Normality of Crime Formal & Substantive Rationalization Law Discussions

THEORIES OF SOCIETY Foundations of Modern Sociological Theory VOLUME II The Free Press of Glencoe COPYRIGHT© 1961 BY THE FREE PRESS OF GLENCOE, INC. PRINTED IN THE UNITED STATES OF AMERICA All rights in this book are reserved. No part of the book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles and reviews. For information, address: THE FREE PRESS OF GLENCOE A DIVISION OF THE MACMILLAN COMPANY THE CROWELL-COLLIER PUBLISHING COMPANY 60 Fifth Avenue, New York 11 Library of Congress Catalog Card Number: 61-9171 DESIGNED BY STONEY SOLOMON First Printing June 1961 Second Printing March 1962 872 Part Three, Sec. D-Social Structure, Motivation of Deviant, Conforming Behavior I- THE ELEMENTS OF DEVIANCE AND SOCIAL CONTROL 1. On the Normality of Crime BY EMILE DURKHEIM IF THERE is any fact whose pathological character appears incontestable, that fact is crime. All criminologists are agreed on this point. AI· though they explain this pathology differently, they are unanimous in recognizing it. But Jet us see if this problem does not demand a more extended consideration. We shall apply the foregoing rules. Crime is present not only in the majority of societies of one particular species but in all societies of all types. There is no society that is not confronted with the problem of criminality. Its fonn changes ; the acts thus characterized are not the same everywhere; but, everywhere and always, there have been men who have behaved in such a way as to draw upon themselves penal repression. If, in proportion as societies pass from the lower to the higher types, the rate of criminality, i.e., the relation between the yearly number of crimes and the population, tended to decline, it might be believed that crime, while still normal, is tending to lose this character of normality. But we have no reason to believe that such a regression is substantiated. Many facts would seem rather to indicate a movement in the opposite direction. From the beginning of the [nineteenth] century, statistics enable us to follow the course of criminality. It has everywhere increased. ~n France the increase is nearly 300 per cent. There 1s, then, no phenomenon that presents more indisputably all the symptoms of normality, since it appears closely connected with the conditions of all collective life. To make of crime a form of social morbidity would be to admit that morbidity is not something accidental, but, on the contrary, that in certain cases it grows out of the fundamental constitution of the living organism; it would result in wiping out all distinction between the physiological and the pathological. No doubt it is possible that Reprinted from Emile Durkheim, Tile Rules of Sociological M ethod, trans. Sarah Solovay and John Mueller, ed. George E. G. Catlin (G lencoe, Ill. : The Free Press 1950) pp. 65- 75, with the permission of The Free Press. ‘ ‘ crime itself will have abnormal forms as, for elt· ample, when its rate is unusually high. This excess is, indeed, undoubtedly morbid in nature. What is normal, simply, is the existence of criminality, provided that it attains and does not exceed, for each social type, a certain level, which it is per· haps not impossible to fix: in conformity with the preceding rules. 1 Here we are, then, in the presence of a conclu· sion in appearance quite paradoxical. Let us make no mistake. To classify crime among the phenomena of normal sociology is not to say merely that it is an inevitable, although regrettable phenomenon, due to the incorrigible wickedness of men; it is to affirm that it is a factor in public health, an integral part of all healthy societies. This result is, at first glance, surprising enough to have puzzled even ourselves for a long time. Once this first surprise bas been overcome, however, it is not difficult to find reasons explaining this normality and at the same time confirming it. In the first place crime is normal because a society exempt from it is utterly impossible. Crime, we have shown elsewhere, consists of an act that offends certain very strong collective sentiments. In a society in which criminal acts are no longer committed, the sentiments they offend would have to be found without exception in all individual consciousnesses, and they must be found to exist with the same degree as sentiments contrary to them. Assuming that this condition could actually be realized, crime would not thereby disappear; it would only change its form, for the very cause which would thus dry up the sources of criminality would immediately open up new ones. 1. From the fact that crime is a phenomenon of normal sociology, it does not follow that the criminal is an individual normally constituted from the biological and psychological points of view. The two questions are independent of each other. This independence will be better understood when we have shown, later on, the difference between psychological and sociological facts. . Emile Durkheim: On the Normality of Crime Indeed, for the collective sentiments which are protected by the penal law of a people at a specified moment of its history to take possession of the public conscience or for them to acquire a stronger hold where they have an insufficient grip, they must acquire an intensity greater than that which’ they had hitherto had. The community as a whole must experience them more vividly, for it can acquire from no other source the greater force necessary to control these individuals who formerly were the most refractory. For murderers to disappear, the horror of bloodshed must become greater in those social strata from which murderers are recruited;· but, firsLjt. must become greater throughout the entire society. Moreover, the very absence of crime would directly contribute to produce this horror; because any sentiment seems much more respectable when i~ is always and uniformly respected. One easily overlooks the consideration that these strong states of the common consciousnesS carrnot be thus reinforced without reinforcing at the same time the more feeble states, whose violation previously gave birth to mere infraction of convention -since the weaker ones are only the prolongation, the attenuated form of the stronger. Thus robbery and simple bad taste injure the same single altruistic sentiment, the respect for that which is another’s. However, this same sentiment is less grievously offended by bad taste than by robbery; and since, in addition, the average consciousness has not sufficient intensity to ‘react keenly to the bad taste, it is. treated with greater tolerance. That is why the person guilty of bad taste is’ merely blamed, whereas the t~ief is punished. But, if this sentiment grows stronger, to the point of silencing in all consciousnesses the inclination which disposes man to steal, he will become more sensitive to the offenses which, until then, touched him but lightly. He will react against them, then, with more energy; they will be the object of greater opprobrium, which will transform certain of them from the simple moral faults that they were and give them the quality of crimes. For example, improper con· tracts, or contracts improperly executed, which only incur public blame or civil damages, will become offenses in law, Imagine a society of saints, a perfect cloister of exemplary individuals. Crimes, properly so called, will there be unknown; but faults which appear venial to the layman will create ·there the same scandal that the ordinary offense does in ordinary consciousnesses. If, then, this society has the power to judge and punish, it will define these acts as criminal and will treat them as such. For the same reason, the perfect and upright man judges his 873 smallest failings with a severity that the majority reserve for acts more truly in the nature of an offense. Formerly, acts of violence against persons were more frequent than they are today, because respect for individual dignity was less strong. As this has increased, these crimes have become more rare; and also, many acts violating this sentiment have been introduced into the penal law which were not inciuded there in primitive times.• In order to exhaust all the hypotheses logically possible, it will perhaps be asked why this unanimity does not extend to all collective sentiments without exception. Why should not even the most feeble sentiment gather enough energy to prevent all dissent? The moral consciousness of the society would be present in its entirety in all the individuals, with a vitality sufficient to prevent all acts offending it-the purely conventional faults as well as the crimes. But a uniformity so universal and absolute is utterly impossible; for the immediate physical milieu in which each one of us is placed, the hereditary antecedents, and the social influences vary from one individual to the next, and consequently diversify consciousnesses. It is impossible for all to be alike, if only because each one has his own organism and that these organisms occupy different areas in space. This is why, even among the lower peoples, where individual originality is very little developed, it nevertheless does exist. Thus, since thee~ cannot be a society in which the individuals do not differ more or less from the col· lective type, it is also inevitable that, among these divergences, there are some with a criminal character. What confers this character upon ·them is not the intrinsic quality of a given act but that definition which the collective conscience lends them. If the collective conscience is stronger, if it has enough authority practically to suppress these divergences, it will also be more sensitive, more exacting; and, reacting against th.e slightest deviations with the energy it otherwise displays only against more considerable infractions, it will attribute to them the same gravity as formerly to crimes. In other words, it will designate them as criminal. Crime is, then, ne.”~sary; it is bound up with the fundamental conditions of all social life and by that very fact it is useful, because these conditions of which it is a part are themselves indispensable to the normal evolution of morality and law. Indeed, it is no longer possible today to dispute the fact that law and morality vary from one social type to the next, nor that they change within the same type if the conditions of life are modified. But, in order that these transformations may be possible, the collective sentiments at the basis of 2. Calumny, insults, slander, fraud, etc. 874 Part Three, Sec. D–Social Structure, Motivation of Deviant, Conforming Behavior morality must not be hostile to change, and consequently must have but moderate energy. If they were too strong, they would no longer be plastic. Every pattern is an obstacle to new patterns, to the extent that the first pattern is inflexible. The better a structure is articulated, the more it offers a healthy resistance to all modification; and this is equally true of functional, as of anatomical, organization. If there were no crimes this condition could not have been fulfilled ; for such a hypothesis presupposes that collective sentiments have ‘arrived at ~ de~ree of int~nsity ~nexampled in history. Nothmg IS good mdefimtely and to an unlimited extent. The authority which the moral conscience enjoys must not be excessive; otherwise no one would dare criticize it, and it would too easily con~e~ !nto an .i~m~table form. To make progress, mdtv1dual ongmallty must be able to express itself. In order thaUhe originality of the idealist whose· dreams transcend his century may find expression, it is necessary that the originality of the criminal, who is below the l~vel of his time, shall also be possible. One does not occur without the other. . Nor is this all. Aside from this indirect utility, 1t happens that crime itself plays a useful role in this evolu.tion. Crime implies not only that the way rematns open to necessary changes but that in certain cases it directly prepares these changes. Where cri-“;le exists, collective sentiments are sufficiently fiex1ble to take on a new form, and crime sometimes helps to determine the form they will take. How many times, indeed, it is only an anticipation of future morality-a step toward what will be! According to Athenian law, Socrates was a criminal, and his condemnation was no more than just. However, h~s crime, namely the independence of his thought, rendered a service not only to humanity but to his country. It served to prepare a new morality and faith which the Athenians needed since the traditions by which they had lived untii then were no longer in harmony with the current ~onditions of life. Nor is the case of Socrates unique; 1t is reproduced periodically in history. It would never have been possible to establish the freedom ?f t~ought we now enjoy if the regulations prohibitmg 1t had not been violated before being solemnly abrogated. At that time, however, the violation was a crime, since it was an offense against sentiments sti.ll v~ry keen in the average conscience. And yet th1s cnme was useful as a prelude to reforms which daily became more necessary. Liberal philosophy had as its precursors the heretics of all kinds who were justly punished by secular authorities during the entire course of the Middle Ages and until the eve of modern times. From this point of view the fundamental facts of criminality present themselves to us in an entirely new light. Contrary to current ideas, the criminal no Jonge_r . seems a totally unsociable being, a sort of paras1t1c element, a strange and unassimilable body, introduced into the midst of society.• On the contrary, he plays a definite role in social life. Crime, for its part, must no longer be conceived as an evil that cannot be too much suppressed. There is no occasion for self-congratulation when the crime rate drops noticeably below the average level, for we may be certain that this apparent progress is associated with some social disorder. Thus, the number of assault cases never falls so low as in times of want.’ With the drop in the crime rate, and as a reaction to it, comes a revision, or the need of a revision in the theory of punishment. If, indeed, crime is a disease, its punishment is its remedy and cannot be otherwise conceived; thus, all the discussions it arouses bear on the point of determining what the punishment must be in order to fulfil this cole of remedy. If crime is not pathological at aU, the object of punishment cannot be to cure it, and its true function must be sought elsewhere. It is far from the truth, then, that the rules previously stated have no other justification than to satisfy an urge for logical formalism of little practical value, since, on the contrary, according as they are or are not applied, the most essential social facts are entirely changed in character. It the foregoing example is particularly convincingand this was our hope in dwelling upon it-there are likewise many others which might have been cited with equal profit. There is no society where the rule does not exist that the punishment must be proportional to the offense; yet, for the Italian school, this principle is but an invention of jurists, without adequate basis. For these criminologists the entire penal system, as it has functioned until the present day among all known peoples, is a phenomenon contrary to nature. We have already seen that, for M. Garofalo, the criminality peculiar to lower societies is not at 3. We have ourselves committed the error of speaking thus of the criminal, because of a failure to apply our rule (Division du travail social, pp. 395-96). 4. Although crime is a fact cf normal sociology, it does not follow th at we must not abhor it. Pain itself has nothing desirable about it; the individual dislikes it as society does crime, and yet it is a function of normal physiology. Not only is it necessarily derived from the very constitution of every living organism, but it plays a useful role in life for which reason it cannot be replaced. It would, then, ~ a singular distort ion of our thought to present it as an apology for crime. We would not even think of protesting against such an interpretation, did we not know to what accusations and misunderstandings one exposes oneself when one undertakes to study moral facts objectively and to speak of them in a different language from that of the layman. Emile Durkheim: On the Normality of Crime all natural. For socialists it is the capitafist system, in spite of its wide diffusion, which constitutes a deviation from the normal state, produced, as it was, by violence and fraud. Spencer, on the contrary, maintains that our administrative centrali· 7.ation and the extension of governmental powers are the radical vices of our societies, although both proceed most regularly and generally as we advance in history. We do not believe that scholars have ever systematically endeavored to distinguish the normal or abnormal character of social phenomena from their degree of generality. It is always with a great array of dialectics that these questions are partly resolved. Once we have eliminated this criterion, however, we are not only exposed to confusions and partial errors, such as those just pointed out, but science is rendered all but impossible. Its immediate object is the study of the normal type. If, however, the most widely diffused facts can be pathological, it is possible that the normal types never existed in actuality; and if that is the case, why study the facts? Such study can only confirm our prejudices and fix us in our errors. If punishment and the responsibility for crime are only the products of ignorance and barbarism why strive to know them in order to derive the normal forms from them? By such arguments the mind is diverted from a · reality in which we have lost interest, and falls back on itself in order to seek within itself the materials necessary to reconstruct its wo.rld. In order that sociology may treat facts as things, the sociologist must feel the necessity of studying them exclusively. The principle object of all sciences of life, whether individual or social, is to define and explain the normal state and to distinguish it from its opposite. If, however, normality is not given in the things themselves-if it is, on the contrary, a character we may or may not impute to them-this solid footing is lost. The mind is then complacent in the face of a reality which has little to teach it; it is no longer restrained by the matter which it is analyz- 875 ing, since it is the mind, in some manner or other, that determines the matter. The various principles we have established up to the present are, then, closely interconnected. In order that sociology may be a true science of things, the generality of phenomena must be taken as the criterion of their normality. Our method has, moreover, the advantage of regulating action at the same time as thought. If the social values are not subjects of observation but can and must be determined by a sort of mental calculus, no limit, so to speak, clm be set for the free inventions of the imagination in search of the best. For how may -we assign to perfection a limit? It escapes all limitation, by definition. The goal of humanity recedes into infinity, discouraging some by its very remoteness and arousing others who, in order to draw a little nearer to it, quicken the pace and plunge into revolutions. This practical dilemma may be escaped if the desirable is defined in the same way as in health and normality and if health is something that is defined as inherent in things. For then the object of our efforts is both given and defined at the same time. It is no longer a matter of pursuing desperately an objective that retreats as one advances, but of wo …


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