Excerpt from The Division of Labor in Society by Emile Durkheim (Chapter II Mechanical Solidarity, or Solidarity by Similarities II)

CHAPTER II

Mechanical Solidarity, or Solidarity by Similarities

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II

In the first place, punishment constitutes a passionate reaction. This characteristic is all the more apparent the less cultured societies are. Indeed primitive peoples punish for the sake of punishing, causing the guilty person to suffer solely for the sake of suffering and without expecting any advantage for themselves from the suffering they inflict upon him. The proof of this is that they do not aim to punish fairly or usefully, but only for the sake of punishing. Thus they punish animals that have committed the act that is stigmatized, or even inanimate things which have been its passive instrument. When punishment is applied solely to people, it often extends well beyond the guilty person and strikes even the innocent—his wife, children, or neighbors, etc. This is because the passionate feeling that lies at the heart of punishment dies down only when it is spent. Thus if, after passion has destroyed the one who was its most immediate cause, some strength of feeling still remains, quite automatically it reaches out further. Even when it is sufficiently moderate in intensity to attack only the guilty person it manifests its presence by its tendency to exceed in seriousness the act against which it is reacting. From this there arose refinements of pain that were added to capital punishment. In Rome the thief had not only to give back the object stolen but also to pay a fine of double or even quadruple its value. Moreover, is not the aim of the very widespread punishment of talion to assuage the passion for vengeance?

Nowadays, however, it is said that punishment has changed in nature. Society no longer punishes to avenge, but punishes to defend itself. In its hands the pain it inflicts is only a systematic instrument for its protection. Society punishes, not because the punishment of itself affords some satisfaction, but in order that the fear of punishment may give pause to the evilly inclined. It is no longer wrath that governs repression, but well premeditated foresight. Thus the preceding remarks cannot be generally applied: they may concern only the primitive form of punishment and cannot be extended to cover its present-day form.

Yet, in order to justify legitimately so radical a distinction between these two sorts of punishment it is not enough to demonstrate that they are employed for different ends. The nature of a practice does not necessarily alter because the conscious intentions of those implementing it are modified. Indeed it could already have fulfilled the same role in former times without this having been perceived. In that case why should it be transformed by the mere fact that we realize more fully the effects that it produces? It adapts itself to the new conditions of existence created for it without thus undergoing any essential changes. This is what happened in the case of punishment.

It would indeed be mistaken to believe that vengeance is mere wanton cruelty. It may very possibly constitute by itself an automatic, purposeless reaction, an emotional and senseless impulse, and an unreasoned compulsion to destroy. But in fact what it tends to destroy was a threat to us. Therefore in reality it constitutes a veritable act of defense, albeit instinctive and unreflecting. We wreak vengeance only upon what has done us harm, and what has done us harm is always dangerous. The instinct for revenge is, after all, merely a heightened instinct of self-preservation in the face of danger. Thus it is far from true that vengeance has played in human history the negative and sterile role attributed to it. It is a weapon of defense, which has its own value—only it is a rough-and-ready weapon. As it has no conception of the services that it automatically renders it cannot be regulated accordingly. It strikes somewhat at random, a prey to the unseeing forces that urge it on, and with nothing to curb its accesses of rage. Nowadays, since we are better aware of the purpose to be achieved, we also know better how to use the means at our disposal. We protect ourselves more systematically, and consequently more effectively. But from the very beginning this result was achieved, although less perfectly. Thus between the punishment of today and that of yesterday there is no great gulf, and consequently punishment had no need to change to accommodate itself to the role that it plays in our civilized societies. The whole difference lies in the fact that punishment now produces its effects with a greater awareness of what it is about. Now, although the individual or social consciousness does not fail to influence the reality it highlights, it has no power to change the nature of that reality. The internal structure of the phenomena remains unchanged, whether these are conscious or not. We may therefore expect the essential elements of punishment to be the same as before.

And indeed punishment has remained an act of vengeance, at least in part. It is claimed that we do not make the guilty person suffer for the sake of suffering. It is nevertheless true that we deem it fair that he should suffer. We may be wrong, but this is not what is at issue. We are seeking for the present to define punishment as it is or has been, and not how it should be. Certainly the term “public vindication,” which recurs incessantly in the language of the law courts, is no vain expression. If we suppose that punishment can really serve to shield us in the future, we esteem that above all it should be an expiation for the past. What proves this are the meticulous precautions we take to make the punishment fit the seriousness of the crime as exactly as possible. These precautions would be inexplicable unless we believed that the guilty person must suffer because it is he who has done the injury, and indeed must suffer in equal measure. In fact this gradation is unnecessary if punishment is only a defense mechanism. It would undoubtedly be dangerous for society if the gravest criminal undertakings were placed on the same level as mere minor offenses. Yet in most cases there could only be advantage in placing the minor ones on the same level as the serious ones. One cannot take too many precautions against one’s enemy. Can we say that the perpetrators of the most trivial offenses possess natures any less perverse and that, to counteract their evil instincts, less onerous punishments will suffice? But although their tendencies may be less tainted with vice, they are not thereby less intense. Thieves are as strongly disposed to thieving as murderers to homicide. The resistance shown by the former category is in no way weaker than that of the latter. Thus, to overcome it, we should have recourse to the same means. If, as has been said, it was solely a matter of repelling a harmful force by an opposing one, the latter’s intensity should be merely commensurate with that of the former, without the quality of the harmful force being taken into consideration. The scale of punishments should therefore comprise only very few gradations. The punishment should vary only according to whether the subject is more or less hardened a criminal, and not according to the nature of the criminal act. An incorrigible thief should be treated like an incorrigible murderer. But in fact, even when it had been shown that the guilty person is definitely incurable, we would still feel bound not to mete out excessive punishment to him. This demonstrates that we have remained true to the principle of talion, although we conceive of it in a more lofty sense than once we did. We no longer measure in so material and rough terms either the gravity of the fault or the degree of punishment. But we still consider that there should be an equilibrium between the two elements, whether we derive any advantage or not in striking such a balance. Thus punishment has remained for us what it was for our predecessors. It is still an act of vengeance, since it is an expiation. What we are avenging, and what the criminal is expiating, is the outrage to morality.

There is above all one form of punishment where this passionate character is more apparent than elsewhere: it is shame that doubles most punishments, and that increases with them. Very often it serves no purpose. What good does it do to disgrace a man who is no longer to live in the society of his peers and who has more than abundantly proved by his behavior that more fearful threats have failed to deter him? To disgrace him is understandable when there is no other punishment available, or as a supplement to some comparatively trivial material penalty. Where this is not the case punishment is redundant. One may even say that society resorts to legal punishments only when others are inadequate. If this is so, why continue with the latter? They are a form of additional torment that serves no purpose, or one whose sole reason is the need to repay evil with evil. They are so much the result of instinctive, irresistible feelings that they often spread to innocent objects. Thus the scene of the crime, the tools used in it, the relatives of the guilty person—all sometimes share in the opprobrium that we heap upon him. The causes that give rise to this diffused repression are also those of the organized repression that accompanies it. Moreover, we need only observe how punishment operates in the law courts to acknowledge that its motivating force is entirely emotional. For it is to the emotions that both prosecuting and defending counsel address themselves. The latter seeks to arouse sympathy for the guilty person, the former to stir up the social sentiments that have been offended by the criminal act, and it is under the influence of these opposing passions that the judge delivers sentence.

Thus the nature of punishment has remained essentially unchanged. All that can be said is that the necessity for vengeance is better directed nowadays than in the past. The spirit of foresight that has been awakened no longer leaves the field so clear for the blind play of passion; it contains it within set limits, opposing absurd acts of violence and damage inflicted wantonly. Being more enlightened, such passionate action spreads itself less at random. We no longer see it turn upon the innocent, in order to have satisfaction come what may. Nevertheless it lies at the very heart of the penal system. We can therefore state that punishment consists of a passionate reaction graduated in intensity.

From where, however, does this reaction spring? Is it from the individual or from society?

We all know that it is society that punishes. But it might be that it does not do so on its own behalf. Yet what places beyond doubt the social character of punishment is that once it is pronounced, it cannot be revoked save by government, in the name of society. If it were a satisfaction granted to individuals, they would always be the ones to decide whether to commute it: one cannot conceive of a privilege that is imposed and which the beneficiary cannot renounce. If it is society alone that exerts repression, it is because it is harmed even when the harm done is to individuals, and it is the attack upon society that is repressed by punishment.

Yet we can cite cases where the carrying out of the punishment depends upon the will of individuals. In Rome certain offenses were punished by a fine that went to the injured party, who could waive it or make it the subject of bargaining: such was the case for covert theft, rapine, slander, and malicious damage. These offenses, termed private offenses (delicta privata), were contrasted with crimes proper, repression of which was carried out in the name of the city. The same distinction is found in Greece and among the Jews. Among more primitive peoples punishment seems occasionally to be a matter even more completely private, as the practice of the vendetta tends to show. Such societies are made up of elementary aggregates, almost of a family nature, which may conveniently be designated clans. When an attack is committed by one or several members of a clan against another clan, it is the latter that itself punishes the offense committed against it. What at least apparently gives even more importance to these facts, with respect to legal doctrine, is that it has been frequently maintained that the vendetta was originally the sole form of punishment. Thus at first punishment may have consisted of private acts of vengeance. But then, if today society is armed with the right to punish, it seems that this can only be by virtue of some sort of delegation by individuals. Society is only their agent. It is their interests that it looks after in their stead, probably because it looks after them better. But they are not properly those of society itself. In the beginning individuals took vengeance themselves; now it is society that avenges them. Yet since the penal law cannot have changed its nature through this simple transfer, there is thus nothing peculiarly social about it. If society appears to play a predominant role it is only as a substitute for individuals.

Yet however widely held this theory may be, it runs counter to the best established facts. We cannot instance a single society where the vendetta was the primitive form of punishment. On the contrary, it is certain that penal law was essentially religious in origin. This is clear in the case of India and Judaea, since the law practiced there was considered to be one of revelation. In Egypt the ten books of Hermes, which contained the criminal law and all other laws relating to the governance of the state, were called sacerdotal, and Elien asserts that from earliest times the Egyptian priests exercised judicial power. The same holds true for ancient Germany. In Greece justice was considered to be an emanation from Zeus, and the passion as a vengeance from the god. In Rome the religious origins of the penal law are made clear by ancient traditions, by archaic practices which subsisted until a late date, and by legal terminology itself. But religion is something essentially social. Far from pursuing only individual ends, it exercises constraint over the individual at every moment. It obliges him to observe practices that are irksome to him and sacrifices, whether great or small, which cost him something. He must give from his possessions the offerings which he is constrained to present to the divinity. He must take from his work or leisure time the necessary moments for the performance of rites. He must impose upon himself every kind of privation that is commanded of him, and even renounce life itself if the gods so decree. The religious life is made up entirely of abnegation and altruism. Thus if criminal law was originally religious law, we may be sure that the interests it served were social. It is offenses against themselves that the gods avenge by punishment, and not those of individuals. This is because the offences against the gods are offenses against society.

Thus in lower societies the most numerous offenses are those that are injurious to the public interest: offenses against religion, customs, authority, etc. We have only to see in the Bible, the laws of Manu, and the records surviving of ancient Egyptian law how slight in comparison is the importance given to prescripts that protect individuals. This is in contrast to the abundant growth of repressive legislation concerning the various forms of sacrilege, failure to observe the various religious obligations, and the requirements of ceremonies, etc. At the same time these crimes are those most severely punished. Among the Jews the most abominable crimes are those committed against religion. Among the ancient Germans two crimes alone were punished by death, according to Tacitus: treason and desertion. According to Confucius and Meng Tseu (Mencius), impiety is a more grievous transgression than assassination. In Egypt the slightest act of sacrilege was punished by death. In Rome, at the top of the scale of criminality was to be found the crimen perduellionis.

But what then are these private punishments, instances of which we have noted earlier? They are of a mixed nature, partaking of both a repressive and a restitutive sanction. Thus the private offense in Roman law represents a kind of intermediate stage between real crime and the purely civil wrong. It has features of both and hovers on the bounds of both domains. It is an offense, in the sense that the sanction prescribed by the law does not consist merely in putting matters to rights; the offender not only is obliged to make good the damage he has caused, but owes something else in addition, an act of expiation. However, it is not entirely a crime since, although it is society that pronounces the sentence, it is not society that is empowered to apply it. This is a right that society confers upon the injured party, who alone can exercise it freely. Likewise, the vendetta is clearly a punishment that society recognizes as legitimate, but leaves to individuals the task of carrying out. Thus these facts merely confirm what we have stated regarding the nature of the penal system. If this kind of intermediate sanction is partly a private matter, to a corresponding extent it is not a punishment. Its penal nature is proportionately less pronounced when its social character is less evident, and vice versa. Private vengeance is therefore far from being the prototype of punishment; on the contrary, it is only an incomplete punishment. Far from crimes against the person being the first to be repressed, in the beginning they are merely situated on the threshold of the penal law. They only moved up in the scale of criminality as society correspondingly assumed control of them more completely. This process, which we need not describe, was certainly not effected by a mere act of transferral. On the contrary, the history of this penal system is nothing but a progressive succession of encroachments by society upon the individual, or rather upon the primary groupings that it comprises. The effect of these encroachments was increasingly to substitute for the law relating to individuals that relating to society.

But the characteristics outlined above belong just as much to that diffused repression which follows acts that are merely immoral as to legal repression. What distinguishes the latter, as we have said, is that it is organized. But in what does this organization consist?

When we reflect upon the penal law as it functions in present-day societies we represent it as a code in which very precise punishments are attached to crimes equally precisely defined. It is true that the judge enjoys a certain latitude in applying to each particular case these general dispositions. But in its essentials the punishment is predetermined for each category of criminal acts. This elaborate organization is not, however, an essential element in punishment, because many societies exist in which punishments are not prescribed in advance. In the Bible there are numerous prohibitions which are utterly categoric but which are nevertheless not sanctioned by an expressly formulated punishment. Their penal character, however, is not in dispute, for, although the texts remain silent regarding the punishment, at the same time they express so great an abhorrence for the forbidden act that one cannot suspect for a moment that it will remain unpunished. Thus there is every reason to believe that this silence on the part of the law simply relates to the fact that how a crime was to be repressed was not determined. Indeed many of the stories in the Pentateuch teach us that there were criminal acts whose criminality was undisputed, but where the punishment was determined only by the judge who applied it. Society was well aware that it was faced with a crime, but the penal sanction that was to be attached to it was not yet defined(*36). Moreover, even among those punishments laid down by the legislator there are many that are not precisely specified. Thus we know that there were different forms of torture which were not all on the same footing. Yet in a great number of cases the texts speak only generally of the death penalty, without stating what manner of death should be inflicted. According to Sumner Maine the same was true of early Rome; the crimina were tried before the assembly of the people which, acting in a sovereign capacity, decreed what the punishment was to be by a law, at the same time as establishing the truth of the charge. Moreover, even until the sixteenth century the general principle of the penal system “was that its application was left to the discretion of the judge, arbitrio et officio judicis. . . . Only the judge was not allowed to devise punishments other than those that were customary.” Another consequence of this judicial power was to make dependent upon the judge’s discretion even the nature of the criminal act, which was thus itself indeterminate.

[*36. A man was found gathering wood on the Sabbath day: “Those who had caught him in the act brought him to Moses and Aaron and all the community, and they kept him in custody, because it was not clearly known what was to be done with him” (Numbers 15:32–34). Elsewhere the case concerns a man who had taken God’s name in vain. Those present arrested him but did not know how he should be dealt with. Moses himself did not know, and went away to consult God’s will (Leviticus 24:12–16). (The biblical quotation is given in the translation of the New English Bible.)]

So it is not the regulation of punishment that constitutes the distinctive organization of this kind of repression. Nor is it the institution of a criminal procedure. The facts we have just cited suffice to show that for a long time this was lacking. The only organization met with everywhere that punishment proper existed is thus reduced to the establishment of a court of law. In whatever way this was constituted, whether it comprised the people as a whole or only an elite, whether or not it followed a regular procedure both in investigating the case and in applying the punishment, by the mere fact that the offense, instead of being judged by an individual, was submitted for consideration to a properly constituted body and that the reaction of society was expressed through the intermediary of a well-defined organism, it ceased to be diffuse: it was organized. The organization might have been more complete, but henceforth it existed.

Thus punishment constitutes essentially a reaction of passionate feeling, graduated in intensity, which society exerts through the mediation of an organized body over those of its members who have violated certain rules of conduct.

Now the definition of crime we have given quite easily accounts for all these characteristics of punishment.

[To be Continued...III-IV]