The Place of Law

An Enduring Concern?

A familiar claim is ‘that Durkheim is well-known but not known well’ (e.g. Stedman Jones 2002, 117). Whether or not this can truly be said of other areas of Durkheim's sociology, it may apply to Durkheim's writings about law. A seeming paradox surrounds them. In many general books on Durkheim's sociology, little if any attention is given to the topic of law. And where attention has been paid, it has often been only to a limited selection of Durkheim's ideas on law. Yet, undoubtedly he saw law as a central topic for sociological studies. In the middle of his career, in 1900, he wrote that, instead of treating sociology generally, ‘apart from necessary excursions into fields adjacent to those we were exploring, we have been concerned only with legal and moral rules, studied in terms of their genesis […] or their functioning’ (Durkheim 1900b, 126). Several of his closest collaborators were equally committed to legal study. One, Célestin Bouglé, wrote that sociology cannot avoid ‘the study of laws and customs’; it ‘must inscribe on the mansion that it seeks to build “that no-one can enter here who is not a jurist” ‘ (1935, 96). This remarkable claim at least suggests how deeply attention to legal phenomena coloured the overall Durkheimian project, at least in important phases of its development.

Indeed, the paradox might disappear if law is, as some commentators have seen it, a concern only in the relatively early phases of Durkheim's career, to be largely superseded by an overwhelming interest in the social significance of religion, which increasingly dominated his work after, by his own admission, he had radically revised his view of this significance around 1896. Does Durkheim's mature thought eventually leave behind his early concern for law? This chapter will deny that. But it is true that law is more obviously prominent in his early works than in his later ones and that discussions of legal themes and ideas in his later career are more diffuse and harder to synthesise.

The early concern with law is very clear.