Social solidarity and the enforcement of morality revisited: some thoughts on H.L.A. Hart's critique of Durkheim.

• Author: Thomas, W. John
• Position: Emile Durkheim

INTRODUCTION

With his 1967 essay Social Solidarity and the Enforcement of Morality,(1) H.L.A. Hart launched the last volley in his debate with Lord Devlin regarding the relationship between law and morality.(2) In so doing, Hart broadened his view beyond Devlin's jurisprudential works to consider the literature of sociology. In particular, Hart focused on the writings of Emile Durkheim because he found them "relatively clear and briefly expressed, and ... specifically connected with the topic of the enforcement of morality by the criminal law."(3)

Hart began his inquiry into Durkheim's work by describing what he saw as three conflicting theses regarding the relationship between law and the enforcement of morality. The "classical thesis," which Hart extracted from the writings of Plato and Aristotle, holds that law should be enforced to promote moral virtue.(4)

The "disintegration thesis" that Durkheim advanced "inverts the order of instrumentality between society on the one hand and morality on the other as it appears in the classical thesis; for in this thesis society is not the instrument of the moral life; rather morality is valued as the cement of society, the bond, or one of the bonds, without which men would not cohere in society."(5) Criminal law is valued to the extent that, through punishment, it enforces morality, maintains social cohesion and, concomitantly, prevents social "disintegration."(6)

The "conservative" thesis, into which Hart claimed the disintegration thesis collapses "under pressure of the request for empirical" substantiation, claims only that "[a] society has a right to enforce its morality by law because the majority have the right to follow their own moral convictions that their moral environment is a thing of value to be defended from change."(7)

Using the classical and conservative theses for comparative purposes only, Hart centered his commentary on the disintegration thesis and raised at least three concerns. First, Hart offered a general challenge to the claim of the thesis that societies punish only to ensure social solidarity.(8) Second, Hart called for empirical proof of the thesis, but added that he thought that none could be found.(9) Third, Hart challenged Durkheim's claim that all attempts by a society to define criminal conduct are socially beneficial.(10)

This essay offers modest commentary on each of Hart's concerns and, in so doing, distinguishes itself in two ways from the literature that addresses the Hart-Devlin debate.(11) It concentrates on Durkheim's writings and offers empirical proof in support of both Durkheim and Hart.

Part I presents the disintegration thesis as Durkheim formulated it and articulates the criticism offered by Hart and others. It also confirms Hart's conclusion that the thesis does not offer a universal explanation of the relationship between law and morality, but argues that it does provide the best, if not the only, explanation of some social conduct. Part II offers an example of empirical proof that supports the disintegration thesis. Part III offers an example of empirical proof that supports Hart's claim that all attempts by a society to define criminal conduct are not socially beneficial. The essay concludes that though Hart voiced valid criticisms of the thesis, nonetheless, societies sometimes enforce laws in an effort to produce social solidarity.

1. THREE COEXTENSIVE THESES

   A. Durkheim's Formulation of the Disintegration Thesis

   Durkheim presented what is perhaps the simplest and most elegant formulation of a disintegration thesis in his first major work, The Division of Labour in Society.(12) Durkheim derived the thesis from two related phenomena: "social solidarity" and the "collective conscience."

   "Social solidarity" is the set of bonds that exists among members of a society. These bonds are the product of similarities among members of the society--"mechanical" solidarity(13)--and their differences--"organic" solidarity.(14) Similarities are reflected in shared beliefs and standards, while differences are reflected in the division of labor.(15) The organization of the work force may also produce a limited set of shared values.(16)

   "Collective conscience" refers to the internalization by members of society of the common beliefs and standards that comprise organic solidarity.(17) The collective conscience is the glue that maintains social solidarity.(18) Law, "the most stable and precise element" of social organization, furnishes visible evidence of the collective conscience and, indeed, reflects "all the essential varieties" of solidarity.(19)

   Against this backdrop, Durkheim advanced his boldest and perhaps most controversial hypothesis regarding the law.(20) Crime "consists of an action which offends certain collective feelings which are especially strong and clear-cut."(21) Punishment "constitutes essentially a reaction of passionate feeling, graduated in intensity, which society exerts through the mediation of an organised body over those of its members who have violated certain rules of conduct."(22) The same passion is the source of both the rules of conduct and the reaction to their breach: "In other words, we should not say that an act offends the common consciousness because it is criminal, but that it is criminal because it offends that consciousness. We do not condemn it because it is a crime, but it is a crime because we condemn it."(23)

   Passionate condemnation maintains the collective conscience and thus maintains society itself. The "real function" of labeling conduct as criminal "is to maintain inviolate the cohesion of society by sustaining the common consciousness in all its vigour."(24) Without the exercise of the collective conscience through crime and punishment, "there would result a relaxation in the bonds of social solidarity."(25) Once relaxed, social solidarity, and thus social structure, would disintegrate. Thus punishing crime is "an integrative element in any healthy society" without which the society cannot exist.(26)

   Given these principles, and, presumably, a societal survival instinct, crime can never disappear. Societies will, as necessary, continually redefine what constitutes criminal conduct in order to ensure an outlet for the exercise of collective sentiments. Durkheim explained: "[C]rime is necessary. It is linked to the basic conditions of social life, but on this very account is useful, for the conditions to which it is bound are themselves indispensable to the normal evolution of morality and law."(27)

   Regardless of how dramatically social mores change, a society, if it is to survive, must identify some conduct as criminal and punish it. Punishment exists not to address the transgressions of the "criminal," but to strengthen the collective sentiments of the "honest."(28)

   B. The Criticism

   Perhaps as a function of their provocative nature, Durkheim's writings have not suffered for lack of criticism. And while the body of criticism threatens to dwarf Durkheim's own work,(29) it does fall into two distinct categories.

   Writers in the first category focus on the simplicity of Durkheim's writing. Durkheim apparently viewed laws as the direct manifestations of collective sentiments, unchanged by the participation of intermediaries in their creation. He saw no need, for example, to include the role of legislators in his thesis:

   Although the feelings of the collectivity are no longer expressed save

   through certain intermediaries, it does not follow that these feelings are

   no longer of a collective nature just because they are restricted to the

   consciousnesses of a limited number of people. Their delegation to these

   people may be due either to an ever-increasing growth in cases necessitating

   the appointment of special officials, or to the extreme importance

   assumed by certain personages or classes in society, which authorises

   them to be the interpreters of its collective sentiments.(30)

   Similarly, Durkheim argues that the roles of courts, prosecutors, and juries in the enforcement of laws do not alter the thesis because the collective sentiments are "immanent in everyone's consciousness."(31) Even those who do not subscribe to modern "public choice" theory(32) would probably find this view naive. And one can only imagine Durkheim's defense of his thesis in the face of the successful attempts of modern-day lobbyists to spur the codification of laws representing the interests of specific groups, which are sometimes antagonistic to the interests and views of large segments of society.

   Writers in the second category, including Hart, focus on Durkheim's failure to consider certain questions regarding the relationship between law and morality. Durkheim viewed moral and legal codes as coextensive and, by definition, socially beneficial. Both of these assumptions may be false. First, moral rules and legal rules may conflict.(33) Would Durkheim really contend, for example, that both the existence and the enforcement of the laws of segregation served an altogether moral function?

   Second, and perhaps more importantly, even where a society's laws conform to its moral code, the moral code itself may not be entirely beneficial. As Hart suggests, "It is surely both possible and good sense to discriminate between those parts of a society's moral code (assuming it has a single moral code) which are essential for the existence of a society and those which are not."(34) Again, the laws of segregation vividly illustrate the point. Even assuming that those laws reflected the moral sentiments of the U.S. population at the time, would Durkheim still contend that their enforcement maintained social solidarity?

   Hart's parenthetical comment hints at another important criticism. As some critics have argued explicitly, Durkheim never understood that "it may not be possible to specify major social norms about which there is general agreement."(35) For example, the American Civil War, although certainly also rooted...