Freie Universitat - International Summer and Winter University

Society, politic and law in a comparative perspective

Class protocol
Presented by: Nicols Serrato Uribe

In the present text, I will intend to gather the main concepts, discussions, questions and
opinions that surged during the class of friday 9th of january. Specially, I will emphasize
on the view that mile Durkheim, the french sociologist, has on the relationship between
law and morality, as it was one of the most important parts of the work that we developed
on the course of the class. To do so, I will divide the present text in three main sections:
first, I will summarize some of the main characteristics of Durkheims thought; second, I
will present the discussion we had surrounding his statement on constitutional law; and
finally, I will mention the debate on the creation of deviance and its usefulness for
creating laws.
I. Some generalities on Durkheims thought
mile Durkheim has been called one of the founders of the discipline of sociology, that
means that, even when his thought has been highly criticized, can provide us an important
framework on sociology of law, as he itself studied law. Being part of functionalist
school, he wrote his doctoral thesis, The division of labor, that is nowadays his most
famous book, in which he presents an evolutionary theory of society, from simple one,
based on what he calls mechanical solidarity, to a more complex, and organic one.
Society is a moral system, and from law is it possible to find out the type of society, as
each kind of produces a different kind of law, for instance, in simpler societies where
there is not a high degree of specialization as everyone can do pretty much any work, you

may find a repressive kind of law, as it happens with criminal law. Thys type of law tends
to relay mostly on societal moral beliefs, therefore when they are broken, it is likely to
produce moral condemnation, as indignation. In contrast, in a complex, individualistic
society with labor division, laws tend to be of a restitutive type, that means that law
enforcement is designed to maintain some sort of equality or balance in society with
compensatory measures, as it happens with conduct code. Restitution, establishing an
equality of relationship, a balance in the society, characterized by compensatory
measures. This type of law do not tends to produce generalized moral condemnation as it
happens in simpler societies. In each kind of societal structure are different levels of
knowledge and understanding of laws, in mechanical societies are usually high rates of
knowledge of penal and criminal law by all the members of it, in an opposite way,
knowledge of rules and laws in organical societies tend to be restricted to a specific
sector.
II. The role of constitutional law in the US
But in which type of group can we classify constitutional law? According to Durkheims
thought, constitutions are part of a specialized society, so it is possible to affirm that its
part of an organic society. However, when looking at normative attitudes toward
constitutional law in the US is possible to refute that hypothesis. As studied by Lonn
Lanza-Kaduze (1979) peoples attitudes towards constitutions tend to be the kind of you
would expect in an non-organic society. The class discussed about legal culture of the
USA, that has a short constitution, different from codes of organic societies. It is also
noticed how in democracies people tend to be attached to their constitutions and the
values they reflect, different from Durkheims perspective on constitutionalism.

As primitive societies are attached by mechanical solidarity, people tend to be connected

other by moral values. In contrast, restitution is easier for separate societies. However, in
the US, the breaking of constitutional mandates generates strong moral condemnation, as
it is expected to happen in primitive societies (Trevio, 1996: p.255). The argument is
strengthed by the fact that american people tend to bring more their cases to court, and
having an higher litigation rate, and that does not seem to fit into Durkheims scheme In
other countries like Brazil, in formal terms, the system is intended to enforce restitutive
justice, but in practice, works in a strong punitive way. In South Korea law enforcement
is encouraged to star a re-education and re-socialization processes..
III. Deviance and its role on creation of law
On Durkheims theory, cultures not only occupy an spatial territory, but also a moral one.
In that sense, the emerge of deviance appears to be functional or even necessary for
society, as it permits to create and strengthen values in their moral territory(Trevio,
1996: p.257). The foreseen is done as it is useful to create boundaries of acceptable
actions and manners.
The question raised in the class was if it seems possible to imagine a society without
deviance. People tend to think it is not possible. Functionalist theories state that it is not
only helpful but necessary, otherwise it would render impossible to create moral
boundaries, and even law, as the last is the representation of the first. Without deviants
society may not even survive, it is interesting to see how this theory may be helpful to
understand our time. For instance, it is useful to understand the case of honor murder
discussed in past classes, as it is a way for ensuring the bond between the community of

expatriates from Turkey, to clarify their identity and to promote the survival of their
customs, as they are in a different environment as germany.
It is possible for us thinking on other functional deviance dispositives can we think of for
drawing boundaries. Cultural events, like carnaval in Rio may work as a method for
reassuring an national and cultural identity, and even an ideology, that is, turning the
social order upside down. It can be seen in education as well, practies like raising your
hand in class, strenght the boundaries of correct behavior in specific places. Gay marriage
regulations are a good example as well, as something seen by some people as a
misconduct and an ofense to traditional beliefs on mariage is trying to be legalized by
many countries. Ethical codes of universities concerning plagiarism and cheating, as in
another civil institutions like the military work as well. Medical codes like brazilian one,
however,have the problem of low difussion, as knowledge of the law tends to be really
low, meaning that people know their rights concerning medical care.
It is interesting how the same scheme can be applied not only for social or moral
boundaries, but also the state, as it happens with the so-called witch hunts and political
prosecutions. Bergersen says that boundaries on the state are shaped the same way,
stigmatizing the outsiders to strenghten the current political order. North and South Korea
can show how this occurs, as the permanent threat of the border has been relevant to the
construction of different discourses surrounding the political order of each state.

Bibliografa:
Trevio, J. (1996). Law and Morality, in The Sociology of Law: Classical and

contemporary perspectives. New York: St. Martin's Press.