Emile Durkheim: Law in a Moral Domain (review)

Émile Durkheim: Law in a Moral Domain. By Roger Cotterrell. Stanford University Press, 1999. 276 pp. Cloth, $59.95; paper, $19.95.

Roger Cotterrell has been publishing studies of the politics and sociology of law for some twenty years. His is a very British form of sociology, exegetical, reflective, and developed largely for pedagogic purposes. It is scholarship turned on itself in a history of ideas that explores the origins, evolution, themes, and contradictions of the thoughts of great men (and, very occasionally, women). And it is part of a practice whereby undergraduates in Britain and elsewhere are ceremonially introduced in their first or second year to what Jason Ditton once called "some dead Victorian gentlemen," chief amongst whom are the trinity of Marx, Weber, and Durkheim.

Émile Durkheim: Law in a Moral Domain is a fine example of such exegesis. It is learned, lucid, and tellingly written, with none of the opacity or clumsiness that can so mar sociological theorizing. It is evenhanded in its judgements. Although he is clearly an admirer of Durkheim and Durkheim's project, Cotterrell concedes and considers gaps and inconsistencies at length, never merely scoring points or taking the discovery of a difficulty to be fatal, but wondering how it arose and what its significance might be. We are reminded, for instance, that Durkheim was no lawyer and was naive in his assumption that the moral condition of society could somehow be computed by comparing the number of retributive laws with the number of restitutive laws; that he lacked curiosity about the manner in which legislatures, agencies, and tribunals work; and that, in his arguments about punishment, he neglected the politically repressive role of the state and the unevenness of social reactions to deviance.

Durkheim has been much pored over in the past but, Cotterrell claims, his legal writing has been largely overlooked for several reasons: because the sociology of law is itself a somewhat marginal pursuit, Durkheim offered no systematic exposition of his ideas, and his observations are scattered, sometimes to be found only in relatively obscure places. Yet it is evident that Durkheim attached a pivotal importance to law as a social fact and collective representation that lends order and limits to the otherwise infinite aspirations of individuals and the potential unruliness of society. He approached law as an unabashed moralist who sought urgently to understand government and the rights and duties of citizenship, the moral foundations of community and the place of regulation in the historical development of specific societies. Law was to be treated as an index and emanation of social solidarity that was mediated by the division of labor rather than by people's beliefs and consciousness, and individuals were taken initially to be little more than its carriers and recipients. In time, however, he came to offer a less alienated interpretation. The state and its laws were to be seen as the regulator and representative of society's central values, its brain as it were, although Durkheim offered no description of how its thinking was conducted in situ by officials and politicians. In time, too, and in the face of the internal divisions of French society, Durkheim came somewhat optimistically and casuistically to assert that a disunited society could and would be overcome by an emerging cult of the individual that was not egoistical but bent sympathetically towards humanity in general and informed by a new, companion conception of irreducible human rights.

It is the conclusion of the book that, although Durkheim may not have concerned himself with the questions that now occupy sociolegal studies, continuing interest in his work is never the less justified by the importance and originality of his effort to moralize laws analyzed sociologically. Cotterrell shows how that moralization was accomplished. He anchors the ideas of Durkheim and the Durkheimians in their intellectual, political, and social environment at the turn of the nineteenth century, and reports how they were then interpreted and re...