Emile Durkheim is one of the most famous scientists in the history of sociology. His research, however, touches upon multiple fields of study. In particular, his theory of division of labor and legal evolution attempts to explain the correlation between the evolution of the society and its legal system. The current paper investigates Durkheim’s theory of legal evolution and attempts to find out how it agrees with the facts uncovered by a study of two communal settlements in Israel in the 1950s. The consistencies and inconsistencies between Durkheim’s theory and the facts are discussed, as well as certain aspects of these facts to which the theory is irrelevant; also, some nuances which cannot be explained by Durkheim’s theory are pointed out.
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Durkheim’s Theory of Legal Evolution, and the Consistencies and Inconsistencies Between That Theory and Findings of the Study of the Communities
According to Durkheim’s theory of legal evolution, the development of the society from simpler forms (in which the division of labor is not high, so, in fact, most people participate in all the activities that exist in the community to a certain degree), to more complex forms (in which the division of labor is high and the labor is highly specialized, so that every member of the society, in fact, perform their own specified role), is followed by the development of legal means of regulating relationships and conflicts within that society (Sutton 35-37). In accordance with that theory, this occurs due to the fact that in the simpler forms of society, the collective conscience is rather strong, the sense of the individual identity is quite weak, and so there exists a high degree of the agreement pertaining to the rules (explicit or implicit) that should be followed in that society; on the other hand, is a specialized society, each individual has their own area in which they specialize and act, so they may understand little about the life of others, and no such agreement exists between persons, which is why an outside formal force such as law is needed in order to help people solve disputes and restore the bonds or contracts that have been broken due to some adverse action of one of the participants of these bonds or contracts (Sutton 36-38).
Therefore, the consistencies between Durkheim’s theory and the findings of the study pertaining to the kibbutz and moshav communities can easily be seen. In the kibbutz there was no division between the labor, and, in fact, all the members of the community participated in all the types of work that existed in the kibbutz. This meant that the members of the kibbutz very often shared their views pertaining to what was appropriate and inappropriate in that society, and there was a high degree of agreement between them; there was no need in a formal legal system that would resolve disputes, for deviants could easily be “punished” and/or “corrected” simply by changing the mutual attitude of the community to these individuals. As for the moshav, the consistency between the situation existing in it and Durkheim’s theory is that this community was slightly more complex, and this complexity resulted in the need to create a formal legal system to resolve disputes and punish deviants.
However, inconsistencies are also easy to notice. In particular, it is apparent that the complexity of the moshav in comparison to kibbutz was a result not of higher specialization of labor, but rather of the right to have private property; and the moshav needed the law, not because of the division of labor, but because the members of that community probably cared about their private interests rather than about the collective interests, so there was a considerably lower degree of agreement between the members of the moshav. Therefore, it might be possible to state that in the moshav, law emerged (or “evolved”) not because of the level of division of labor that existed in that community, but due to the need to solve the conflicts of interests between multiple parties, which was not the case in the kibbutz. It is, therefore, noteworthy that the issue of division of labor and its relationship to legal evolution in Durkheim’s theory is not relevant to the study of the Jewish communities.
Durkheim’s Theory About the Relationship Between Social Solidarity and Penalties for Rule Violation, and the Consistencies and Inconsistencies Between That Theory and Findings of the Study of the Communities
When it comes to the relationship between social solidarity and the penalties that are imposed on the members of the society that violated some rules of that society, Durkheim’s theory offers the following explanation. As was noted above, the simpler societies have a lower degree of division of labor, so individuals, to a large extent, share their views pertaining to what actions and practices should and should not take place in their community (Durkheim 21-24). Therefore, there exists a high degree of social solidarity, one that is labeled “mechanical” by Durkheim, meaning that the individuals are tightly bound not because they depend on one another, but because they simply carry out the same roles in the society (Sutton 37-38). As a result of the high levels of the agreement pertaining to the rules that should be followed in the community, the penalties for breaking these rules are primarily repressive. In other words, the legal systems in the communities bound by the mechanical type of solidarity are aimed at punishing the perpetrator, because crime is viewed as an assault on the values which all the members of that community share (Sutton 38), and the members of such communities, in the normal state, should not be able to break the norms related to these values (Malinowski 50).
On the other hand, the members of the communities in which a high degree of division of labor exists depend on one another to perform a variety of functions that are necessary for the existence of that community in its current form. This leads to the “organic” form of solidarity, that is, one where solidarity exists because individuals perform varying roles so as to allow the “organism” of that society to function (Sutton 37). Therefore, there exists respect for varying roles in that society, because its members understand the need for the differences between the individuals. As a result, the law in such a society should be, according to Durkheim’s theory, restitutive; in other words, it should permit for protecting individual freedoms of people, and also for repairing the relationships or contracts which were broken due to some perpetration (Sutton 38).
Therefore, Durkheim’s theory is inconsistent with the research which studied the kibbutz and the moshav in several respects. First of all, both societies probably had the “mechanical” type of solidarity, so in both of them, its members should have a considerable degree of agreement about which actions are right and which ones are not. However, in the kibbutz, there existed such an agreement (this conclusion can be made from the fact that the “informal,” collective type of punishment was used, apparently on a regular basis), whereas, in the moshav, there was no or little agreement about which actions should or should not be carried out by the members of that community and how they should be penalized, so a need in a formal legal system existed.
Another inconsistency is that, according to Durkheim’s theory, both societies as ones involving little division of labor and the mechanical type of solidarity, should have had the repressive type of law, that is, one that is aimed at punishing perpetrators. However, the study found out that the kibbutz did not use the repressive type of law, and the “penalties” were not aimed at punishing the deviant; rather, they were (rather delicate) signs that the deviant behaves improperly and should change their attitude, and was aimed at restoring the normal functionality of the community. On the other hand, contrary to the Durkheim’s theory, the moshav, which was a more “developed” (from the contemporary Western point of view) community because there existed private property, utilized a more repressive type of sanctions than the kibbutz.
Finally, it might be possible to state that in both communities, the types of “legal systems” that emerged depended primarily on the fact of absence/presence of private property rather than on the division of labor, which contradicts Durkheim’s theory. It seems that formal law was not needed in the kibbutz; informal methods (Gibbs 2) were sufficient because members had mutual interests due to the communal type of property, whereas the moshav required formal law because its members had private property, and apparently had conflicting interests which were based on that property. So the theory is also partially irrelevant in this case because it does not elaborate in detail the relationship between the law and private property.
The Features of Durkheim’s Ideas About Law, Social Solidarity, and Legal Evolution That Cannot Be Assessed Using the Evidence from the Communities
Durkheim’s theory has several ideas that cannot be assessed on the basis of the study pertaining to the kibbutz and the moshav communities. In particular, because these communities are supposed to have the mechanical type of solidarity and not the organic one (Sutton 37-39), it is impossible to assess the claims that the communities with the organic type of solidarity require the existence of the formal law, and that such law should primarily be restitutive. It is also impossible to verify whether some type of legal evolution would take place in both of these communities if they developed a higher degree of division of labor and would transform into communities with organic solidarity. In addition, it should be particularly interesting to find out whether a need informal law in the kibbutz would emerge if that community evolved into one featuring a considerable amount of division of labor, but still preserved its structure in terms of communal living and the absence of private property; this question is also not answered by Durkheim’s theory, and probably cannot be answered in Durkheim’s framework at all, because the facts in the kibbutz community contradict Durkheim’s theory quite often.
Therefore, Durkheim’s theory of legal evolution and the division of labor has numerous inconsistencies with the Israeli communities in question. In particular, it apparently attributes the development of legislation to factors which are different from those that affected the legal situation in the communities. Therefore, Durkheim’s theory that explains changes in the legislation in a society should be used with caution.
Durkheim, Emile. The Division of Labor in Society. Translated by Name Surname, Publisher, year of publishing.
Gibbs, James L. Jr. “The Kpelle Moot: A Therapeutic Model for the Informal Settlement of Disputes.” Africa, vol. 33, 1963, pp. 1-10.
Malinowski, Bronislaw. Crime and Custom in Savage Society. Routledge and Kegal Paul, 1926.
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Sutton, John R. Law/Society: Origins, Interactions, and Change. Sage Publications, 2001.