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(Cursai Coireolaiochta Na h-Eireann)

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Seamus Breathnach

2. History/
Anthology
Studies in Irish Criminology:
Book One

2.a.Emile Durkheim On Crime And Punish-

ment (An Exegesis)
Students do not generally find Emile Durkheim easy. So, why begin with him? Aren’t there other
criminologists that are less abastruse that one could begin with?

Of course 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 aspects with which we might successfully ac-
quainting ourselves.

To get over initial difficulties, however, let us begin by addressing seemingly simple questions.

What is crime? What do we mean by punishment? And what is the link between crime and pun-
ishment? If we ask these questions of Emile Durkheim, he will reply some as follows.

Crime is something that offends every normal individual’s strong and defined sentiments.

Would you agree with this simple definition of crime in general?

Secondly, what about punishment? What does Durkheim say Punishment is?

Punishment is a passionate social reaction, of graduated intensity.

The passionate reaction is aimed at the criminal. Nothing could be apparently 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 inten-
sively 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 un-
derstand. 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 judgment.’
This concept of the ‘day of general judgment’, 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.

INTRODUCTION

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 pun-
ishment.
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 evolu-
tion, 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 the-
ory of crime from Lombroso, Tarde, Garofalo and the Italian School; and in his theory of pun-
ishment (as in his ‘theory’ of the State) from Kant and the Utilitarians. In anthropology, philoso-
phy, 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 irritates 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.
Abbreviations Used
DOL = The Division of Labour in Society, trans. by G. Simpson, 1933
ROSM = The Rules of The Sociological Method, trans. by S.A. Soloway and
J.H. Mueller, 1938
S= Suicide: A Study in Sociology, trans. by J.A. Spaulding and G. Simpson,
1975
TLOPE = Two Laws of Penal Evolution, trans. by T. Anthony Jones and
Andrew T. Scull, Economy and Society, v. 2, no. 3, Aug., 1973
JS = The introduction to TLOPE by Jones and Scull
EFRL = The Elementary Forms of the Religious Life, trans. by J.W.
Swain, 1976
EAS = Education and Sociology, trans. by S.D. Fox, 1956
SAP = Sociology and Philosophy, trans. by D. F. Pocock, 1933
ME = Moral Education, trans. by E.K. Wilson and H. Schnurer, 1961
PECM = Professional Ethics and Civic Morals, trans. by C. Brookfield,
1957
SL= Steven Lukes: ‘Emile Durkheim: His Life and Work, A Historical and Critical
Study’, 1973.

Emile Durkheim on Crime and Punishment

http://www.dissertation.com/library/1121547a.htm\

1. Emile Durkheim On Crime And Punishment A

ISBN: 1581121547 Format: Paper Back Author: Seamus
Breathnach Retail Price: 13.95 Stock: 0
Publisher: BERTRAMS PRINT ON DEMAND
 Table of Contents

Page

Introduction








I

Chapter 1:
Criminology and Philosophy




1

Chapter 2.
Criminal and Penal Statics




14
A. Criminal Statics or Crime Defined
B. Penal Statics or Punishment Defined


24
C. Crime and Punishment




29

Chapter 3:
Criminal and Penal Dynamics



42
A. Social Dynamics
B. Criminal Dynamics




56
C. Penal Dynamics





67

Chapter 4:
Crime and Punishment and the State



77
A. The State
B. Crime and the State




94
C. Punishment and the State



100

Chapter 5:
The Moral, the Methodological, and the Normal
108
A. Crime and Morality
B. Methodology





135
C. Normal Crime





149

Chapter 6: Notes Towards a Critical Appreciation

138

Appendix A






145
Abbreviations Used Throughout Reference Notes

148
References






149
ABSTRACT

In civilized society the rising "crime rate" is a thing of terror. Clever governments manipulate it,
the public messianically fear it , and the social scientists misunderstand it. In the face of such
confusion Emile Durkheim reminds us that without a crime rate society is utterly impossible ; it
cannot constitute itself, maintain its solidarity, or develop morally. In short, we cannot live with
or without a crime rate.

This dissertation is an exegetical work, and attempts to unpack the Criminology of Emile Durk-
heim. It is divided into six chapters, five of which are expository, the sixth critical. It begins with
a look - in overview - at Durkheim`s philosophy and how it underpins his theories of crime and
punishment (chap.1).

By their nature theories of crime and punishment (chap.2) presuppose the more primary theoreti-
cal formulations both of evolution and society (chap.3), the one answering the theoretical time
requirement, the other the spatial requirement, and each symbiotically related to the other in an
integral theory of social evolution. Durkheim`s treatment the modern State(and the Conscience
Collective) as an or organ of social control (chap.4) , is of primary importance, not least because
it underpins his treatment of the broader issues , such as the connection between civil and crimi-
nal law , morality, and authority(chap. 5).

Since there is hardly a serious Durkheimian proposition that is reducible to a provable or an un-
contentious fact (chap. 6) , it can hardly surprise us that, on the one hand, he attracted such copi-
ous criticism and, on the other , has remained, perhaps the most popular sociologist of the twen-
tieth and twenty first centuries.
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. Conse-
quently, 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 vacillat-
ing 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 abnor-
mal. 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, accord-
ing 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 un-
derstood, 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 of
by members of each society. There are two indirect qualifications to this form
of Durkheimian reasoning which are of significance, particularly to those
who, like Sorel, criticized him for not going further in the direction of Marxism
with his analysis. First, Durkheim sees no necessity to 'see in crime a malady
or 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 collective

sentiments whose violation constitutes a crime, rather than draw up a list of
infractions, which would be subject to infinite variability, we can distinguish them
by one single trait, namely, 'they are common to the average mass of individuals of
the same society.' (30) In refuting the 'social-interest' theorists, it will be observed
that Durkheim was not concerned with the 'average' mass of individuals, or the
possibility 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 is codified.

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 obliga-
tions and defining their sanction in the breach, we need to explain why civil law (and, more gen-
erally, 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, and the duty not to kill can only be explained by one reason, and that is that it is al-
ready 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 objects of litigious contest; everybody in other words,
feels their authority.
(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 de-
fining 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 con-
sciences, 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 pe-
nal’, 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 sen-
timents 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 de-
termined. 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 senti-
ments -- that is, penal rules ‘cannot be understood in different ways, they are ever the same’. (37)

PUNISHMENT

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 be-
tween 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 Newgate 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 pun-
ishment to signify the force of society’s passionate reaction as yet unspent. This explains the doc-
trine 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 pun-
ishment, 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 senti-
ments 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 punish-
ment 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 venge-
ance 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, how-
ever, 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 punish-
ments 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 incur-
able, ‘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 pun-
ishment or that it was ‘primitively the unique form of punishment’, is not, according to Durk-
heim, 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 criminol-
ogy: 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 po-
lygamy 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 inter-
ests 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 inter-
mediaries, 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 pas-
sionate 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 punish-
ment. 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 un-
derstand the matter more thoroughly we would have to touch upon Durkheim`s theory of sanc-
tions, his account of ‘the average’ the healthy’, ‘the normal’, and various other concepts, includ-
ing 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 argu-
ments 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 het-
erogeneous 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)

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