parties is not adequate

enough either to institute or alter. Qf this nature are those relat ionships in particular that concern personal~- Although marriage is a contract, the artne rs can neither draw it Uj?ilor rescm 11 at wtll. The same holds good for alL.o.the-r domestic relationships. and a fortiori for all those regulated by administrativ~ law. It is true that obligations that are properly contr~~:i~!S.~n-be e_ntered into or abrogated by the mere ~jll_J~ .. <!greef!1ent _oLthf.!_ parties. ~t we roust bear in nJjo(Ct-hat. if a contract h~i bir:idillg. fu~ it is society which confers that force. Let us assume that it does not give its blessing to the obligatio ns that have been contracted; these then become pure promises possessing only moral- authority.2 ver contract therefore assumes that behind the parties who bind each other, society is there, u1 are to tntervene ~nd to enforce respect for any undertakings e ntered into. Thus it on! bestow - · · · <itor forc<r1ii"'~tracts that have a social value in thems~-~hat-is, those that are in conformity with t e rules of law. We shall even occasionally see that its intervention Is still more positive. It js therefore present in every relationship determined b restitutory law, even in ones that a ear the most completely__Qrivat~d its presence, although not felt, at eas u~ormal Gond+tions, is rt~ssential.3

~ce the rules where snncti?ns are restitutory do not involve the common consci ss ihe relationships that they determine are not of the sort that affect everyone in 1scnmrnate y. 1s means that they are instituted directly, not between the individual and society, but between limited and particular elements in society, which the9 link to one another. Yet on the other hand, since societt iL!Wt absent it must necessarily indeed be concerned to som~ extent, and feel some repercussions. i:hen. depending upon the intensity with which jt feels them, it intervenes at a greater or lesser distance, and more or less actively, through the mediation of s~ !Jodies whose task it is to represent it~ These r~lationships are therefore very different fro~...!_h9s~ r~gl!la_t~_<J by re~iYela~m:..._ the latter jQirulir_e,ctly, without any intermediary, the individual consciousness to that.cl,g>fi~_ty.J..t.ha!J~,. -~~1.u:liYjdualJlil!Jsel!~­ society.

But these relationships can assume two very different forms.

72 The Function of the Division of Labour

Sometimes they are negative and co me down to a mere abstention; at other times they are positive, or ones affording co-operation. To the two categories of rules that determine either kind of relationship correspond two kinds of social solidarity between which a distinc- tion must be drawn.

II

The negative relationship tha t may serve as a model for the others is that which joins a thing to a person.

Things in fact are a part of society, just as persons are, and play a specific part in it. Thus their relationship to the body social needs to be determined. So we may say tha t there exists a solidarity of things whose nature is special enough to be outwardly interpreted in legal consequences of a very particula r character.

Jurisconsults in fact distinguish between two kinds of rights: they term one kind 'real', the other 'personal' . The right of property and mortgage belongs to the first kind, the right to credit to the second kind. What characterises 'real' rights is that they alone give rise to a right of preference and succession. In this case the right that I possess over some thing is exclusive of any other that might be established after mine. If, for example, a property has been successively mortgaged to two creditors, the second mortgage cannot in any way restrict the rights acquired under the first. Moreover, if my debtor disposes of the thing over which I possess a mortgage right, this is in no way affected, but the third party acquiring it is obliged to pay me or to surrender what he has acquired. Now, for this to be the case, the legal bond must link directly, without the mediation of any third pe rson, the thing specific to me in my legal sta tus. This privileged situation is thus the consequence of the solidarity peculiar to things. When , on the contrary, the right is personal, the person under an obligation to me can, by contracting new obligations, give me co-creditors whose right is equal to mine and , although I possess as surety all my debtor's goods, if he disposes of them they are re moved from my sure ty by being no longer part of his estate. This is because no special relationship exists between these goods and myself, but one between the person of their owner and myself.4

We can thus see what this 'real' form of solidarity consists of: it

Organic Solidarity 73

links things directly to persons, but not persons with one another. In an extreme case someone, believing himself to be alone in the world, may exercise a 'real' right, leaving other persons out of account. Consequently,_filnce it is onJy_jhrough.the mediation of persons that things are integrated into society, the solidarity that anse~diom-this-inteiiation is wholly negative. It does not cause incHviduai-;ms-fumove towardscoin-inon ends, but only causes things to gravitate around those individual wills in an orderly fashion. Because 'real' rights are limited in this way, they do not come into conflicts; disputes are forestalled, but there is no active co-operation, no consensus. Let us envisage such agreement to be as complete as possible; the society where it obtains, if it does so alone, will resemble a huge constellation in which each star moves in its orbit without disturbing the motion of neighbouring stars. Such a solidarity thus does not shape from the elements drawn together an entity capable of acting in unison . It contributes nothing to the unity of the body social.

From the above, it is easy to determine to what part of restitutory law this form of solidarity corresponds: it is the corpus of 'real' rights. Now, from the very definition that has been given of these, it follows that the law of property is its most perfect exemplar. Indeed the most perfect relationship that can exist between a thing and a person is one that wholly subordinates the former to the latter. Yet this relationship is itself very complex, and the various elements that form it can become the object of as many ' real' secondary rights, such as usufruct, easements, usage and habitation. All in all we may say that 'real' rights comprise property law in its various forms (literary, artistic, industrial, personal estate, real estate) and its different modes, such as those regulated by the second book of the Civil Code. As well as this book, French law recognises four other 'real' rights, but which are only ancillaries to or possible substitutes for personal rights: surety, property usufruct, preferential right and mortgage (arts. 2071-2203). It is appropriate to add to these all matters relating to the law of inheritance, the law of testacy, and conseque ntly, of intestacy, since the latter creates, when it has been declared, a sort of provisional succession. Indeed inheritance is a thing, or a set of things, over which heirs and legatees have a 'real' right , whether this is acquired ipso facto by the decease of the former owner, or whether it is only opened up as the result of a judicial act, as happens for indirect heirs and legatees with a

74 The Function of the Division of Labour

particular title. In all these cases the legal relationship is directly established, not between one person and another, but between a person and a thing. The same is true for gifts made by will, which is no more than the exercise of the 'real' right th at the owner disposes of over his possessions, o r at least over the portion of which he is free to dispose.

But there are relationships between one person and another which, although in no way 'real', are nevertheless as negative as those just mentioned, and express a solidarity of the sa me kind.

Firstly, there are relationships that bring into play the exercise of ' real' rights proper. Iri fact , inevitably the functioning of these sometimes brings up against one another ho lders of those rights themselves. For example, when one thing is added on to another, the owner of the thing deemed to be the principal one becomes at the same time the owner of the other one; on ly ' he must pay the other person the value of the thing joined to his' (art. 566). This obligation is clearly a personal one. Likewise any owner of a party wall who wishes to raise its height is obliged to pay the co-proprietor an indemnity for the obligation imposed (art. 658). A legatee with a particular title to an article must address himself to the main legatee to obtain the release to him of the thing bequeathed, although he acquires a right to it immediately upon the decease of the testator (art. 1014). But the solidari ty that these relationships express does not differ from those we have just discussed: in fact they are established only to make good or forestall any damage occasioned. If the holder of a ' real' right could always exercise it without ever going beyond bounds, with each person remaining in his own domain, there would be no reason for any legal relationship. But in fact such overlapping is constantly occurring between these dif- ferent rights, so that one cannot real ise the value of one right without encroaching upon the other rights that limit it. In one case the thing over which I enjoy a right is in the hands of another; this is what happens with a legacy. In ano ther, I cannot enjoy my right without harming that of another ; this is what occurs for certain easements charges. Relationships are therefore needful to repair the damage if it has already been done, o r to prevent it happening. But there is nothing positive about these relationships. They do not cause the pe rsons whom they bring into contact to co-operate together; they do not imply any s uch co-operation . But they merely restore or maintain, in the new conditions that have been brought

Organic Solidarity 75

about, that negative solidarity which has been disturbed in its functioning by circumstances. Far from uniting people, they only arise in order to unravel more efficiently what has been united by force of circumstance, to re-establish boundaries that have been violated and to reinstate each individual in his own domain. These relationships are so closely identical to those of a thing with a person that those who drew up the civil Code have not dealt with them separately, but have treated them at the same time as 'real' rights.

Finally, the obligations that arise from an offence or a quasi- offence arc of exactly the same character.5 Indeed they constrain each individual to repair the damage he has wrongfully caused to the legitimate interests of another. Thus they are personal, but the solidarity to which they correspond is clearly entirely negative, since they consist not in rendering a service, but in refraining from harm. The tie the breaking of which they penalise is wholly external. The only difference between these relationships and the previous ones is that, in the one case, the break arises from a misdeed and in the other, from circumstances determined and foreseen by the law. But the system of order disturbed is the same one; it arises, not from competition, but purely from abstention.6 Moreover the rights whose infringement gives rise to these obligations are themselves 'real', for I am the owner of my body, my health, my honour and my reputation by the same right and in the same way as the material things controlled by me.

To sum ur.:....J_bc_ruleS--rclating_. io-.-'.:r~.<!1'_. rights and personal relationships that are established by virtue of them forl}'\ il definjte system.whose function is. n~t to lin_k_ together.the.different parts of sru:iety.~buton . the contr.~ry _ _!?. ~.~-~c:_h_tl!_~_m_ ~~2.n.l~!l~~l!Q!h~r,_and .. f!}ark_<?UU:learly .the barriers separati~g- ~~~r.1:1'... Thus they do not correspond to any positive social tie. The very expression 'negative solidarity' that we have employed is not absolutely exact. It is not a true solidarity, having its own life and being of a special nature, but rather the negative aspects of every type of solidarity. The first condition for an entity to become coherent is for the parts that form it not to clash discorda ntly. But such an external harmony does not bring about cohesion. On the contrary, it presumes it. Negative solidarity is only possible where another kind is present, positive in nature, of which it is both the result and the condition.

Indeed the rights that individuals possess both over themselves and things can only be determined by means of compromise and

76 The Function of the Division of Labour '

mutual concessions, for everything that is granted to some is necessarily given up by others. It is some times sta ted that the level of no rmal development in a n individual could be deduced e ither from the concept of human personality (Kant), or from the idea of the individual orga nism (Spence r). This is possible, although the rigour in this reasoning is very questionable. In a ny case what is certain is that, in historical reality, it is not upon these abstract consiqerations that the moral order was founded. In fact, for a man to ack~owledge that others h ave rights, not only as a matter oftog\c, but as one of daily living, he must have agreed to limit his own. Consequently this mutual limita tion was o nly realisable in a spirit of understanding and ha rmony. Now if we assume a host of individuals with no previous ties binding them to one another, what reason might have impelled them to ma ke these reciprocal sacrifices? The need to live in peace? But peace in itself is no more desirable than war. The latter has its drawbacks a nd advantages. H ave there not been peoples and individuals whose passion has at all times been war? The instincts to which it co rresponds are no less powe rful than those that peace satisfies. No do ubt shee r weariness o f hostilities can for a while put an end to them, but this simple truce can be no more lasting than the temporary lassitude that brought it about. This is all the more true of outcomes due merely to the triumph of force . They a re as provisional and precarious as the treaties that terminate wars between nations. Men need peace only in so far as they are already united by some bomf ofSoCiabifli;.: I n th i~ ~;;the feelings that cause them to turn towards one a~other modify entirely naturally promptings of egoism . From another viewpoint the society that encloses them, unable to exist save when not shaken at every instant by so me upheaval , bears down upon the m with all its weight to force them to ma ke the necessary concessio ns to one another. It is true that we sometimes see inde pendent societies reach agreement to dete rmine the e xtent of their respective rights over things, that is, over their territory. But the extreme instability of these re lationships is precisely th e best proof that negative solidarity a lone is not sufficient. If today, a mong cultured peoples, it seems to be stronger, if th at portion of inte rnational law that determines what might be call ed the ' real' rights of E uropean societies perhaps possesses more authority than once it did. it is because the differe nt nations of Europe are also much less inde pe ndent of one another. This is because in ce rtain respects they

Organic Solidarity 77

are a ll part of the same society, still incohesive, it is true, but one becoming increasingly conscious of itself. What has been termed the balance of power in Europe marks the beginning of the organisation of that society .

It is customary to distinguish carefully between justice and charity, th at is. the mere respect of others' rights, from every act that goes beyond that purely negative virtue. In both these kinds of p ractices may be seen two independe nt strata of ethics: justice, by itself, might constitute its basic fou ndation ; charity might be its crowning glory. The distinction is such a radical one that, according to the protagonists of a ce rtain kind of ethics, justice alone is needful fo r the smooth functio ning of social life. Altruism is scarcely more than a private virtue, which it is laudable for the individual to pursue, but which society can very well do without. Many even view its inte rve nt ion in public life with some disquiet. From what was stated previously we can see just how far thi s conception is from according with the facts . In reali ty, for men to acknowledge and mutually guarantee the rights of one anothe r, they must first have a mutua l liking, and have some reason that ma kes them cling to one another and to the single society of which they form a part. Justice is filled with charity, o r to employ once more our expression, negatjye solidarity is only the emanation of another solidarity that is positixe in nature: it is the repercussion of social feelings in the sphere of ' real' rights-~vhichcom'e• • from_a_ ctlfferent source.lhus -there- -is nothing specific about justice but it 'is the -n~sary accompani- ment to every kind o solida rity. H is necessarily encountered everywhere men live a life in common, whether this results from the social division of labour or from the attraction of like to li ke.

III

If the rules just discussed are separated from 'restitutory law; what remains constitutes a system that is no less- "well defined, and includes domestic law, contractual law, commercial law, procedural law and administrative and constitutional Jaw. T he relationships tha; are regulated by these laws are of a nature entirely different from the preceding ones; t_hey express a positive contribution, a_ co-operation deriving essen tially from the division of Jabour.

78 The Function of the Division of Labour

The questions resolved by domestic law may be reduced to the following two types: (1) Who is entrusted with the different domestic functi ons? Who is the spouse, who the father, who the legitimate child, who the guardian, etc.? (2) What is the no rmal type of these functions and their relation- ships? The stipulations laid down to meet the first of these questions are those that determine the status and conditions required to contract a marriage, the necessary formalities for the marriage to be a valid one, the conditions regarding legitimate, illegit ima te and adoptive children, the mode of selecting a guardia n, etc.

On the other hand, it is the second question that is settled by the section on the respective laws and duties relating to husband and wife, on the state of their relationship in case of divorce, nullity or separation (including division of property), on the powers of the father, o n the legal consequences of adoption, on administration by a guardian and on his relationship with his ward, on the role of the family council vis-a-vis guardian and ward, on the role of parents in the case of suspension of civil rights, and on the constitution of a board of guardians.

This section of civil law has therefore as its purpose the deter- mination of how the various family functions a re allocated and what should be the relationship of each function to the others. Their significance is that they express the special solidarity that unites the members of a fa mily as the result o f the domestic division of labour. It is true that we are scarcely accustomed to conceiving the family in this light. It is very often believed that what brings about this cohesio n is exclusively a commonality of sentiments and beliefs. Indeed there are so many m atters shared in common between the members of the family group th at the special character of the tasks incumbent upon each member easily eludes us. This prompted Comte to declare that domestic union excludes 'any thought of direct and co mmo n co-operatio n towards any common goal'.7 But the legal organisation of the family whose essential traits we ha\'e just brie fly recalled, demonstrates the rea lity of these functional differences a nd their importance . The histo ry of the family from its o rigins shows in fact a mere uninterrupted movement towards dissociation, in the course of which these vario us functions, at first undivided and overlapping, have gradually separated out and been

Organic Solidarity 79

constituted independently, being distributed among the various relatives according to sex, age and dependent relationships, so as to make each relative a specialised functionary in domestic socie ty.8

Far from being only an ancillary and secondary phenomenon, this family division of labour, on the contrary, dominates the whole of the development of the family .

The relationship of the division of labour to contractual law is no less markeil.

The contract is indeed the supreme legal expression of co- gperation. It is true that there exist so-called 'benevolent' contracts that bind only one of the parties. If I make an unconditional gift to another person. if I assume voluntarily the trusteeship of some object, or a power of attorney, there ensue for me precise, clear-cut obligations. Yet no real co-operation between the contracting parties exists since burde ns .are laid upon one of them alone. Yet co-operation is not entirely absent from the phenomenon; it is merely gratuitous or unilateral. For instance, what is a gift if not an exchange without reciprocal obligations? These kinds of contract are the refore merely a variation of contracts of a truly co-operative nature.

Moreover, they are very rare, for it is only exceptionally that gratuitous acts fall under legal regulation. As for the other contracts, which comprise the overwhelming majority, the obliga- tions to which they give rise are correlative, either through reciprocal obligations or through services previously rendered. The undertaking entered into by the one party stems either from that entered into by the other, or from a service already performed by the latter .9 _Now such reciprocity is only possible wheref.o-oper~!iQn exists and this in turn does not occur without the divisi<?n of labour. To co-operate, in fact, is to shar~ wjth one_anot_her_a common task. If this--task is subdivided into tasks qualitatively simila·r~ although indispensable to one another, there is a simple or first-level division of labour. If they arc different in kind, there is composite division of. labour, or specialisation proper.

This latte r form of co-operation is moreover the one that the contract by far the most usually expresses. The only one of different significance is the contract of association, and also pe rhaps the marriage contract, in so far as it determines the share in household expenses to be contributed by husband a nd wife. Even for this to be the case, the contract of association must place all associates on the

80 The Function of the Division of Labour

same level, with identical contributions and functions. But this is a case which never exactly occurs in matrimonial relations, because of the division of labour between husband and wife. Against these rare kinds of contract let us contrast the innumerable contracts whose purpose is to harmonise functions that are special and different: contracts between buyer and seller, exchange contracts, contracts between employers and workers, between hirer and person hiring, between lender and borrower, between the repository and the depositor, be tween innkeeper and traveller, between one enjoying a power of attorney and his mandatory, between the creditor and the pledge given by the debtor, etc. In ge_ncral, the con.t_~actisthe symbol of exchange. Thus not unjustifiably Spcn.cer was able to lerm'a contract physiological, one like that which at every moment occurs in the e xchange of substances between the different organs of the living body.1° Now it is plain that exchange always assumes some more or less developed division of labour. It is true that the

. contracts we have just mentioned are still of a somewhat general character. But we must not forget that law only draws the general contours, the main features of social relationships, those that are to be found identical in the different spheres of collective life. Thus each one of these types of contract assumes a host of others, more specialised, of which it is, as it were, the common blueprint, but which at the same time regulates the others, those in which relationships are established betwee n more specialised functions. Thus despite the relative simplicity of this scheme, it is enough to demonstrate the extreme complexity of the facts that it epitomises.

Moreover, this specialisation of functions is directly manifest in the commercial code , which especially regulates contracts specific to commerce: contracts between agent and principal, between carrier and consignor, be tween the bearer of a bill of exchange and the drawer, between shipowner and creditors, or shipowner and captain and crew, between the freighting agency a nd the charterer, between lender and borrower in a contract duly legally engrossed, between insurer and insured. Yet here again a great gap exists between the comparatively general nature of the legal prescriptions and the diversi ty of special functions whose relationships are regula ted by these , as is shown by the impo rtant position accorded in commercial law to custom.

Where the commercial code does not regulate contracts proper, it determines what certain specia l functions must be, such as those of

Organic Solidarity 81

the stockbroker, the dealer , the ship's captain, th e receiver in a case of bankruptcy. so as to ensure solidarity in all the various parts of the commercial system.

Procedural law, whe the r this be criminal , civil or commercial, plays the same role in the legal system. The sanctions of legal rules of all kinds can only be applied through a ce rtain number o f ancillary functions. such as those of magistrates, defence lawyers, solicitors, jurors, plaintiffs and defendants. Procedures de cide the manner in which the functions must be applied and relate to one another. It states what they should he and what is the role of each one in the general life of the corpus o f the law.

It seems to us that. in a rational classificat io n of legal rules, procedural law should be considered merely as a variety of administrative law: we do not see what rational difference separates the administration of justice from the rest of administration. Whatever the rights or wrongs o f this viewpoint, administrative law proper regulates ill-defined functio ns that a re termed administra- tive , 11 just as procedural law does judicial functions. It determines what their normal type is, a nd their relationships either with one another or with the diffused functions of society. One would only need to except a certain number of rules which are generally classified under this heading, although they are penal in character.12

Finally, constitutional law performs the same role for governmental functions.

It may well be surprising to sec classified under the same heading administrative and political law with what is usua\Iy termed private law. Yet firstly. such a connection is needed if the nature of the sanctions is taken as the basis for classificatio n. Nor does it seem possible for us to adopt any other system if we wish to proceed scientifically. Moreover, to separate co mpletely these two kinds of Jaw we would have to admit th at private law really exists, whereas :'t\re believe that a ll Jaw is public, because all Jaw is social. All the ~unctions of society arc social. just as all the functions of an organism 'are organic. The economic functions, just like the others, are also of this character. Moreover, even among the most diffuse functions there are none that a re not to some extent subject to the effects of the machinery of government. Thus from this viewpoint between them there is no more than a difference in degree.

To sum up: the relationships that are regulated by .co-operative law, with its restituto ry sanctio ns, and the solidarity these

82 The Function of the Division of Labour

relationships express. resu lt from the social division of labour. Moreover, it is explicable that, in general, co-operative relation- ships do not carry with them any other form of sanctions. Indeed, special tasks, by their very nature, are exempt from the effects of the collective consciousness. This is because if something is to be the object of shared sentiments, the first condition is that it should be ~. that is, present in every consciousness. and that each individual may be able to conceive of it from a single, identical viewpoint. Doubtless, so long as functions a re of a certain general nature, everyone can have so me feeling for th em. Yet the more specific they become the more also the number is restricted of those who are aware of each and every function. Consequently the more they overflow beyond the common consciousness. The rules that determine them cannot therefore possess that superior force and transcendent authority which , when it suffers harm, exacts expia- tion . It is indeed also from public opinion that thei r authority springs, just as do penal rules, but from an opinion that is specific to certain sectors of society.

Moreover, even in those special circles where the rules are applied, and where consequently they are evoked in the minds of people, they do not reflect any very acute feeli ngs, nor even in most cases any kind of emotional state .. For, since they determine the manner in which the different functions should work iogether .. inthe various combinations of circumstances that may arise, the objectsto· which they relate are not ever-present in the consciousness. We are not always having to administer a guardianship or a trusteeship,13

nor having to exercise our rights as creditor or buyer, etc. Above all, we do not have to exercise them in particular conditions. But the states of consciousness are strong only in so far as they are permanent. The infringement of these rules does not therefore touch to the quick the common spirit of socie ty, nor, at least usually, that of these special groups. Consequently the infringement cannot provoke more than a very mode rate reaction. All that we require is for the functions to work togethe r in a regular fashion. Thus if this regularity is disturbed, we are sat isfied if it is re-established . This is most certainly not to say that the development of the division of labour cannot have repercussions in the penal law. There are, as we already know, administrative and governmental functions _where certain relationships are regulated by repressive law, because of the specia l character marking the organ of the common consciousness

Organic Solidarity 83

and everything appertaining to it. In yet other cases, the bonds of solidarity linking certain social functions may be such that once they are broken repercussions occur that are sufficiently general to proYoke a reaction of punishment. But for reasons we have already stated, these consequences are exceptional.

In _the end this law plays a part analogous in society to that of the nervous system in the organism. That system. in effect, has the task of regulating the various· bodily functions in such a way that they work harmoniously together. Thus it expresses in a very natural way the degree of concentration that the organism has reached as a result of the physiological division of labour. Therefore we can at the different levels of the animal scale ascertain the measure of that concentration according to the development of the nervous system. Likewise this means that we can ascertain the measure of concentra- tion that a society has reached through the social division of labour, according to the development of co-operative law with its restitu- tory sanctions. One can foresee that such a criterion will be of great util ity to us.

IV

~g.ative.sq_)j_dar.ity_on .i.t~.<n".n brings about no integration, and ill!ce, moreover, there is noth~_:;_~cif}_c in it~~:;.~a_!!_ide_~tify only. two kinds of positive solidarity, distinguished by the following characteristi1;~ · ··- d. • • • •• • •

(1) The first kind links the individual directly to society without any intermediary. With the second kind he depends upon society because he depends upon the parts that go to constitute it. (2) In the two cases, society is not viewed from the same perspective. In the first , the term is used to denote a more or less organised society composed of beliefs and sentiments common to all the me mbers of the group:_!hll; is the colleoivc t}'pe. On the contrary, in the second case the society to which we are solidly joined is a system of different and special functi ons united by definite relationships . Moreover, these two societies are really one. They arc two facets of one and the same reality, but which none the less need to be distinguished from each other. (3) From this second difference there arises another which will serve to allow us to characterise and delineate the features of these two kinds of solidarity.