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 UNIV ERSITY LIBRARY UNIVERSITY OF CA LIF OR NIA, SAN DleGQ

LA JOllAt CALIFORNIA

l~I T he Free Press

A Divisio n o f Macmilla n , I nc. New York

Introduction ~ 198 4 by Lewis A . Cosc r Translation© 1984 by Highe r and Further Educat io n Di\ i'io n. Macmilla n

Publishe rs Ltd Copyrigh t © 1984 by The Free Press

A Division of Macm illan . In c.

All rights reserved. No pa rt o f this book may tic rqm>Juccd nr tran~mitrnJ in any form or by a ny me ans. electronic or me chan ical, includin)! phol<lc<>pyini:. rccordini:. or by any in formatio n storage a nd ret rieval system. without pcrmi~'ion in "'ritin!! from the Publisher.

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Library of Congress Cataloging in Publication Dahl

Durkheim, Emile, 1858-1 9 17. The division of labo r in societ y. Translation of: De la division du trava il social. Originally published: Emile Durkhei m on th e di visio n o f labor in socic tv. New York: Macmillan , 1933. ' Includes bibliog ra phica l reference s. I. Division of la bor . I. Ha lls, W. 0 .

11. Title. HD51.0 9613 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 inve stigate the nature of this bond is therefore to ask what is the cause of the punishment or, more precisely, what in essence the crime co nsists of. · Assuredly crimes o f different species exist. But it is no less certain

that all these sp§i~s of crime have something in co mmon . This is proved by the reactio n that they provoke from society: the fact that punishment, except for diffe rences in degree, always and every- where exists. The oneness o f the effect reveals th e oneness of the cause. Undoubtedly essential resemblances exist no t only amo ng all crimes provided for in the legislation of a single society, but among all crimes recognised as such and punished in different types of societ y. No matter how different these acts termed crimes may appe ar to be at first sight, they cannot fail to h ave some common basis. Universall y they strike the moral consciousness of nations in the same way and universa lly produce the same consequence. All are crimes, that is, acts repressed by prescribed punishments. Now the essential pro perties of a thing lie in those observed wherever it exists and which a re peculia r to it. Thus if we wish to learn in what crime essentially co nsists, we must distinguish those traits identical in all the varieties of crime in different types of society. No t a single one of these types may be omitted. Legal conceptio ns in the lowest forms of society are as worthy of consideration as those in the highest forms . They are facts that prove no less in structive. 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 me re anomalies or pathological cases which we may legitimately dismiss.

Even where th e criminal act is certainly harmful to society, the degree of damage it causes is far from being regul arly 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 diso rganise the body social much more seriously tha n 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 o rganism? 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 h armful 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 practice s 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 rul es it is plainly because, rightly or wrongly, they esteem this systematic and · exact obedience to be indispensab le , 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 universa lly condemned by the members of

34 The Function of the Division of Labour

each society . Nowadays the que stion 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 senti ments , 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 th e robber and swindler? In countries where feeling for the monarchy is still alive , do not crimes of lese-majeste aro use 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 provide s 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 o f a pat hological 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

obliga tions, and to defin~ th e sanct.ions attached to them.Jn civil law, and more generally m every kmd of law where sa nctions arc restitutory , the le gislator approa ches and re so lves these two proble ms separa te ly . Firstly, he d e termines the n a ture of the obligation as exactly as possible; only then does he st a te the m anner in which a sanction should b e applied . For example, in the chapter of the French civil code devoted to the resp ective d u ties of husband and wife, the se right s a nd dut ies are spelt out in a p osi tive way, but nothing is said as to what happens when these duties are not ful fille d by one or the other party'1T'he sanctio n must be so ught e lsewhere in the Code. Occasionally the sa nctio n is even take n totall y for gra nte d . Thus Article 214 of the civil code prescribes that the wife must live with her husband; o ne may deduce t hat the husba nd can oblige her to return to the marital home, but this sanction is nowhe re formally laid down . By ~'?n trast~pre~_rib~~_9_nl_y

_sanctions a nd _says _no thing abo:Ut the obligations to .whic_ll __ t.!!ey ~eia te. It d oes not ord.ain th at tii~-i i-fe of anothe r person must be ~cted, b ut prdains._the death of. the_ murde.r~r- It does n ot first state, as docs civil la_~: This is the duty; but states immediate ly: This is the punishm e nt. 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 a nd acce ptcJt>Y e vcry o dy. When a::f!Jst()i:_l]:!" r~~cquires the st a tus of a written law arials codified, it is beca use litigious questions require a solution more closely defined. If the custo m continued quietly to functi o n, provoki ng no argument or di fficulty, there wo.uld .b~no reason fo r it t o undergo th is t ransformation . Since rf.o.aU aw is only-codified-so.auo .es!abl!sh a slidi ng_sc.ale of pen alties, i,Us there.fore because a .cust? m by it.self ca.n give rjse_ to doubt. Coqvf.l-sely, 1f rules whose v10latwn ent ails pumshment need n~Juridica1~xpression it is because they are no t a t all a subject of dispute, and because everyone feel s their authority .3 ·

It is true tha t sometimes the Penta t e uc h does not Jay down sa nctions, although, as we sh all see , it contains little else than penal rules. This is the case for the Ten Commandments, as they are formulated in Exodus 20 and D e uteronomy 5. But this is because the Pe ntateuch, although it fulfilled the function o f a code, is not properly one. Its purpose is not to gather togeth er into a single system, and to detail with a view to their appl ica tio n, the penal rules followed b y the Jewish pe ople . So far short does it fall of forming a

36 The Fun ction of the Division of Labour

codification that the vario u s sections comprising it d o not even seem to have been dra wn up at th e same time. It is above a ll a summary o f the traditions of all kinds through which the J ews e xplained to the m selves, a nd in their own way, the o rigin s of the world. of their socie ty and of their m a in socia l practices. Thus if the Pentateuch e nunciate s cert a in duties to which p unishment s we re certainly attached, this is not because they were unknown o r failed to be ackno wledged by the J ews, or because it was necessary to reveal them to them. On the contrary, sin ce the b ook is merely a compilation of na tion al legends, we m ay he sure th a t a ll it contai ned was graven o n everyone's consciou sness . Nevertheless it was essent ial t o reca pitulate in a set form the popular be liefs abo ut the origins of these precepts, the historical circumstances in which it was assumed tha t they had bee n promul ga ted. and the sources of their authority. From this viewpoi nt, th erefore. the determination of Jlllnishments becomes something incidcnta l. 4

Fo r the sa me reason the operation of repressive justice a lways 'tends to so m e extent to remain diffu se. In very different types of socie ty it is no t exe rcised through a special m agistra te, but so~ a whole shares in it to a greater or lesse r degree. ln'J)rimiti ve 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 m e . w hereas civil matters fell to the praetor, crimina l ones were judged by the people, a t first by the cornices curiates, a nd then , from the law of the Twelve Tabl es onwards, by the comices centuriates. Until the end of the Republic, although in fact the people had d e lega ted its powers to sta nding commissions, they rema ined 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 no mina lly included a ll citizens over the age o f thirty .7 L astl y, in Germano-Roman n a tions societ y intervened in the exe rcise of these same functions in t he form o f the jury. Thus t he diffuse s ta te that pervades this sphere of judicial po wer would be in e xplicabl e if the rules whose observa nce it e nsure s, a nd in consequence the se nti- ments these rules reflect, we re not immanent in everyone's con- scio us n ess. It is true that in other cases th e power was held by a privileged cl ass or by special magistrates. Yet th ese facts do not detract from the value as proo f of th e other ones mention ed. Although the feeling s of the collectivity a re no longer expressed

Mechanical Solidarity, or Solidarity by Similarities 37

save through certain intermediaries, it does not follow th at 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 a n 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 rece iving the surrender of his liberty. Thus the collective sentiments to which a crime corresponds must be distinguished from other sentiments by some striking characteristic: th ey must be of a certain average inte nsity. 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 accomplish ed since the beginning of the century in th e 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, th e 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 a nd 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 fund s, 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 Th e Function of the Division of Labour

and consequently r e mains unchanged. Generally religious la w is always repressive: it is essenti ally co nservative . This unchangeable character of penal Jaw demon strat es the streng th o f resistance exerted by the collective sentiments to which it corresponds. Converse ly, the greater ma lleabilit y of purely moral laws and the rel a tive swiftness with which the y evolve d e monstrates the lesser strength of the sentiments unde rlyin g t hem. They have ei ther deve lo ped more rece ntly and have not yet h ad time to pe ne trate d eeply the individual consciousness, or their roots arc in a state of decay and are fl oat ing to th e surfa ce.

A last addition is needed for o ur definition to be accurate . If, in genera l, the sentiments t hat purely moral sanctions protect, that is, ones that a re diffuse, are less in te nse and less solidl y o rganised tha n tho se protected by puni shme nts prope r, e xcep tio ns 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 sentimen ts th a n is the respect for property or public autho r ity. Yet th e wayward son and even the most arrant egoist a re not treated as criminals. Co nsequently it is not e n o ugh for these sentiments t o be stron gly held; they must be precise. Indeed, e very single one relates to a ve ry clearly defined practice. Such a practice may be simple or complex, positive or nega tive, that is, consisting in an action underta ken or avoided; but it is always d e te rmin ate. It is a question of doing or not d o ing this o r that, of no t killing or wou nding, or utte ring a particul ar formula , o r accomplishing a particular rite, etc. By con trast, senti me nts such as filial love or charity are vague a spira tion s to very general objects. Thus penal rules are notable for t heir cl a rity and precision, "'"hilst purely moral rule s are generally somewha t fluid in character. Their inde term inate nature no t infreq uently m akes it hard to formulate a ny clear definition of them. W e m ay state very generally that people should work, or have compassion for oth ers , etc., but we cannot determine precisely the m anner or e xtent to which they should do so/Consequently there is roo m here for varia tio ns and shades of meaning} By contrast , becau se the sentime_nts embodied in pe nal rules are determinate, th ey possess a much greater uniformity . A s they cannot be inte rpreted in differ e nt 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 _socie ty forms a determinate system with a life of its pw_n. 1t..ia n be t.eny1 ed_~he .. collective or common consciousness. · Undoubtedly the substra tum of this co nscioiisness does not ·consist of a single organ. By de finition it is diffused over society as a whole, but nonetheless possesses specific ch ar acteristics that_ m?_ke .iL a. 2_ig_i_nc:!iv~_reality. [n fact it is independent of_ the _ particul_ar conditio ns inwhlcfiTndividuals find the mselves. Individuals pass on, but it abides. It is the same in no rth and south, in large towns and in small, and in different professions. Likewise it does not change with every ge ne ration but, o n the contrary, links successive ge ne rations to one a nother. Thus it is something totally - different from th~ consciousnesses of individ'Uais,-aTihough it is ·oniy "i-e a[ised in incii~idu~ls . Jt is t~e psychologica~ of soc_ie!y, ~.i:!<:~~i~-~-~~~-i~~ prope rties, conditions for existence and mo de of rlevelopment, just as -inmviduaT t)'iies-ao--;-iJucTna -different fa shio n For this- reason it has the right to be designate d by a special term. ltls true that the one we have employed above is noiw ith_o.ufambiguity. Since the terms 'collective' and 'socia l' are often t a ken as synohyms, o ne is inclined to believe thatthc collective con sciousness is the e ntire social co nscio usness, that is, co-terminous with the psychological life o f 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 func tions - appertain to the p sychological o rder , s ince they consist of syste~s of representa tion and action. H owever, they clea rly lie outside the common consciousness. To avoid a confusion9- that has occurred it would perhaps be best to- invent a _technical ex pression which would specifically designate the sum total of social simil a rities. However , since the use of a new term, when it is not abso lute ly necessary, is not without its ~Ls_:;i_fl_yantages, we shall re tain the more gen era ll y u sed exprcssion;~ollecti ve (o r co mmon) consciousness') but a lwa ys kee ping in mind the res tricte d sense in which we are em loying it.

Thus ~ mm in u the above analysis, we may state tha t an act is crimi;a l when it offe nds the strong, well-defined states of th~ collec tive con sciou sness. 10

- This proposition, taken literally, is scarcely disputed, a lthough usually we give it a meaning ve ry different from the o ne it should have. It is take n as if it expressed , not the essential c haracteristics of the crime, but one of its repercussions. We we ll 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 define d . It is not disputed th a t 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 orga nised 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 sati sfy that condition refers to the opposi tion 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!] A s 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 becaµ se we like them, ra th e r 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 e vil 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 fee ls whe n it comes into contact with their objects? This is doubtl ess so, but all such sentiments do not originate in this way. Ma ny, if not the majority, derive from utte rly different cause s. Anything that obliges our activity to t a ke on a definite form can give rise to habits that result in dispositions which

Mech anical Solidarity, or Solidarity by Similarities 41

then have to be satisfied. Mo reove r, these dispos itions alone are truly funda mental. The others are o nly special forms of them and are more determinate. Thus to find charm in a particular object, collective se nsibility must already ha ve b een constituted in such a way as to be able to appreciate it. If the corresponding sentiments are a bolished, an act most disastrous for society will not only be capable of being tole rated , but honoured and held up as an example. Pleasure canno t cre ate a di sposition out of no thing; it can o nly link to a particul a r end those dispositions that already exist , provided tha t end is in accorda nce with their original nature.

Yet there are cases where the above explanation doe s not appear to apply. There are acts that are repressed with greater severity than the stren gth of their condemnation by public opinion. Thus combinations be tween officials, the encroachment by judicial authorities on the administra tive powers, or by religious upon secul ar functions a re the object of a repression which is dispropor- tiona te to the indig natio n they arouse in the individu al conscious- ness. The misappropria tion o f public property leaves us fairly indifferent, a nd yet for it fairly stiff punishments are meted out. It may even happen that a n 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, o r against ove rloaded vehicles on the public highway. Yet we h ave no grounds for distinguishing these offen ces completely from othe rs. Any radical di stinctionu would be arbitrary, since all exhibit in varying d egree the sa me external criterion . Doubtless in none of these ex amples does the punishment a ppea r unjust. If the punishme nt is no t rejected by public opinion, such opinion, if left to its own devices, would either not insi st upon it at all or would show itse lf Jess demanding. Thus in all cases o f thi s kind the criminality does not derive - o r at least not e ntirely so - from the degree o f se nsitivity of the co llective sentiments which are o ffend ed, but may be traced to a nother cause.-

It is undoubtedly the case th a t o nce some government al authority is instituted it possesses enough power of itself to attach penal sanctio ns on its own initiative to certain rules of co nduct. By its own act ion it h as the ability to create ce rtain crimes or to a ttach greater seriousness to the crimina l 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 o the r of the bodies that control the life o f socie ty. Should we then concede that they a re two types o f

42 The Function of the Dfrision of Labour

crime springing from two different causes? Such a n 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 fund a 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.

Whe re, 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 the se 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 highwa ys and waterways is penalised by a fine. But even the repeated breaching of contracts, or persistently unscrupulous conduct in economic relation ships, merely necessitates the appor- tionment of damages. The machinery o f government certainly plays an outstanding role in social life. but there are othe r 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 a uthority 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 e nemies. 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 word s 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 parta kes of the a uthority that the collectivity exercises over the consciousness of individuals, and from this stems its strength. Yet once this stre ngth 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 o f social life which is auto nomous, capable of producing its own spontaneous actions. Precisely because of the hegemony this strength has acquired. these actions are to tally independent of any external impulsion. On the other hand, since it is merely derived from the p o wer imman ent in the common consciousness, it necessarily possesses the sa me properties and reacts in similar fashion , eve n when the common consciousness does not react entirely in unison. It thus wards o ff 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 c a tegorises as crimes those acts that are harmful to it, even when the sentiments of th e collectivity are not affected to the same extent. Neverth eless, it is from these latter sentiments that it rece ives the whole power allowing it to create crimes and offences. As well as the certainty th at the power cannot come from elsewhere a nd yet cannot come from nothing, the following facts (on which we shall expa nd fully in the rest o f this volume) confirm this explanation. TJ.!e §£.!:WC of the actio n th a t governmental authority exerts ayer the .number __ o f criminal acts, and the designation of what is criminal . i;iepe od u~ the power it possesses. This power in turn may be measured eithe:r by the d egre e of authorjt~ thatit exercises over its citize ns or by th~ . .degre_c.'DLse rio.usne.ssJ.lttrjbute d to the crimes directed against it. Wc51rnlls..e.~ that it i~_i.!1_ lowersoc1cties-that this auth o rity is gr6.tes.t a_nd.~here_ this seriousness_~_e_igh_s most heavily, a nd mQit.!9.Ye.r.Jhat i1.isj !1_ ~~C::.~_!!_e_l!_-:same types _of society t~at_ thec()ll_f'.~!iye c~m~cio1!.§7 ne~~ possesses most power. ~2

Thu-s fi is always to th e g211~tive consciousness tha t we must return. From it, directly or indirectly, all ~rim~~a_T(~flows. C rime is not o nly injury done to interests which may be serious ; it-is a lso an offence aga in st an authority which is in some way t ranscende nt. Experientia lly speaking, there exists no mora l force superior to tha t 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 stole n 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 itse lf. In its hands the pain it inflicts i~ only a systematic instrument for its rrotection. Society punishes. not becau se 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 e noug_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 h ave 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 full y the effects that it produces? It adapts itself to the new condition s of existence created for it without thus undergoing any essential changes. This is what happe ned in the case of punishment. . It would indee d he mistaken to believe th at vengeance is mere

wa nton 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 d estroy was a threat to us. Therefore in reality it constitutes a veritable act of defence , albeit in st inctive and unre- llect1~ We wreak vengeance only upon what h as done us harm, ~and what has done us harm is always dangerous. The in stinct for

revenge is, after all, merely a h eight ened instinct of self- preservation in the face of danger. Thus it is far from true that vengeance has played in hum a n histo ry 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 a t random, a prey to the unseeing forces that urge it on, and with n othing 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 m eans at our disposal. We protect ourselves more systematically, and consequently more effectively. But fro m the very beginning this result was achieved, although less perfectly. Thus between the punishme nt of to day and yesterday there is no great gulf, and consequently it h ad no need to change to accommodate itself to the role th at 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 highlight s, it has no power to change the n a ture of that reality. The inte rnal st ructure of the phenomena rema in s unchange d , whether th ese 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 remai ned an act o f vcnge_a~~~,_11l least in part. It is claimed that we do not make th e guilty person suffe r for the sake of suffering. It is nc\'crtheless true that we de em 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 h ow it should he . Ce rtainly the term ' public vindication', which recurs incessantly in the lang uage of the law-courts, is n o vain express ion . If we suppo se that punishment can really se rve to sh ield us in the future, we esteem that above a ll it sho uld be an expiation for the p ast. What proves this are the meticulous precautions we take to make the punishment fit the seriousn ess of th e crim e as e xactly as possible. These precaut ions would be in explicable unless we beli eved th a t the guilty person must suffer because it is h e who has don e the injury, and indeed must suffer in equal measure. In fact this gradation is unnecessa ry if punishment is only a defence m echanism. It would undoubtedly be d angerou s for soci e ty if the gravest crimina l undertakings were placed o n the sa me level as me re minor o ffences. Yet in most cases there could only be adva nta ge in placing the minor one s on the same level as the se rious ones . One cannot take too many precautions against one's enemy. Can we say th a t the perpetrators o f the most trivial offe nces p osse.ss n a ture s a ny less perverse and that, to counteract their evil instin cts, less onerou s punishments will suffice? But a ltho ugh the ir tende n cie s may be Jess tainte d with vice, they are not the reby less inte nse . Thie ves are as strong ly disposed to thieving as murde rers t o homicide. The resi sta nce shown by the former cat egory is in no way wea ke r than th at of the la tter. Thus, to overco me it, we should have re course to th e same mean s. If. as has bee n said , it was solely a matter of repelling a h a rmful force by an opposing one, the la tte r's inte n si ty sh o uld be m e rely commensu- ra te with that of the form e r, without th e quality of the h a rmful force being taken into con sideration. The sca le of punish ments sho uld the refore com prise o nly very few gradatio ns . The p unishment

M echanical Solidarity, or Solidarity by Similarities 47

should vary only according to whe ther the subject is more or less hardened a criminal, a nd no t according to the nature o f the criminal act. An incorrigible thief should be treated like an incorrigible murdere r. But in fact, even when it had been shown that the guilty pe rson is de finite ly incurable , we would still not feel bo und to mete out excessive punishment to him . This demonstrates tha t we have remained true to th e principle of talio n. although we conceive of it in a mo re lofty sense than once we did. We no lo nge r measure in so material and rough terms either the gravity of the fault or the degree . of punishme nt. 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 rem ain ed for us what it was for our p redecessors. It is still an act of vengeance, since it is an expiation. Wha t we a re avenging, and what the criminal is expiating. is the outra ge to morality.

The re is above all one form o f punishment where this passionate character is more apparent than elsewhere: it is sha me that doubles mo st puni shments, and that increa ses with them. Very often it serves no purpose. Wh at good docs it d o to disgrace a ma n who is no longer to live in the society of his peers and who h as more than abunda ntly proved by his b e haviour that more fea rful threats have failed to deter him? To disgrace him is unde rstanda ble when there is no other puni shment available, o r as a supplement to some comparatively trivial material penalty. Where this is not the case pun ish me nt does the same t ask twice over. One may even say tha t 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 additio nal tribula tio n that serves no purpose, o r one whose sole reason is the n eed t o repay evil with evil. T hey are so much the result of instinctive , irresistible feelings th at th ey o ft e n spread to innocent objects. T hus the scene o f the crime, t he tools used in it , the relatives of the g uilty person - all so metimes share in the opprobium tha t we heap upon him. The causes tha t give rise to this diffused repression are a lso those o f the orga nised re pression that accompani es it. Mo reover, we need only observe ho w punishment operates in the law-cou rts to ack now ledge th a t its motivating force is entirely e mo tion al. For it is to the emotions tha t both prosecuting and defe nding counsel address the mse lves. The latter seeks to arouse sympathy for the guilty pe rson, th e 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 h as re mained essentially unchanged. All that can be said is tha t the n ecessity for vengeance is better directed nowadays th a n in the past. The spirit of foresight that has been awakened no longer leave s the field so clea r for the blind play of passion; it contains it within se t limits, oppo sing absurd acts of violence and damage inflicted wantonly. Be ing more enlightened, such passion ate action spreads itself less at random. We no lon ge r see it turn upon the innocent, in o rder to have satisfaction come what may . Neve rtheless it lies a t 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 reac tion 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 o nce it is pronounced , it cannot be revoked save by government, in the name of society. If it were a satisfaction granted to individuals, the y would always be the ones to decide whether to commute it: one cannot conceive o f a privilege th a t is imposed and which th e beneficiary cannot renounce. If it is society alone that exerts repression, it is beca use 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 ca rrying out of the punishment depe nds upon the will of individuals. In Rome ce rtain offences we re punished by a fin e 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, r apine, slander and m a licious d a m age .18 T hese offences, termed private offences (delicta privata ), were con trast ed with crimes proper, repression of which was carried out in the name of the city. The same distinc tion is found in Greece a nd among the J ews. 19

Among m o re primitive peoples punishm e nt 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 o f e le me ntary aggregates, almost of a fa mily nature, whi ch may conven ie nt ly be designated clans. Whe n a n a ttack is committed by o ne or seve ral members of a cl an against another clan, it is the latter tha t itself

Mechanical Solidarity, or Solidarity b y Similarities 49

punishes the offen ce committed again st it.20 What at least appar- ently g ives even more importance to these facts, from the theo reti- cal viewpoint, is that it has been frequently maintained th at the ,-endetta was o rigina lly the sole form of punishment. Thus at first punishm e nt may h a ve consisted of priva te a cts o f vengeance. But then, if today society is armed with the right to punish , it se ems that this can only be by virtue of some sort of delegation by individuals. Society is only their agent. It is the ir interests that it looks after in their ste a d , probably b e c a use it looks after them better. But they are not prope rly those of society itself. In the be ginning individuals took ve ngea nce the msel ves; now it is society th a t a ve n ges the m . Yet since the penal law canno t have change d its nature through this simple transfer, the re is thus nothing peculiarly social about it. If society appears t o play a p re dominan t role it is only as a substitute for individua ls.

Yet however widely held this theory m ay be , it runs counte r to the best e stablished fa cts. We c a nnot instance a single society where the vendetta was the primitive form o f punishm e nt. On the contrary, it is ce rta ii:i_ that_ penal law w as essent ia lly re ligio us in origin. This is clea dy the case of India and Jud aea , since the law practised there wa s considered to be one of rcve lation .21 In Egypt the t en books of Hermes, which contain e d the criminal la w and a ll o th er laws rel ating to the gove rnance o f the st ate , were call e d sacerdota l, a nd Elie n a sserts tha t fr o m earliest times th e Egyptian priests exe rcised judicial power.22 The same holds true for a ncie nt Germany.23 In Greece justice was considered to be an e manatio n from Zeus, a nd the passion as a vengeance from the god. 24 In Rome the re ligio us o rigins of the pe nal law arc made clear by a nci e nt traditions,25 by a rcha ic prac tices which subsisted until a late date , a nd by legal termino logy itse lf. 26 But religion is something essentially socia l. Far from pu rsu ing only indiv idu a l ends, it exercises con stra int over the individua l at eve ry mome nt . It obliges h im to observe practices that · a re irksome to him a nd sacrifices, whether great o r sm a ll, which cost him something . He must give from his possessions th e offerings which he is constra ine d to present to the divinity. He must take fro m his work o r leis ure time the n e cessary mome nts for th e performance of rites. He must impose upon him self every kin d of privation that is commanded of him, and even reno unce li fe itse lf if the gods so decree . The religious li fe is made up e ntire ly o f ab negat ion a nd a ltruism . Thus icriminal law was o rigin ally re lig iousJaw, we may

. - - ' -· '.

50 The Fun ction 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 su rviving of ancient Egyptian law, how slight in comparison is the importance given to prescripts tha t 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, insta nces 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 dom ains. 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 th a t is empowered to apply it. This is a right that society confers upon the injured party, who alone can exe rcise it freely.33

Likewise, the vendetta is clearly a punis hme 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 _ a n _ inco mplete puni shment. Far from crimes aga inst the perso n being th e first to be repressed, in the beginning they are mere ly situated on the threshold o f the penal law. The y only moved up in the scale o f crimin a li ty as society co rrespo ndingly assumed control of them more complet ely. This process, which we nee d not de scri be, was ce rtainl y not effected by a mere act of transferral. On th e contrary , the hi sto ry of th is pen al system is nothing but a progressive succession of e ncroachments by society upon the individual, or rather up o n th e primary groupings that it comprises. The effect of these en croachments was incre as- ingly to substitute for the law relating to individuals th a t rel ati ng t o socicty.34

But the characteristics o utlined above belong just as much to that diffused repression which follows acts that a rc mere ly immoral as to legal repressio n. What distinguishe s the la tter, as we have said, is that it is organised . But in \Vhat docs this organ isa tio n consist?

Whe n we renect upon the pen al law as it functions in prese nt-day societi es we represent it as a code in which ve ry precise puni shments arc attached to crimes equally precisely define d . It is true tha t the judge enjoys a certain latitude in a pplyin g to each particular case these general dispositions. But in its esse ntials the punishme nt is predetermined for each category of crimin al acts. This elaborate organisation is not, howeve r , an essenti al ele ment in punishme nt , because many societies exist in which punishments a re not pre- scribed in advance. In th e Bible there are numerous prohib itions which are utterly categoric but which a rc neverth eless not sanctioned by an expressly for mulated punishme nt. 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 a n abhorre nce fo r the forbidden act th a t one cannot suspect for a mome nt that it w ill remain unpunished.as Thus there is every reason to believe that this silence on the part of the law simply rel ate s to the fact that how a crime was to b e rep ressed was not determ ined. Indeed many of the stories in the Pentate uch teach us that there were criminal act s whose criminality was undisputed, but where the punishment was d e 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 ye t defined.38

52 The Function of the Division of Labour

Moreover, even a mong 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 grea t 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 wh at 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 genera l 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 reg ulation of punishment that constitutes the distinctive organisation of this kind of repressio n. 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 th at punishment proper existed is thu s reduced to the establis hment 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 foll owe d 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 r eaction 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 he nceforth it e xisted .

Thus punishment constitutes essentially a reaction of passionate fe eling, 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 quit e 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 rest itutory sanction is sufficient t o show that the social solidarity to which that law corresponds is of a comolctelv different kind.

The distinguishin g mark of this sanction is that it is not expiatory, but comes down to a mere resto ration of the 'staiii."f quo ··anre"; ~ff~liprnportion to the offence 1s n o t in!J.!£tcd uptrn th e 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 pronoun ces what the law is, but does not talk of punis hment. Damages awa rded have no penal character: th ey are simply a means of putting back the clock so as t o restore the past, so far as possible, to its n o rm al state. It is true th at Tarde be lieved that he had discovered a kind of civil penal law in the awarding of costs, which a re a lways borne by the losing party.1 Yet ta ken in this sense the te rm h as n o more than a me t aphorical value. For there to be punishment there sho uld at least be some proportionality between the punishment a nd the wrong, a nd for this one would have to es tablish exactly the degree of seriousn ess of the wrong . In fact the loser of the case p ays its costs even when his inte ntio ns were innocen t and h e is gui lty of n o thin g more than ignorance. The reasons for this rule therefore seem to be e ntirely different. Since justice is not administe red free, it seems equitable that the costs should be borne by the o n e who h as occasioned the m. Moreove r, although it is possible that the prospect of such cost s m ay stop the ove rhasty litigant, this is not e n o ug h fo r them to b e 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 m o re specialized bodies": consul a r courts, and indu stria l and administrative tribunals

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

But although these rul es a re mo re o r less o utside the collective consciousness, they do no t m ere ly conce rn private individuals. If this were the case, rest itutory law would h ave nothing in common with social solidarity , for the relationships it regulates would join indiv idu als to o ne an other without their being link ed to society. They w o uld be mere event s of private life, as are, for instance, relationships of friendship. Yet it is far from the case th a t society is abse nt fro m this sphere of lega l activity. G e nerally it is true tha t it does not interve ne by itse lf and of its own volitio n: it must be solici te d to do so by the parties concerned. Ye t 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 d eclares what the law is, through its body of repre~~n ta· tives.

However, it has been maintained th a t thi s role is in no ~an _e specially 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 individu al could fu lfil it , and that if socie t y adopted it , this was solely for reasons of convenience _ Yet it is wholly inaccurate to make

. . society a kind of third-pa rty arbitrator be tween the other parties. When it is induced to intervene it is not to reconcile the interests of individuals. It does not inve st igate what may be the mos t advan· tageous solution for the protagonist s, n o r does it suggest a compromise. But it does a pply to the particular case subm itted to it the ge ne ral and traditio nal rules of the Jaw. Ye t the law is pre-eminently a social matter, whose object is absolutely diffe rent from the interests of the litigants. The judge wh o exami!}es a d ivorce petition is not concerned to know whether this form of separation is re ally de sirable 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 importan ce of the intervention by society it must be obse rved not only at the mome nt when the sanctio n is applied, or when the rel a tion ship th at has been upset is restored, but a lso w hen it is institute d _

Organic Solidarity 71

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

enough either to institute or alter. Qf this nature are those re lat 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 regul a ted by administrativ~ law. It is true tha t obligations that are properly contr~~:i~!S.~n- be e_nte re d into or abrogated by the mere ~jll_J~ .. <!gre ef!1ent _oLthf.!_ parties. ~t we roust bear in nJjo(Ct-hat. if a contra ct h~i bi r:i dillg. fu~ it is society which confers that force. Let us assume that it does not give its blessing to the obligatio ns th at 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, socie ty is there, u1 a re to tntervene ~nd to e nforce 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 conformi ty with t e rules of law. We shall even occasionall y see th at its intervention Is still more positive. It js therefore present in every relationship d e termin e d b restitutory law, even in o nes that a ear the most completely__Qrivat~d its presence, although no t felt, at eas u~ormal Gond+tions, is rt~ssential.3

~ce the rules where snnc ti?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 socie ty, but between limited and particular ele me nts in society, which the9 link to one another. Yet on the other ha nd , since societt iL!Wt absent it must necessarily indeed be concerned to som~ extent, and feel some repercussions. i:hen. depending upon the in te nsity with which jt fe e ls the m, it intervenes at a grea ter or lesser dista nce, and more or less actively, through the mediation of s~ !Jodies whose task it is to represe nt 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 intermedia ry, the individual consciousness to that.cl,g>fi~_ty.J..t.ha!J~,. -~~1.u:liYjdualJlil!Jsel!~­ socie ty.

But these relationships can assume two very different forms.

72 The Fun ction of the Division of Labour

Sometimes they are negative and co me down to a mere abstention ; at other times they are pos itive, or ones affording co-operation. To the two categories of rules that determine either kind of re lationship 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 pe rson.

Things in fact are a part of society, just as persons a re, and play a specific part in it. Thus their relation ship 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 outward ly interpreted in legal co nsequences of a very particul a r character.

Jurisconsults in fact distinguish between two kinds of rights: they term one kind 'real', the other 'perso nal' . The right of property and mortgage belongs to th e fir st kind, the right to credit to the second kind. What characterises 'real' rights is that they alone give ri se to a right of preference and succession. In this case th e righ t that I possess over some thing is exclusive of an y o ther th at might be established after mine. If, for example, a property has been successively mo rtgaged to two creditors, the second mortgage cannot in any way restrict the rights acquired under the first. Mo reove r, if my debto r disposes of the thing over which I possess a mortgage right, this is in no way affected, but t he third party acqu iring it is obliged to pay me or to surrender what he has acquired. No w, for this to be the case, the lega l bo nd must link directly, without the mediation of any third pe rson, the thing specific to me in my legal sta tus . This privileged situatio n is t hus the consequence of the solidarity peculiar to things. When , on the contrary, the right is personal, the person under an obligation to me ca n, by contracting new obligations, give me co-credito rs 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 re latio nship exists between these goods and myself, but one between the pe rson of their owner and myself.4

We can thus see what this 'real' form of solidarity con sist s 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 t owa rdscoin-inon ends, but only causes things to gravitate around those individual wills in an orderly fashion. Because 're a l' 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 possi ble; 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 a bove , 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 ve ry 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 subordin ates the former to the latter. Yet this relationship is itself very compl ex, 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 a ppropriate 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 Th e Function of the Division of Labour

particula r 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 sa m e is true for g ifts made by will, which is no more tha n the exercise of the 'real' right th at the owner disposes of ove r his possessions, o r at least over th e portion of which he is free to dispose.

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

Firstly, there are relationships that bring into play the ex ercise of ' real' rights proper. Iri fact , inevitably the functio ning of these some times brings up against one a nother ho lders o f 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 obliga tion is clearly a personal o ne. Lik ewise any o wner of a party wall who wi shes to raise its heig ht is obl iged to pay the co-proprietor an indemnity for the obligation imposed (art. 658). A legatee with a particul ar title to an article must address himself to th e main legatee to obtai n the release to him of the thing bequeathed, although he acquires a right to it immediately upo n 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 fac t they are establish ed only to make good or forestall a ny damage occasioned. If the holde r of a ' real' right could always exercise it without ever going beyond bounds, with each pe rson remaining in his own domain , t he re would be no reason for any legal relationship. But in fact such ove rlapping is constantly occurring between th ese d if- ferent rights, so that o ne cannot real ise the value of one right without encroaching upon the o ther r ig hts that limit it. In one case th e thing ove r which I enjoy a right is in th e hands of ano ther; this is what happens with a legacy. In ano ther, I cannot enjoy my right without harm ing that of anoth er ; this is what occurs for certain easements charges. Relationships a r e the refore n eedful 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 t hey bring into contact to co-operate together; they do not imply an y s uch co-operation . But they merely resto re or ma intain, in the new cond itions th at 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 fro m a misdeed and in the other, from circumstances determined and foreseen by the law. But the system of order disturbe d is the same one; it arises, not from competition, but purely from abstention.6 Moreover the rights whose infringement gives rise to these obligations a re 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 so cial 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 exte rnal 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 a nd

76 The Fun ction of the Division of Lab our '

mutua l concessio ns, fo r everything tha t is g ranted to some is necessarily given up by others. It is some times sta ted th at the level of no rm al deve lopment in a n individu al co uld b e de duced e ither from the concept of hum an personality (Kan t) , or fr o m the idea of the individu al orga nism (Spence r). This is possible , alt hough the rigour in this reasoning is very questionabl e. In a ny case what is certa in is th at, in histo rical re a lity, it is no t upo n these abstract co nsiqe rations that the mo ral order was fou nded. In fa ct, fo r a man to ack~owledge that others h ave rights, no t onl y as a matter oftog\c, but as one of da ily living , he must have agre ed to li m it his own. Co nsequentl y this mutual limit a tio n was o nly rea lisable in a spirit of understa nding and ha rmo n y. Now if we assume a host of ind ividuals with no previous ties binding them to one another, wha t reason might have impelled them to m a ke these recipro cal sacrifices? The need to live in peace? But pe a ce in itself is no more des irable than war. The latter has its dra wbacks a nd advantage s. H ave there not been peop les and individu als whose passion has at all times been wa r? The instincts to which it co rresponds are no less powe rfu l than those that peace sati sfies. No do ubt shee r wear in ess o f hostilities can for a while put an end to them, but this simple truce can be no mo re lasting t han the temporary lassitude that brough t it about. This is all the more true of outco m es due merely to t he t rium ph of fo rce . They a re as provis io nal a nd preca rio us as t he treaties that terminate wars betwee n natio ns. Men need pe ace o nly in so fa r as they are already united by some bomf ofSoCiabifli;.: I n th i~ ~;;the feelings tha t cause the m to turn to wards one a~other modify enti rely na t u ra lly promptin gs o f ego ism . Fro m a nothe r viewpoint t he socie ty that encloses the m , un able to e xist save whe n not shaken at every instant by so me upheaval , bears down u pon the m with all its wei ght to fo rce t hem to m a ke the necessary co ncessio ns to one another. It is true t hat we som etimes se e inde pende nt societies reach agreeme nt to dete rmine the e xten t of the ir respect ive rights over things, th at is, ove r the ir te rritory . But the extre m e instability of these re lat ionships is precise ly th e best p roo f tha t nega tive solidarity a lo ne is not sufficie nt. If to day, a mong cultured peoples, it seems to be stronge r, if th at portion o f inte rnatio nal law that determine s what might be call ed the ' real' righ ts of E uropean societies pe rha ps possesses more authority than o nce it d id. it is because the di ffere nt natio ns o f Europe are a lso much less inde pe ndent of o ne ano th er. This is because in ce rta in respects they

Organic Solidarity 77

are a ll part of the same socie ty, still incohesive, it is true, but o ne becom ing increasingly conscious o f itself. What h as been termed the balance of power in Europe marks the beginning of the organisation of that socie ty .

It is customary to distinguish carefully betwe en justice and charity , th a t is. the mere respect of others' righ ts, fro m every act that goes b eyond tha t purely n egative virtue. In b o th these kinds of p ractices may be see n two independe nt strata of ethics: justice, by itse lf, might constitute its basic fou nda tion ; charity might be its crowning glory. The distinction is s uch a radica l o ne that, according t o the prot agonists of a ce rtai n kind o f ethics, justice a lo ne is needful fo r the smoo th functi o nin g of socia l life. Altruism is scarce ly more tha n a private virtue, whi ch it is la uda ble for the individual to pursue , but which society can very well do without . Many even view its inte rve nt ion in p ublic life with some disquiet. From what was stated previously we can see just h ow fa r thi s conceptio n is from according with the facts . In reali ty, for men to acknowledge a nd mutua lly guarantee th e rights of one a nothe r, they must first have a mutua l liking, a nd have some reason that ma kes them cling to one another and to the si ng le societ y of which they form a p a rt. Justice is filled with charity, o r to employ once more our expression, negatjye solida rity is on ly the eman atio n o f a n othe r solidarity that is positixe in na ture: it is the repercussion o f social feelings in th e sphere of ' real' rights-~vhichcom'e• • from_a_ ctlfferent source.lhus -there- -is nothing specific about justice but it 'is the -n~sary accompani- me nt to every kind o so li da 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 th at is no less- "well defined, and includes domestic law, co ntractual law, commercia l law , procedural law a nd administrati ve an d constitutional Jaw. T he rela tionships th a; are regulated by these laws are of a n ature en tirely different from the preceding ones; t_hey express a positive contribution , a_ co-operatio n deriving essen tially fro m the division of Jabour.

78 The Function of the Division of Labour

The question s resolved by dome stic law may b e reduced to the following two t ypes: (1) Who is entrusted with the different domestic functi ons? Who is the spouse, who the father, who the legitima te child, who the guardian, etc.? (2) What is the no rmal type of the se funct ions and their re lation- 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 nece ssary formalities for the marri age to b e a valid one, the conditions rega rding legitima te, illegit im a te and a doptive children, the mode of sele cti ng a guard ia n, etc.

On th e other hand , it is the second question that is settled by the section on the respective laws and duties rela ting to husband and wife, on the sta te of the ir relationship in case of divorce, nullity or sep aration (including div ision of property), on the powers of the father, o n the legal consequences of adoption, on administration by a guardian and on his relation ship with his ward, on the role of the family council vis-a-vis guardian and ward, on th e role of parents in the case of suspension of civil rights, and o n the constitution of a board of guardians.

This section of civil law h as therefore as its purpose the deter- m ination of how the various family functions a re a llocated and what should be the relationship of each functi o n to the others. Their significance is that they express the special solidarity that unites the members of a fa mil y as the result o f the domestic division of labour. It is true that we a re scarcely accustomed to conceiving the famil y in this light. It is very often believed that what brings about this cohesio n is exclusive ly a commonality of se ntiments and beliefs. Indeed there are so many m a tters shared in common betwee n the members of the family group th a t the specia l character of the tasks incumbent upon e ach member easily elude s us. This prompted Comte to decl are that domestic union excludes 'any thought of direct a nd co mmo n co-operatio n towa rds an y commo n goal'.7 But the legal organisation of the family whose essen tial tra its we ha\'e just brie fly reca lled , demo n strates the rea lity of these funct ional differences a nd their importance . The histo ry of the family from its o rigi ns shows in fa ct a mere uninterrupted movement towards dissoci a tion , in the course of which t hese vario us function s, at first undivided and overlapping, have gradually sep a rated out and been

Organic Solidarity 79

constituted independently, being distributed amo ng the va ri ous rela tives according to sex, age and depende nt rela tionships, 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 labo ur, on the contrary, dominates the whole of the development of the family .

The relationship of the divi sion of labour to contractu al 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 a bsent from the phenomenon; it is merely gratuitous or unilateral. For insta nce , 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. A s for the other contracts, which comprise th e overwhelming majority, the obliga- tions to which they give rise are correlative, either through reciprocal obligations or through services previously rende red. 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 no t 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 a nother, there is a simple or first-level division of labour. If they arc diffe rent 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 ex pre sses. The only one of different significance is the contract of association , and also pe rh aps the marriage contract, in so far as it determines the share in household expenses to be contributed by husba nd 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 diffe rent 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 co ntract 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 establish ed betwee n more specialised functions. Thus despite the relative simplicity of this scheme, it is enough to demonstrate the extreme complex ity of the facts that it epitomises.

Moreover, this specialisation of functions is directly manifest in the commercial code , which especially regulate s contracts specific to commerce: contracts between agent and principal, between carrier and consigno r, 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 lende r and borrower in a contract duly le gally engrossed, between insurer and insured. Yet here again a great gap exists between the comparati vel y general nature of the legal prescriptions and the diversi ty of special funct ions whose rel ationships are reg ula ted by th ese , as is shown b y the impo rtant position accorded in commercial law to custom.

Where the commercial code does not regul ate contracts proper, it determines what certain specia l function s must be, such as those of

Organic Solidarity 81

the stockbroker, the de al e r , the ship's ca ptain , th e receive r in a case of bankruptcy. so as t o ensure solida rity in all the various pa rts of the commercial system.

Proced ural law, whe the r this be criminal , civil or commercial, plays the same role in the legal system. The sanctions o f legal rules of all kinds can only be applied through a ce rtai n numbe r o f a ncillary functions. such as th ose of magistrates , defence lawye rs, solicitors, jurors, plaintiffs a nd defendants. Procedures de cide the manner in which the functions must be applied and rel ate 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 th e 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 wh a t rational di ffere nce separates the administration of justice from the rest of administration. Wh a tever the rights or wrongs o f thi s vi ewpoin t , administrative law proper regulates ill-defined functi o ns that a re termed administ ra- tive , 11 just as p rocedural law d oes judicial functions. It determines what their normal type is, a nd their rel atio nships eith e r with o ne a nother or with the diffused functi o ns of soc iety. One would o nly need to except a certain number of rules which are generally classified under thi s heading, although they a re penal in character. 12

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

It may well be surprisin g to sec classified under the same heading administrative and p o litical la w with what is usua\Iy termed private law. Yet fir stly. such a connection is needed if the nature of the sanctions is taken as the basis for classificat io n . Nor does it seem possible for us to ado pt any other syste m if we wish to proceed scie ntifically. Moreover, to se parate co mpletely t hese two kinds of Jaw we would have to admit th a t priv ate law really exists, whereas :'t\re believe tha t a ll Jaw is public, because all Jaw is social. All the ~unctions of society arc social. just as a ll the functi o ns of an organism 'a re orga nic. The economic functions, just like the others, a re also of this ch aracter. Moreover, e v en am ong the most diffuse functions there a re none that a re not to some extent subject t o the effects of the machinery of government. Thus from this viewpoint between them the re is no more than a difference in degree.

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

82 Th e Function of the Division of Labour

relationships express. resu lt from the socia l division of labour. Moreover, it is explicable that, in general , co-operative relation- ships do not carry with them any other fo r m of sa nctions . Indeed, special tas ks, 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 ~. th at is, present in every consciousness. and that each individual m ay be able to conceive of it from a s ingle, identical viewpoint. Doubtless, so long as fun ctions a re o f a certain general nature, everyone ca n 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 t hat determine them cannot th erefore possess that superior force and transcendent authority which , when it suffe rs harm, exacts expia- tion . It is indeed also from public opinion th at thei r authority springs, just as do penal rules, but from an opinio n that is specific to certain sectors of society.

Moreover, even in those special circles where t he rules are applied, and where consequently they are evoked in the minds of people, they do no t reflect any very acute feeli ngs , nor even in most cases any kind of emotional state .. For, since they determine the manner in which th e differen t functions should work iogether .. inthe various combinations of circumstances that may arise, the objectsto· which they relate are not ever-pre sent in t he consciousness. We are no t always having to administer a guardianship or a trusteeship, 13

nor having to exercise our rights as creditor or buye r , etc. Above all, we do not have to exercise them in particular conditions. But the states of consciousness are s trong 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 specia l groups. Consequently the infringeme nt cannot provoke more than a very mode rate react ion. All that we require is for the functions to work togethe r in a re gula r 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 de velopme nt of the division of labour cannot ha ve repercuss ions in the penal law. There are, as we alread y know, administrative and governmental functions _where certai n relationships are regulated by repressive law, because of the specia l character mark ing 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 repercussion s occur that are sufficiently general to proYoke a reaction of punishment. But for reaso ns 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, h as the t ask 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 div ision of labour. Therefore we can at the different levels of the animal scale asce rtain the m e asure of that concentration according to the development of the nervous system . Likewise this means th a t we can ascertain the measu re 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 integrati on, and ill!ce , moreove r, 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 t o society without a ny 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 disting uished from each other. (3) From this second difference there arises another which will serve to allow us to characterise and delineate the feature s of these two kinds of solidarity.