In a seminal statement, Emile Durkheim argued that punishment of crime has a salutary effect on society by reaffirming the collective consciousness. With few exceptions, Durkheim assumed that criminal punishment is done on behalf of society. With the rise of prison privatization, this assumption is increasingly called into question. For-profit firms carrying out punishment, though legally agents of the state, are motivated by private gain. This article asks: How might privatization modify the functional effects of punishment? It develops answers to this question by using insights from Durkheimian and neo-Durkheimian scholarship and the empirical case of modern privatized punishment in the United States. The article proposes three trajectories through which privatized punishment may (or may not) affect solidarity: Parity in Punishment, in which private and public punishers are seen as interchangeable; Public Interest, in which perceptions of greed and self-interest mar privatized punishment and sap it of its functional effects; and Sacred Transgressions, in which the private sector encroaches on sacred rites of punishment to the detriment of solidarity.
Students do not generally find Emile Durkheim easy. So, why begin with him? Aren’t there others criminologists who less abstruse that one could begin with?
There are many criminologists less difficult than Durkheim, but few of them dig as deeply, travel as far, or aim at satisfying so thoroughly. Later on, we shall eat these words and, indeed, find grave fault with Durkheim; but for the moment he does not have to be understood in Toto. But the tone he sets and the line he takes are worth acquainting oneself with.
To get over initial difficulties, however, let us begin by asking something apparently straightforward.
If we initial questions, like – What is crime? What do we mean by punishment? And what is the link between crime and punishment? If we ask these questions of Durkheim, he ready answers. He will reply as follows.
Crime is something that offends every normal individual’s strong and defined sentiments. This is what Durkheim means by crime. Would you agree with this simple definition of crime in general?
Secondly, what about punishment? Punishment, for Durkheim, is a passionate reaction, of graduated intensity. The passionate reaction is aimed at the criminal. Nothing could be simpler. But, again, do you agree with this formulation?
Finally, is there a link between crime and punishment so defined?
According to Durkheim, there is. Crime and punishment are linked through what he called our social or ‘ collective conscience’ – and it is this ‘conscience collective’ that makes crime intensively offensive to us and it also makes punishment society’s social resolution to crime. Would you agree?
None of these ideas (except, perhaps, the last) can be thought of in any respect as difficult to understand. Like so many others, you might want to hear more about this ‘collective conscience’. It is hardly the kind of concept you expect social scientists to use. And yet, the notion is not too removed from the Christian conscience, and even less so from the Catholic viewpoint, according to which we are all to be judged on the day of ‘general judgement.’ This concept of the ‘day of general judgement’, implies a general conscience and is arguably not that far removed from Durkheim`s earlier notion of the ‘ collective conscience.’
On this page, we elaborate on Durkheim’s response to the above questions. But first of all we introduce the work Emile Durkheim On Crime and Punishment , list some abbreviations that might prove useful, as well as the contents of the text.
By their very nature theories of crime and punishment presuppose the more primary theoretical formulations both of evolution and society, the one answering the theoretical time requirement, the other the spacial requirement, and each symbiotically related to the other in an integral theory of social evolution. Into such an overall perspective sink Durkheim`s theories of crime and punishment.
It is the intention of this essay to explicate these theories without, it is hoped, paying too much attention to extra- criminological or penological concerns at their expense. In his theory of evolution, for example, Durkheim felt the necessity to differentiate himself, from Comte and Spencer ; in his social theory from theorists like Rousseau, J. Stuart Mill, Hobbes, Machiavelli ; in his theory of crime from Lombroso, Tarde, Garofalo and the Italian School ; and in his theory of punishment (as in his ‘theory’ of the State) from Kant and the Utilitarians. In anthropology, philosophy, religion, political economy, morality and pedagogy similar differentiations are made. There is, therefore, in a work of this modest nature, an obvious need to choose not just what is pertinent to Durkheim`s theories of crime and punishment, but, also, what is important.
Since the aim of the essay is an expositional account of these theories, the more popular interest in `anomie` and ‘suicide’ are not formally dealt with. Because of this overriding perspective and the lack of space available, criticism has practically been reduced to a hurried sixth chapter. This latter constraint has also prohibited recourse to original French texts. Consequently, there is a total reliance on popular translations of Durkheim`s major works - a reliance which, if we are to accept the advice of the erudite, must necessarily cast some doubt on the interpretation which these pages purport to ascribe to Durkheim`s theories of crime and punishment. Steven Lukes has found serious fault with these translations, particularly the two major texts upon which this essay has heavily relied, viz. ‘The Division of Labour’ and ‘The Rules.` (cf. Lukes, n. 589). In view of such limitations one can do no more than reiterate Lukes. ‘We urgently need a standard English edition of Durkheim`s works” (Ibid).
The following abbreviations should be familiarized by the reader , lest their repeated appearance irritate him unduly. I am not at all convinced that the use of these abbreviations benefits either the reader or the writer one whit - but it seemed like a good idea at the time.
Emile Durkheim on Crime and Punishment
By Seamus Breathnach.
1. Emile Durkheim On Crime And Punishment A
Format: Paper Back
Author: Seamus Breathnach
Retail Price : 13.95
Stock : 0
Publisher : BERTRAMS PRINT ON DEMAND
SO, WHAT IS CRIME ESSENTIALLY?
A crime is an act which offends strong and defined states of the collective conscience, because the only characteristics common to all crimes, which are or have been recognized as such, are the following:
(a) A crime offends sentiments which are found among all normal individuals of any given society;
(b) These sentiments are strong ;
(c) These sentiments are defined.
Let us examine these three ingredients.
(a) The Sentiments of Normal Individuals
In arriving at this proposition Durkheim -- methodologically speaking – distinguishes himself from (i) Garafalo and (ii) The Marxists, particularly Quinney,
If, as Durkheim initially commended, we set out to enumerate acts ubiquitously recognized as crimes and attempt to classify their characteristics, we would, he claimed, wind up with a set of crimes - indeed universally recognized - but which would be small and exceptional in number. This type of natural crime would total the offenses that are contrary to universal sentiments and would be, on that account, the ‘ invariable part of the moral sense and that alone’. Such a method, he held is faulty on a number of grounds. If, for example, we tried to collate them with a list of acts universally punished, we would not be satisfied, because the latter would be excessive whereas the former, being a collection only common to all societies, would be minimal.
Secondly, such a method would exclude crimes which offend some particular sentiment but which are on that account no less crimes. Thirdly, for Durkheim, all delicts are natural. Consequently, Garafalo`s specification of natural crimes seems to be a return to Spencer’s doctrine,(27) ‘which treats social life as truly natural only in industrial societies’ .
“The result is that his (Garafalo`s) notion of crime is singularly incomplete. It is vacillating because its author does not trouble himself to enter into a comparison of all social systems, but excludes a great number that he treats as abnormal. One can say of a social fact that it is abnormal relative to the type of the species, but a species cannot be abnormal. The two words cannot be joined “. (28)
Finally, since the variations of repressive law present diversity, their ‘constant characteristic’ cannot be found among the intrinsic properties of acts prohibited by penal rules, but must rather be sought ‘in the relations that they sustain with some condition external to them’. (28)
Is this relation between actions that are crimes and the society which designates them so to be explained in terms of certain great social interests? In other words, do penal rules announce the fundamental conditions of collective life for each social type? If so, such a view would, according to Durkheim, derive from the notion of social necessity, and as these necessities varied the variability of repressive law which accommodates them would be explained.
Durkheim rejected such a theory. Why? Because 'it accords too large a part in the direction of social evolution to calculation and reflection'. Besides that , there are some crimes which have been, and still are, graded as criminal without in themselves being harmful to society, (29) e.g. touching a tabooed object, an impure animal or man, or, 'in letting the sacred fire die down,' etc.
Moreover, if necessity was an adequate theory, why, he asks, are the greater disasters to society, such as economic crises, crashes on the stock exchange - why are these not penalised? Of course the simple answer here may well be that we cannot so readily apportion blame - much less criminal activity - to any particular
person or persons for an economic crisis. And if properly understood, economic crises are more apt to have been occasioned by society as a whole rather than any identifiable individual or group of individuals.
Further, if social necessity was theoretically sound, it would have to account for the fact that murder, which is not, socially speaking, very harmful (for 'what is one man less to society?'), is nevertheless the greatest of crimes amongst the most civilized peoples. What gives point to this argument is the fact that if murder went unpunished future general security would be menaced. It is in this sense that murder is looked upon as a great social harm, and requires explanation. There is also the further residual argument, which the 'social interest' theorists must explain, and that is, why the disproportionate punishment meted out to murderers in no way accords with the social significance of the danger they present to society.
In sum, therefore, some acts, more disastrous to society, go unpunished, while other acts, less dangerous, are disproportionately punished. How can a theory based on social necessity reconcile these anomalies? For Durkheim, such a theory cannot reconcile them. Consequently, a definition of crime derived from such a theory is demonstrably inadequate.
But if the theory is modified somewhat, if we define criminal acts as those which seem harmful to society, and set penal rules solely to protect what appears to society as the conditions of its essential life, what then? Can the theory not be rescued?
For Durkheim, the theory is still faulty. The question arises, for example, as to why so many societies are mistaken as to the social interests, which control their ideology. Why have they imposed practices, which by themselves were not even useful? If such practices were useful, it would be an explanation of sorts, but Durkheim rejects a utilitarian argument as being contrary to the facts. He also urges us to take it that society, in obliging each individual to obey its rules, does so, rightly or wrongly, because 'this regular and punctual obedience is indispensable' to it.
At this stage Durkheim will not take us further with his argument. As to why penal practices are socially necessary, it is sufficient, he feels, to assert that obedience is 'indispensable' to society. Consequently, the only common characteristic of all crimes is that they consist in acts universally disapproved ofby members of each society. There are two indirect qualifications to this formof Durkheimian reasoning which are of significance, particularly to thosewho, like Sorel, criticized him for not going further in the direction of Marxismwith his analysis. First, Durkheim sees no necessity to 'see in crime a maladyor an error.' Secondly, his inquiry seeks 'to determine what crime is or has been,not what it ought to be.'
Thus far, therefore, we have established that in identifying the collectivesentiments whose violation constitutes a crime, rather than draw up a list ofinfractions which would be subject to infinite variability, we can distinguish themby one single trait, namely, 'they are common to the average mass of individuals ofthe same society.' (30) In refuting the 'social-interest' theorists, it will be observedthat Durkheim was not concerned with the 'average' mass of individuals, or thepossibility of this average being segmental or elitist. It is a social average!
Such a definition, however, helps to explain two legal phenomena, the legal maxim‘ ignorance of the law is no excuse’ and, secondly, the manner in which penal law iscodified.
In the first case, ignorance of the law becomes no excuse only if it is possible that its contents are common knowledge. Unlike restitutive sanctions, penal ones ‘are graven in all consciences’ such that everybody in the society to which they apply knows them and feels them to be well founded.
(Obviously such a finding is highly significant to small societies – like Ireland , perhaps, or even smaller communities. Is it because of this smallness that religious norms can have such a strong hold – and conversely, when there are two or more vying for supremacy, such violence attending upon their derivative institutions? Moreover, was this the reason that Aristotle thought that the ‘Police’, a society of around 5,000 inhabitants, was a better sized society to live in? Is such a society better for human development than ,say, one which can , because of its extra size, afford great swimming pools, football arenas, etc? Obviously, crime might be at a minimum here; but only if the norms or religion in that society was homogeneous and shared – not as a measure of coercion, but as a matter of voluntary engagement. Should communities and cities be allowed to grow indiscriminately or according to the laws of capital formation??
In the second case, since every written law has the double object of prescribing certain obligations and defining their sanction in the breach, we need to explain why civil law (and, more generally, restitutive sanctions) sets out only the duty, whereas penal law only sets out the sanction. Durkheim explains that, in the case of civil law, the legislator solves the two questions separately by initially determining the obligation and leaving it to the courts to later stipulate its condign sanction. Penal law, however, says nothing of duty but simply sets forth only sanctions; it does not command respect for the life of another, but kills the assassin. The absence of the rule, the obligation, the duty not to kill can only be explained by one reason, and that is that it is already known and accepted by everybody.
Moreover, when a law of custom becomes initially written and codified, it is because a more definite solution is demanded not so much as to what the rule is but what its punishment should be. It is thus that the graduated scale of punishment lends itself to doubt.
Inversely, rules not requiring legal formulation but whose breach is nonetheless punished, remain unformulated because they are not the object of litigious contest; their authority is, in other words, felt by everybody.
(b) What then, does Durkheim mean by ‘Strong Sentiments’.
By merely saying that crime consists of an offense to collective sentiments, we stop short of defining it. Incest, for example, is an offense, yet it was not held to be a crime in certain civilized countries until early in the twentieth century. To constitute a crime, therefore, we must go further and say, not just that the sentiments to which crime corresponds must be engraven on all consciences, but it must be strongly engraven there. In other words, to constitute a crime, collective sentiments must singularize themselves from others by some additional distinctive property; “they must have a certain average intensity”. (32)
To prove this proposition Durkheim observes the extreme slowness with which penal law evolves in comparison with civil law. Because they are ingrained in us penal law evolves very slowly from lower to higher societies, whereas civil law, including commercial, administrative and constitutional law, has a higher growth rate. In lower societies law is almost exclusively penal’, stationary, religious, repressive and conservative. (33) “This fixity of penal law evinces the restrictive force of the collective sentiments to which it corresponds. Inversely, the very great plasticity of purely moral rules and the relative rapidity of their evolution show the smaller force of the sentiments at their base; either they have been more recently acquired and have not yet had time to penetrate deeply into consciences, or they are in process of losing strength and moving from depth to surface.” (34)
(c) What does Durkheim mean by ‘Defined Sentiments’?
Unlike the diffuse sentiments which purely moral sanctions protect, those which crime offends are, as we have seen, stronger and more organized. But our feelings concerning familial love, or our duty to be charitable, for example, are no less intense, yet we do not make the wayward son or ‘the most hardened egotist’ criminals. The distinction here lies in the fact that ‘ sentiments like filial love or charity are vague (35), aspirations towards very general objects . whereas those sentiments which constitute a crime are always determined. Moral rules are ‘generally somewhat nebulous’, whereas penal laws ‘are remarkable for their neatness and precision ,’ (36)
Unlike the inchoate nature of moral rules, therefore, penal rules incarnate sentiments that are determined. Because each sentiment forbids the commission or omission of this or that practice it has to have arrived at a very defined state and is, consequently, more uniform than moral sentiments -- that is, penal rules ‘cannot be understood in different ways, they are ever the same’. (37)
Now that we have some idea of what crime is really about , where does punishment come into it?
To prove that his definition of crime was exact, Durkheim sought to find a correspondence between the elements in his definition of crime and those constituting punishment, the latter acting as a cheek on the reliability of the former. Since ‘what characterizes crime is that it determines punishment’, it follows that if Durkheim`s definition of crime is exact, it ought to explain all the characteristics of punishment’. (39)
HOW DID DURKHEIM DEFINE PUNISHMENT?
(a) Punishment is a passionate reaction, of graduated Intensity.,
(b) This passionate reaction emanates from society;
(c) This reaction is enforced through the intermediary of a constituted body.
Let us now examine what he meant by three ingredients of punishment
(a) Punishment Is a Passionate Reaction, of Graduated Intensity
Since passion is the very soul of punishment it ceases only when it becomes exhausted. We can observe the passionate nature of punishment in the roles played by defense and prosecuting counsel in the crimina1 courts. Defense counsel seeks to excite sympathy for the defendant and the prosecution evokes the social sentiments which the accused has violated. In varying degrees the judge and/or the jury mediates between these contrary passions.
The more a society approximates a traditional type, the more passionate and the less tempered by reflection its punishments are. Primitive peoples punish for the sake of punishing. The passionate and reflexive reaction to hurt done is applied neither justly nor usefully. Even in later times, up to the seventeenth and eighteenth century, as Radzinowitz`s research or the New gate Calendar will testify, the reagent of punishment has a tendency to surpass the hurt done by the criminal act, even after the criminal has been destroyed. These refinements of pain were added to capital punishment to signify the force of society’s passionate reaction as yet unspent. This explains the doctrine of retribution.
Today, however, society no longer (it is said) punishes to avenge itself, but rather to defend itself. Chastisement does not provide satisfaction for society; it punishes rather to instill a fear of punishment, so that such fear ‘ may paralyze those who contemplate evil’. (40) This explains the doctrine of deterrence (individual and general). But how can this change from retributive sentiments to deterrent ones be explained?
For Durkheim it is vain to try and distinguish between these two forms of punishment in terms of themselves. The forms of punishment may adapt themselves to new conditions of existence without there being any essential change in the nature of punishment itself :‘In the final social analysis, the essential elements of punishment are the same as of old’ (41) Between the punishment of today and yesterday there is no chasm (42)Consequently, to accommodate itself to the role that it plays in our civilized societies, the nature of punishment did not have to change. But what, then, is the nature of punishment?
In answering this question we should first understand that it is erroneous to believe that vengeance is merely useless cruelty. In itself it may indeed be a mechanical and aimless reaction aimed at destruction, ‘ but, in fact, what it tends to destroy was a menace to us’. Vengeance consists, then,‘ in a veritable act of defense, although an instinctive and unreflective one’. (43) And since we only avenge ourselves upon that which has done us evil and is, consequently, dangerous, vengeance is, ‘in sum, only the instinct of conservation exacerbated by peril’. (44)
At least in part, therefore, punishment has an element of vengeance in it. More importantly, however, by supposing that punishment protects us in the future ‘we think that it ought to be above all an expiation of the past’. The proof of this”, claims Durkheim,
“lies in the minute precautions we take to proportion punishment as exactly as possible to the severity of the crime; they would be inexplicable if we did not believe that the culpable ought to suffer because he has done evil and in the same degree?’. (46) If defense, rather than expiation, was the primary motive for punishment, then punishment would be meted out to match the obduracy of the criminal, and a robber who robs as intensely as a murderer murders would be administered the same punishment. There would be no need to scale punishments to the gravity of the crimes committed. But this is not the case: while the principle of retaliation remains the nature of punishment in general, the criminal act nevertheless determines the nature of the punishment meted out. If, moreover, the criminal is incurable, ‘we would feel bound not to chastise him unduly’. (47)
Indeed, we may not measure the crime-and-punishment equation‘ in so material and gross a manner’ as formerly, but we always think that such an equation should exist. Punishment may well be better directed than formerly it was, but its nature has not changed:
“It is still an act of vengeance since it is an expiation. What we avenge, what the criminal expiates, is the outrage to morality’. (48)
(b) This Passionate Reaction Emanates From Society
What puts this almost self-evident proposition beyond doubt for Durkheim is the fact that once a sentence is pronounced, it cannot be lifted except by intervention of government in the name of society. This is so because, in attacking the individual, the criminal is simultaneously attacking society, and society arrogates to itself the right of repression by punishment.
Even where ‘ delicta privata,’ were possible, e.g. in Greece and Rome, the offences committed were not crimes proper. Nevertheless, the offenders were punished in the name of the city.
Furthermore, the argument suggesting that the custom of the vendetta amounted to private punishment or that it was ‘primitively the unique form of punishment’, is not, according to Durkheim, tenable.
Not a single society”, he claims, ‘ can be instanced where the vendetta s been the primitive form of punishment. On the contrary, it is certain that penal law was essentially religious in its origin’. (49) By reasoning thus we come back to one of the primary postulates of Durkheimian criminology: since religious life is essentially social, primitive societies are found to avenge offenses against their God(s). ‘ But offenses against the gods are offenses against society’. (50)
(The identity of Society with God in Durkheimian analysis is quite cogent and should be reflected upon in the Irish context. Whereas the concept ‘God’ is invariably sanitized, paralyzed and out of everybody’s reach, Society is a much more pro-active and malleable item. Through the earliest notions of ‘right’ and ‘wrong’ , even before the Church’s Penitentials, there were moral rules; but those who impose moral rules invariably claim power over the people and impose their morals. In this regard: was there any capital punishment in Ireland before the Christian Conquest? Or did the Christians introduce it to punish the pagan Gaels? How did the early church abolish polygamy amongst the native Irish in favour of monogamy, and why? Did women have Goddesses in Gaelic Ireland – like Sile Na Gig – and how and why did the Christian Conquest crush the spirituality of women in Ireland?
We can see from our own history/anthropology how those who seize society --whether they be political parties, do-gooders, powerful monied people, songsters, sportsmen, or journalists – must on reflection be very organized in themselves in order to sustain such an assault on society as a whole. We can also see that individuals , whatever their interests, cannot really govern or change society – they could never have the power to do so –nor , for that matter, are individuals likely to want to. Our greatest artists try to make us see for ourselves who governs our society, how it runs, who and how powerful organizations seize the power-centres of education, finance, justice, foreign affairs, and govern them on our purported behalf; how they even hide their interests or apologise for seizing these power-centres. Sometimes , the social power that Durkheim equates with God , hides behind the concept of God, even behind politicians and parties. The artist and the sociologist knows that the people must learn for themselves how to see the knots and chains that are daily imposed upon the body of people called Society, sometimes in the name of God, and always under the guise of ‘ good’.)
(c) This Reaction Is Enforced Through the Intermediary of a Constituted Body.
What distinguishes legal repression from other forms of repressing immoral actions is that it is organized, i.e. its administration is given over to some definite and established social origin.
It would be wrong to think that simply because collective sentiments are enforced through intermediaries, be they juries, magistrates, etc., or that they localise themselves in a restricted number of consciences, that they are on that account less collective in spirit. (51) On the contrary, by submitting the collective reaction to a definite organ as an intermediary between the offender and the collectivity whose sentiments are offended, the collective sentiments constituting the passionate reaction cease to be diffuse and become, instead, organised.
Just as he had qualified his analysis of crime Durkheim, at this stage, insisted that his analysis of punishment was based on punishment as it is or has been, not as it ought to be.
Thus far, then, we have looked at Durkheim`s definition of crime and his definition of punishment. What we haven’t touched on is the connection between both these two defined concepts. It is at this stage that we have to travel much further than we might initially have wanted to. To understand the matter more thoroughly we would have to touch upon Durkheim`s theory of sanctions, his account of ‘the average’ the healthy’, ‘the normal’, and various other concepts, including a definition of the ‘social fact’ and the methodology of sociological reasoning. Nevertheless, we have made a beginning, and the only thing to do now is to go forward.
WHAT THEN ABOUT THE LINK BETWEEN CRIME AND PUNISHMENT?
So important is the link between crime and punishment and the collective conscience from which both derive, that it is hardly possible to conceive of Durkheimian sociology without being first acquainted with it. Moreover, this triangular mechanism is so bound up with his total sociology that an understanding of the latter is almost imperative to an understanding of the former.
In the Division of Labour, for example, this mechanism permeates his notions concerning social solidarity, evolution, and, derivatively, anomie; in the Rules, he calls upon it to support his arguments concerning the methodological status of definition, causality in nature, and the social norm. In Suicide, the egoistic and anomic forms it assumes are but extended correlates of the conditions of social solidarity enunciated in the Division of Labour; in the ‘Elementary Forms’ he devotes (53) a chapter to ‘interdictions’, which are the primitive forms of sanction ; in the ‘laws’; his theory of sanctions, his treatment of discipline in education, his notion of civics and morals - all contain the same or a similar mechanism; or, perhaps, what is more correct, the same mechanism applied to different orders of phenomena.
It is not surprising, therefore, since this mechanism plays such a central role in Durkheim`s thought, that he has referred to it several times throughout his work - a necessity borne out of the confusion which, to some extent, he generates himself. In the Division of Labour, for example, we see how Durkheim derived the characteristics of punishment from his definition of crime. In the ‘laws’ he further states that ‘since punishment results from crime and expresses the manner in which it affects the public conscience, it is in the evolution of crime that we must seek the cause determining the evolution of punishment’ (54) But six years earlier in the Rules he had stated that ` in order to understand crime, we must begin with punishment’ (55) . In his ‘Sociology and Philosophy’, when dealing with the same link, though on the moral level, (i.e., why the act of murder, for example should be sanctioned at all) he wrote: “I do not as yet know the origin or explanation of this link. I merely note its existence and nature, without at the moment going any further’ .(56) In ‘Moral Education, he yet again – if more positively reveals his concern with this problem:
‘What is there in common between punishment and offense? They seem to be two heterogeneous things coupled artificially. But this is because we do not see the middle term that links them, that makes a bridge from one to the other: the sentiment evoked by the offence and from which the penalty results, the feeling that it is the result of the act and the essence of punishment”. (57)