Legal, Social Solidarity

Sociology of Law was greatly influenced by sociological theory and research methods from its birth. The "canonical trio", Marx, Durkheim and Weber did tremendous contributions to the development of sociological theory of modern sociology and other social sciences. These three sociologists not only did sociological research at the macro level of the whole society, but of the various social systems and social phenomena at the micro level. Law as an important social system and common social phenomenon has become a frequent theme discussed in their books. Marx, Durkheim and Weber's study and analysis of the law fully shows the "legal picture" in the sociological perspective. Their explorations and reflections of law have always been the key insights of sociology of law. Therefore, their thoughts should be treated seriously.However, law experts' research of the above-mentioned three legal scholars is not balanced; Marx's and Weber's legal thought have been the focus of the study, but Durkheim's legal thought neglected. The neglect of Durkheim in law experts does not mean that there is no legal theory in Durkheim's Sociology, nor does it mean that Durkheim's legal thought is not important. On the contrary, the legal system and legal theory is the frequent theme of study in the works of Durkheim, and Durkheim's legal thought is as high valuable as his other social theories. It is regrettable that Durkheim never studied the law science seriously, nor wrote specialized legal works. His legal thinking contained in his sociology theories, and he also discussed laws in his sociology works. Therefore we should summarize and summed up his legal views in Durkheim's sociology books when we study in his legal thought. Throughout Durkheim's major works, his reflections on laws are, mainly contained in the first two volumes of "The Division of Labor ", so "the division of labor" is the main text when researching Durkheim's legal thought. This dissertation is to mainly discuss Durkheim's legal arguments, sum up his legal points and evaluate Durkheim's legal ideology within the text of "The Division of Labor". When composing this paper, the author uses methods of text analysis and historical analysis. The author analyses the text of the book to demonstrate Durkheim's three hypotheses of his legal thoughts: Firstly, the law is a imposed social conduct sanctions and is the external index of the form of social solidarity, reflecting the essence of social solidarity. Secondly, the law plays a different social function in the different forms of social solidarity. In the form of mechanical solidarity based on segmental society, the primary function of the law is to maintain the collective conscience of the community; in the form of organic unity based on differentiation of industrial society, the law is the prime function of maintaining cooperative relations with the smooth lease carried out. Third, the evolution of the legal and social changes associated with the historical progress and social factors such as social capacity and community density in the effects of the division of labor, let the primitive society progress to the industrial society. And a corresponding overall shift from a predominantly penal law with 'repressive organized sanctions' to the prevalence of 'civil law, commercial law. procedural law, administrative law and constitution law' with 'pure restitutory sanctions.'But there are some flaws in the legal sociology thoughts of Durkheim. This first manifested in his research methods. Durkheim upheld sociological positivism research methods all his life. However, in "The Division of Labor," his empirical research methods do not stand completely. There are obviously priori constructive "traces" in Durkheim's typology of social, legal typology and when he outlined historical development of society model, his core argument is not empirical information on the experience, but all biology principle and organic analog. Second, his legal theory obviously overlooked the historical dimensions of the development of Western law. Durkheim's evolution of the legal system does not meet the development of Western legal history. He explained the evolution of the law only in the changes of social solidarity, ignoring the internal logic and external realities of the development of Western law. The development pattern of Western legal system is not "from the repressive sanctions and the repressive laws to the restitutory sanctions and the restitutory law" as Durkheim says, but "from the restitutory sanctions and the restitutory law to the repressive sanctions and the repressive laws ". Third, Durkheim completely ignored the state factors as the key status in the analysis of legal phenomena. In Durkheim's analysis process, whether his definitions of the legal characteristics or his summaries of the evolution of law didn't contain the state factor ,so that the legal thoughts of Durkheim lack the analysis of the core issues of sociology, such as the political power ,political authority, political conflicts, bureaucratic group, and the hierarchy system. Finally, the legal concepts of Durkheim are too ambiguous. Durkheim did not distinguish between social norms systems, such as legal norms, ethics and religious norms. And he therefore did not distinguish between legal, moral, religious and other kinds of social controls. The greatest limitation of Durkheim's legal thoughts is that he did not distinguish between legal, moral and religious phenomenon.