Download Emile Durkheim: Law in a Moral Domain Roger Cotterrell

Emile Durkheim: Law in a Moral Domain
Roger Cotterrell,
Edinburgh, Edinburgh University Press,
1999.
Valerie Kerruish
Can we believe in law? The question looks two ways: to hope for a law that
will expand and diversify its realm and become a pluralistic expression of
the moral values of different kinds of community and to fear that it can be no
more than an instrument of bureaucratic regulation and anomic compromise
of particular interests. The interest and value that Roger Cotterrell finds in
Durkheim’s legal theory is largely tied to this question. Construed as a
philosophy of law which, via a sociological approach represents law <xb
having its source and authority in morality, Durkheim’s legal thought is
presented as indicting ways of sustaining and pursuing the hope. The
project ib not ^critical. The limitations of Durkheim’s approach,
particularly his sociological and legal positivism and his disinterest in the
practices of political and legal functionaries are maintained throughout as
themes of the book. Cotterrell is no stranger to several decades of critical
theory which, most recently, has canvassed the causes for doubting law.
Questions of public and private power, of community lost to egoistic
individualism and of increasing moral distance between regulators and
regulated are clear preoccupations. If never quite explicit on the point, I
would also suggest that Cotterrell is of the view that mainstream
jurisprudence does not offer the theoretical resources that would adequately
address these issues. Perhaps, overall, his point is that it is only in and
230
AUSTRALIAN JOURNAL OF LAW AND SOCIETY
(2000-2001) 15
through a legal theory which does have such resources, that it is possible to
believe in law. Thence his interest in Durkheim.
There are more straightforward reasons for the book. Despite Durkheim’s
place as a founder of sociology and the volume of the secondary literature
devoted to him, his sociology of law has not received systematic attention. In
this register Cotterrell’s aim for the book is to reconstruct Durkheim’s legal
theory from scattered sources and across a shift in the early and later
thought. Prior knowledge of Durkheim is not assumed. The book is written
for the unlimited and adds some thirty pages of notes and suggestions for
further reading to the text.
Part One contextualises Durkheim in the concerns and conditions colouring
his sociological thinking and outlines the place of law in that thought. It is an
important one. Law, at least in Durkheim’s early work, takes repressive or
restitutive forms and in this dimension is an index to forms of social
solidarity. Durkheim’s idea of law is expanded in Part Two, ‘Law in
Culture’. Essentially linked to morality and religion, law’s rules are species
of moral rules; its authority is a form of moral authority and, even as a
modem secular phenomenon it must share, with religion, the social;
functions of being a focus of duty and willing allegiance. It is ‘something to
be believed in and involved with’ (50). That such a conception of law cannot
take account of it as a form of power and coercion is a frequently made
criticism of Durkheim that Cotterrell introduces early and returns to
throughout the book. Ultimately, he argues, these are not Durkheim’s
interests, but rather than such issues being wholly neglected, they actually
haunt his legal theory. Force, for Durkheim, will reign where law lacks or
loses its moral authority. It is that to which law is opposed, that to which law
might degenerate, its ‘perpetual enemy’(205).
The distinctively sociological turn of the moralistic theory is to be the
positive science of morality. As the underpinning of a universe of meaning
and social attachment, religion gives rise to a general structure of beliefs and
understandings - a collective consciousness- of which sociology is the new
science. Discipline (through sanction), attachment (through shared beliefs
and order) and autonomy (as a reflexive participation by individuals in the
social and moral order) constitute morality as a form of social solidarity. It
has nothing to do with a utilitarian calculus of private and local interests.
This view presents further difficulties for a sociology of modem western
law. It is part of Cotterrell’s approach however to separate such genuine
shortcomings in Durkheim’s theory from spurious ones. In a chapter on the
historical development of law, Cotterrell defends Durkheim’s evolution
thesis against what he sees as its widespread misinterpretation. This thesis,
231
REVIEWS
prominent in The Division of Labour, ties the evolution of law to ‘the
organizational structure of societies over long historical periods’(83). It is
intended, he argues, less as an analytic for the study of historical legal
change, than as a ‘philosophical device...for conceptualizing fundamental
moral conditions of society’ (91). It is, in other words, the insistence that
individual offence and interest, as sanctioned by modem law must, logically
or conceptually, be thought as supervenient on social solidarity and
collective consciousness. Only thus can law’s authority be a moral authority.
Force cannot create of found law as Durkheim understands it. Cotterrell’s
Durkheim begins to emerge here as a philosopher of society whose work
will also encompass a philosophy of law within which law is a primary
expression of societies moral essence. The development of Durkheim’s work
after The Division of Labour is thus less concerned to analyse forms of
restitutive (modem) law, than to explore changing moral ideas and the
questions to which they give rise. How does an increasingly individualistic
society maintain social cohesion? How, in an increasingly complex and
interactive society, does the regulation which, in controlling burgeoning
desiie actually constitutes human nature, fend off the anomie threatened by
merely pragmatic, egoistic calculation? And if law has its historical source in
religion and is a matter of morality and social solidarity in contradistinction
to being an instrument for the compromise of private interests, then what is
the moral basis of private restitutive law?
Part Three, ‘Legal Values and Social Complexity’, after a chapter directly
addressing Durkheim’s evolving views on the moral foundations of modem
law, consiaers his work on contract, property, inheritance and the family.
Part Four, ‘Law, State and Politics’ turns to the more overtly political topics
of state structure, law making and interpreting and political values and
ideals. The general argument of these parts is for a gradual and not explicitly
acknowledged shift in Durkheim’s views. The functional analysis of The
Division of Labour sets governmental morality at the moral foundation of
modem law. That is to say, as part of its obligation of ‘good management of
social complexity’ (112) the state assigns rights and duties to individuals
through a deliberative process. Absent from this explanation is a foundation
in popular beliefs or collective consciousness. Cotterrell’s argument is that
while Durkheim never discards this result of his early work, his later work
shifts from functional to ideational analysis by taking account of the role of
ideas in legal development. On the one hand, the index thesis and the
distinction between repressive and restitutive law disappears from his later
work. On the other, the view emerges that the value of individualism is
indeed a unifying social value and a force for social cohesion. Thus,
recapitulating earlier discussion, punishment shifts from being an expression
of social condemnation to a communicative process between society and
232
AUSTRALIAN JOURNAL OF LAW AND SOCIETY
(2000-2001) 15
offender. The moral autonomy of individuals gains a place alongside ideas
of duty and attachment. From being a mere residue of collective
consciousness, individualism as a value is reinscribed as ‘the cult of the
individual’. It has become, in Durkheim’s words ‘the only system of beliefs
which can ensure the moral unity of the country’ (112).
What we are looking at here, consistently with law’s origins in and
continuing functional similarity to religion, is am allegedly sociologically (as
distinct from ideologically) grounded elaboration of the sanctity of
individual personality. Individualism, in this understanding, far from being
identified with egoism, becomes socially sourced other-regardingness: a
moral duty to respect the human worth and dignity of others. What clearly
attracts Cotterrell to this thinking is not only its attractive alternative to neo­
liberal atomism and egoism. It is that the ambivalent play of governmental
and popular morality within Durkheim’s thought ‘reflects enduring tensions
at the heart of modem law’ (118).
The chapters on contract and property put flesh on these bones. Durkheim’s
positivistic disregard of legal meanings and categories and his insistence on
the irrelevance of utilitarian calculation are limiting, but his ideas open a
number of alternative research avenues for legal theory: the shift from will to
socially constituted personality and status as the basis of contract; the
potential for individual empowerment through contract and its analysis,
linked to the work of Marcel Maus on gift exchange, in terms of a morality
of reciprocity and ‘just contracts’; the social determination of the meaning
and sanctity of private property and some intriguing ideas on evolutionary
links between private property and religious taboo. The counter point to all
this optimism is the ever present fear that individualism tends to ‘fly free’ of
the limitations to which organic solidarity would subject it (147).
A similar trade-off of limited but evocative interests is also evident in Part
Four of the book. Durkheim has no interest in either political practices, as
struggles over power in the public domain, or in observation of the
behaviour and practices of law making, interpreting and administering
agencies. His interest is in political and legal process as communicative
processes of and1 for social regulation. Cotterrell has very effectively
developed the notion of moral distance in his own work on trusts.1 That
work shows, I would now think, a beneficent Durkheimian influence.
Durkheim’s ideal is of a ‘two way process’ within which legislators become
informed of social conditions relevant to proposed regulations a citizens,
1
Roger Cotterrell, ‘Trusting in Law: Legal and Moral Concepts of Trust’ (1993) 46 Current
Legal Problems 75-95
233
REVIEWS
bound by the rule of law, critically and reflexively appropriate such
regulations as their own. The trouble is Durkheim’s paternalism. Experts and
professionals mediate this process, but their performances go unexamined.
This evokes Cotterrell’s sharpest criticism. Disinterest in the actual practices
of ‘the growing army of lawyers and officials’(174) at the helm of the
modem state, is hardly satisfactory. Again there are aspects of Durkheim’s
thought about legal organizations which are important and interesting. One
example is the functions of rituals and symbols. Another is a critical
potential in Durkheimian legal theory found in the neglected work of
Emmanuel Levy; work which, in the early decades of the twentieth century,
prefigures themes in the Critical Legal Theory of its close. Most
significantly, Durkheim broaches the need for intermediate agencies,
standing between state and public, closer than government to specific
regulatory fields and well versed in their conditions and needs. This, for
Cotterrell is not a readily categorisable attempt ‘finely to balance rights and
duties between groups and individuals and to divide regulatory authority
carefully between the centralized state and more functionally specific
groupings’ (180). It points in a direction which Cotterell wants to take
further. But outside the field of labour regulation, there remains, in
Cotterrell’s judgement, a deficit of sensitivity to problems of output. We are
left then, with an overall impression of Durkheim’s politics of law as an
elitist and paternalistic approach to engineering a form of social democracy,
shot through with anxiety as to whether the cult of the individual can contain
the atomistic and anomic tendencies of modem industrial society.
The ‘old gods are growing old or already dead’ and nothing has yet replaced
them (195).
Cotterrell’s ‘Overview’, forming the final part of the book, is a critical
accounting which aims at ways in which Durkheim’s thought might be taken
beyond this rather unpromising impasse. The argument, broadly is for the
value of a sociological approach to law as moral phenomenon. But law as
ratio, as shared understandings, should not occlude the view of law as
voluntas, as coercive regulation. For the latter dimension of modem law, (as
also for his positivistic rather than interpretive approach), Durkheim needs a
Weberian supplement. Additionally, Cotterrell sketches a typology of
communities as a basis for developing pluralistic structures of regulation.
Durkheim’s ideas point in this direction, he argues, and that is their
endearing value. They need to be turned toward a social and legal
philosophy that maintains belief in law as an institutional affirmation of a
socially cohesive value of respect for individuals with its roots in a plurality
of types of community.
234
AUSTRALIAN JOURNAL OF LAW AND SOCIETY
(2noo^ooi) 15
But can we believe in law? Perhaps not. Perhaps, before any such belief is
possible, a clearer view and firmer grasp on why and how and who law fails
is needed. The idea that law can present and justify itself in no other way
than as a morally valuable component of particular cultures is not my source
of unease here. I am more skeptical of Cotterrell’s ideas about the nature and
role of theory in relation to the question posed. While noting that there is no
sharp boundary between philosophical and sociological approaches to
morality, Cotterrell claims, for sociology, the emphasis on the social and
historical embeddedness of moral systems as against the timeless placeless
principles of philosophical justification. This gives natural law theory too
prominent a place in philosophy of law which acknowledges both law’s and
morality’s origins in religion. But there is a more fundamental issue
concerning pluralism here. In Cotterrell’s view, all theories present partial
views. The student of society can learn from many, if not all of them, piecing
together her own, always incomplete jigsaw picture of the whole (204).
What is left out of account here is the struggle for (or against)
conceptualisation through which philosophy attempts justification or critique
of just such persuasions. Without this endeavour of thought, the virtue of
pluralism moves into place as a self-evident truth, undercutting the critical
intent for the legal theory which Cotterrell himself holds. Such an intent
must, in my view, be open to the possibility that law fails the test of moral
value. Current approaches in jurisprudence and the philosophy of law do not
appear to quite grasp just how hard the causes for such skepticism press.
Pluralism, both theoretical and legal, links these causes to the neglect of
diversity. But what propels this neglect? And how, after the limitations of
focus and selection and the existence of a plurality of normative systems are
recognized, is the question of their ordering and valuation to be addressed? If
pluralism involves not only diversity but incommensurability of value
systems, how does thinking law more broadly and inclusively than state law,
address the question of conflict between different laws? It is all very well to
recognize normative systems as law, but I am not persuaded that issues of
valuation escape hierarchical orders of enforcement. These are questions of
power and Cotterrell acknowledges them as such and as pressing. But he
avoids refining and tightening issues of ratio and voluntas in a deeply
stratified society even as he admits the limited sense of social differentiation
in modem society in Durkheim’s work (220).
I am not persuaded that sociological analysis of types of community can
meet this problem, but to be unpersuaded is not to be unimpressed. This is a
valuable introduction to Durkheim on law and a thoughtful contribution to
legal pluralism. It is somewhat repetitive; could perhaps have been shorter.
But a more condensed presentation might well have conveyed much less of
the paradoxical character of individualism as a social value. It might also
235
REVIEWS
have lost the double dimension of reconstruction that makes the book both a
presentation of Durkheim’s legal theory and a contribution to current legal
thought.
236