Durkheim's «Two Laws of Penal Evolution»
Author(s): Edward A. Tiryakian
Source: Journal for the Scientific Study of Religion, Vol. 3, No. 2 (Spring, 1964), pp. 261-266
Published by: Wiley on behalf of Society for the Scientific Study of Religion
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DURKHEIM'S((TWO LAWS OF PENAL EVOLUTION))
EDWARD A. TIRYAKIAN
Emile Durkheim the study of
criminal behavior was an integral part
of the study of normative or moral behavior. In the university course he gave
several times in his career, entitled "Physiologie du Droit et des Mceurs," the
study of moral infraction and criminality
was an essential complement to his analyses of moral sanctions and obligations.
If social organization depends on the
normative structure of moral and juridical rules, one must also consider the
conditions under which these are violated.
Criminality, he insisted,1 is negative
morality and should be studied conjointly with positive morality, that is,
with actions which fulfill the prescription
of moral and legal codes; to violate a
moral or legal precept is a way of practicing it. Crime, then, is to be understood as a sociological phenomenon.
For the sake of brevity we shall just
indicate that the sociology of crime occupies a significant place in writings of
Durkheim other than the one which will
be reviewed here. In the Annee Sociologique, which he founded and edited,
a section was set aside to review works
pertaining to "Criminal Sociology and
Moral Statistics." In The Division of
Labor and The Rules of the Sociological
Method considerable attention is also
given to the analysis of criminal behavior and penal rules. In these two works
Durkheim advanced some important
theoretical conceptions on this topic:
(a) an action is criminal not in and of
itself but because it is socially defined
as offensive to the moral sentiments of
FOR
1 Introduction to the fourth section, L'Annge Sociologique, v. IV (1899-1900), p. 434.
the group; (b) crime is a "normal" phenomenon because it inheres in the conditions of collective existence; and (c)
the existence of crime in society also has
a certain social utility. If Durkheim
argued that crime is a "normal" social
phenomenon (because of its universality
and because the total obliteration of
crime would call for an absolute moral
conformity), he did not intend by this
to provide a sociological absolution for
this type of negative moral behavior.
Thus, he explicitly stated that as a correlative of criminal behavior, punishment or retribution is equally a normal
social phenomenon.2 And Durkheim
studied in depth both the structural aspects of punishment and the historical
variations in the forms and nature of
retribution.
Although the penal sanctions invoked
on the criminal are often held to have
the functions of rehabilitation and deterrence, Durkheim argued that the latent function even today is that of retribution. The rates of recidivism and the
increase in crime rates in modern society
suggest that deterrence or rehabilitation
are not carried out with much success.
The true function of punishment is to
make the criminal atone for his conduct.
The real offense of the criminal act, from
a sociological perspective, is not the offense to the individual victim but to
the collective system of sentiments, the
morality of the group, which gives the
action its reprehensible character. If
punishment has as its major impetus
an emotional reaction of vengeance, it
is because crime is essentially a desecra2
Le Suicide, Paris: F. Alcan, 1930, p. 415.
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262
DURKHEIM'S
tion, an act of impiety against the collectivity itself, and the latter has an implicit religious or sacred aspect for its
members. Criminal punishment, even in
its earliest historical forms, is not a
private but a public matter which society administers through a specialized
agency. Criminal law, therefore, has a
public character unlike civil law; criminal
justice functions for the benefit of the
honest man by reaffirming his belief in
and therefore his solidarity with the
system of collective sentiments of his
group. Penal sanctions are an effective
way of informing us as to what social
conduct is "bad".
The above thoughts of Durkheim on
crime and punishment have been fairly
well diffused, though they retain their
originality and vigor when compared to
current alternative theoretical approaches
to criminal behavior. Yet, in The Division of Labor and The Rules of the Sociological Method (and in Suicide) the
central focus is not the interpretation
of crime and punishment; these are ancillary to other themes Durkheim develops in these well-known works. It
is in a later writing which he published
in L'Annre Sociologique that we find
the summation of his sociological notions concerning criminology and penology. Although this is a major theoretical contribution to the field, its
unavailability in translation has led to
its being long neglected by American
criminologists. If "The Two Laws of
Penal Evolution"3 is a very suitable object of bibliographical review for purpose of this focus on Durkheim it is not
only because of its contribution to the
theory of deviant behavior, but also
because its materials link meaningfully
with Durkheim's writings on religious,
political and other interrelated social
phenomena.
3
tion
The first endeavor of Durkheim in
this article is to establish some general
propositions concerning historical changes
in penology. He formulates a general
proposition called the Law of Quantitative Variations:
The intensity of punishment is greater
to the extent that societies belong to a less
advanced (dlevd) type-and the central
power has a more absolute character.4
Durkheim spends some time in explicating the significant terms and variables
of this law, which refers to changes in
the magnitude and quantity of penal
punishments. Although explicitly rejecting the notion of linear social evolution, he does accept a notion of societal
development metaphorically represented by a branching tree, consisting of a
series of social types hierarchically developed in social organization, at varying distances from a common origin
(the trunk in this metaphor). As to
the second independent variable, the
absolute nature of government, absolute
power is taken to mean a unilateral
relationship between the State and the
individual, with the latter treated purely
as a possession of the former, much the
same way as the unilateral relationship
between an individual and his property.
In this context, Durkheim observes
that absolute power of the government
is an ideal type since, in reality, there
are always some curbs, be those of tradition, religious beliefs, or secondary social
bodies, which in fact if not legally, place
some restraints on the central power of
society. He observes that societies can
be very advanced in the evolution of
their social organization without having
an absolute government, and they can
be very simple with an absolute government-an absolute government as a form
of political power is not solidary with
any particular social type. Moreover, a
polity does not have an absolute characEmile Durkheim, "Deux Lois de l'i2volu- ter merely because of the number of
Pdnale,"
L'Annee
(1899-1900), pp. 65-95.
Sociologique,
v.
IV
4 Ibid., p. 65.
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"TWO LAWS OF PENAL EVOLUTION"
functions exercised by the central government. The crucial factor is whether or
not the power to exercise these functions
is concentrated in a single, few, or many
hands; if power is diffusely held by a
central government through various agencies, it is erroneous to think of it as an
absolute power.
The first law of penal evolution is also
termed the law of amelioration (loi d'adoucissement) and may be rephrased thus:
as societies evolve from a primitive to
an advanced type, the penalties for
crimes are reduced in their intensity.
In ancient Egypt penology was carried
out by expressive mutilations: counterfeiters and forgerers were deprived of
their hands, the spy had his tongue cut
off, the rapist was emasculated. Although ancient Israel does not represent
a social type more advanced than Egypt,
according to Durkheim, yet corporal
and capital punishment was less intense
and applied to fewer offenses; this is accounted for by the fact that the Hebrews
were essentially a democratic people who
never developed an absolute form of
government, in contradistinction to the
Egyptian theocracy centering on the
divinity of the monarch. Punishment
in the Roman Republic was less severe
and capital crimes were much less numerous than in the preceding Athenian
city-state; under the empire, however,
the central government tended to become absolute with the emperors and
this was reflected in the increasing harshness of penal law. The succeeding feudal
society in Europe shows an amelioration
in its penal law in comparison to previous
societies at a comparable stage in their
development. If we note a reversal in
this trend from the late Middle Ages
down through the 17th Century, it is
because this period coincides with the
rise of the monarchy which assumed an
absolute character most manifest in the
17th Century. The crimes of lese-majestd, unknown in the early feudal period
become numerous, religious crimes in-
263
crease, and capital and corporal punishments wax in numbers and intensity.
With the waning of the power of the
monarchy in the 18th Century, the Law
of Quantitative Variations is reflected
in the great ameliorations in the penal
law of contemporary society, the decrease in the number of offenses subject
to capital punishment, the abolition of
various forms of corporal punishment.
On the whole, then, the course of penology is toward progressive amelioration,
and where significant exceptions take
place in this trend they are to be accounted for by changes in the allocation
of power in the central government.5
Complementing the Law of Quantitative Variations is a second general proposition, the Law of Qualitative Variations:
Privative penalties of liberty, and
only of liberty, for varying periods according to the gravity crimes, tend
more and more to become the normal
type of repression.6
In other words, Durkheim here suggests that imprisonment and only imprisonment tends historically to become
the normal (i.e., modal) type of punishment for crimes. Prisons are unknown
in primitive societies, and in the few
early societies where they appear their
function is that of detention only. It
is only in the Athenian society where
imprisonment begins to take on a punitive character, and even so it remains
limited to a few cases. Not until the
emergence of Christendom does imprisonment really develop, largely under
5 An interesting test of Durkheim's law
would be to see whether in Germany under
Hitler, Russia under Stalin, and Italy under
Mussolini there was not a substantial increase
in the harshness and extent of penal laws,
since the respective governmnentof those countries under these dictators took on an absolute
character, as Durkheim defined it, over the
anterior regimes.
6
Ibid., p. 78.
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264
DURKHEIM'S
the influence of the Church and its
monasteries, where not only monks but
also criminals become segregated from
society in cellular existence-for the latter group this being an involuntary form
of penance. Although the influence of
canon law upon society waned, this did
not impede the development of the extension of imprisonment, and in 1791 it
became the basis of the repressive penal
system in France, and later adopted
elsewhere. Having changed in character from being simply preventive to
becoming repressive, imprisonment has
today become the very form of criminal
punishment.
If imprisonment played a nugatory
role in the penology of early or primitive
societies, it is because in those societies
criminal responsibility is organized on a
collective basis; there is no need to imprison the evil-doer because the whole
clan to which he belongs is responsible
for his good conduct. However, as the
clan system breaks up, responsibility becomes personal and imprisonment appears.
Durkheim goes beyond a mere statement and explication of these two basic laws. In seeking the cause of penal
evolution one must look at the evolution of crime, for "punishment results
from crime and expresses the way it affects the public conscience." He divides
crime into two broad types, crimes
against collective things (material as
well as spiritual)-public authority, customs and tradition, religion-and crimes
against individuals, such as murders,
thefts, frauds. The first may be called
"religious criminality" since its object is
something considered sacred, while the
latter type he refers to as "human criminality." These two types predominate
in contrasting types of societies: religious
criminality (e.g., failing in religious obligations, breaking ritual interdictions) fills
up almost exclusively the content of
criminal law in primitive societies, whereas "human criminality" (whose victim is
not seen as a religious or sacred entity)
becomes the chief aspect of criminal law
in advanced societies.
In primitive societies collective sentiments affronted by criminality have the
collectivity as their subject and collective
things as their object; in other words,
it is society which is directly hit by criminal behavior, not the individual. Durkheim goes on to state that since society
is of greater moral worth than the individual, to violate its prescriptions produces
a different sentiment than when the
object of criminal behavior is the individual; to violate the norms of society
in primitive societies is akin to religious
desecration. Therefore, in such societies
penalties for criminal behavior are much
harsher. If criminal attempts against
individuals bring less of an indignation
than attempts against the transcendental (and the collectivity as such through
its symbolic expression in religion appears
transcendental to its followers), correspondingly, in appeasing the divine the
suffering of the criminal counts for
nought. Of course, even primitive societies recognize crimes against individuals, but as long as in a general manner
crime is fundamentally viewed as an offense against the divine, crimes committed by men against men will also
be viewed within this framework.
How does this starting point lead to
the historical amelioration in penal sanctions against crime? First of all, Durkheim suggests, there is a fundamental
contradiction involved in criminal punishment: revenging the human dignity
which is wounded in the person of the
victim leads to a new offense against
human dignity, this time in the person
of the guilty party. This basic dilemma
inherent in criminal justice constitutes
an antinomy which cannot be eradicated,
but it may be softened by mitigating
7 Ibid., p. 90. Durkheim stated this in somewhat different terms in another writing: the
punishment for a crime does not have a oneto-one correspondence with incrimination or
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"TWO LAWS OF PENAL EVOLUTION"
punishment as much as possible.7 The
weakening in the modal form of punishment does not arise from the weakening of mores or legal norms, but from
the diminishing of the influence of religiosity in the penal code and in the collective sentiments which form the basis
of the criminal law. Since for Durkheim
the secularization of various aspects of
collective life (e.g., the family, traditions and other collective beliefs, etc.)
is one of the fundamental features of
social evolution, offenses against collectivities, which once had a transcendent
or mystical character but are no longer
considered to be in the realm of the
sacred, will not seem as serious, and correspondingly punishment for these offenses becomes reduced. Today crimes
against collectivities are tending to be
viewed in the same light as crimes
against individuals because, to reiterate
Durkheim's point, the moral substratum
which underliesthe penal code has changed.
In the course of human history, the
"collective conscience" of society has
extended its scope of action but at the
same time it has lost its authoritarian
rigor upon the individual in the social
constraint it exercises upon behavior.
Since it has lost its divine character and
has become more human, it has to allow
a greater place for the spontaneities of
individual behavior, and therefore tends
to be less violently imposed on the
members of society. The intensity of
penal sanctions, Durkheim argues, has
the function of making individuals feel
the weight of social constraint; consequently, if the hold of social constraint
has become weakened, then it is natural
that the intensity of punishments has
also weakened. This is Durkheim's real
explanation of the Law of Quantitative
moral reprobation for that action; very often,
the collective sentiment which is offended by
a criminal action is equally offended by the
penalty imposed.
"Crime et SantW Sociale,"
Revue Philosophique, 39 (1895), p. 519.
265
Variations and it can be equally related
to the Law of Qualitative Variations: as
the "collective conscience" which underlies morality, including criminal justice,
becomes less authoritarian, less irrational
and less rigid, then it follows that penal
sanctions invoked against infractions
tend to be more rationally conceived.
Imprisonment as the predominant punishment in recent history has the characteristic that it can be applied to all forms
of offense, though to a varying degree
depending upon the nature of the offense,
and this within a rational legal framework.
Durkheim ends "The Two Laws of
Penal Evolution" by observing that if
the intensity of punishment tends to
weaken historically, this should not be
construed to mean that the entire repressive system of society has weakened.
Society will always recognize some actions to be criminal, albeit the particular forms of crime will change as society
changes, and consequently some forms of
penal sanctions will also be invoked upon
the criminal. Although a later form of
punishment may be less harsh than a
previous one, it will have its own severity
and be so considered for the society in
which it occurs. Crime and punishment
together will never be absent from an
actual society.
In concluding the review of this work,
it may be asserted that a major contribution of Durkheim is his emphasis
upon the dynamic aspects of crime and
punishment in relation to social structure; we have noted the stress he placed
upon the historical variations in crime
and punishment and how these variations are related to changes in social
organization and social structure. In
contrast, most contemporary American
textbooks in criminology make little or
no attempt to analyze comparatively
the incidence and rates of crime in various societies and at various periods in
their history - nor is much attention
placed upon historical changes in penal
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266
DURKHEIM'S
sanctions as related to broader changes
in social organization and collective sentiments. In this context, Durkheim's
writings in the field of criminology and
penology should certainly demonstrate
that he, one of the recognized figures of
the "functional" school in sociology
which has recently been criticized by
some for focusing upon "static" analysis
at the expense of social change, made
full use of both a structural and a genetic
approach in analyzing social phenomena.
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