Good Essay About Criminal Law And Sociological Penal Theory Discussion From The Viewpoint OF The Durkheiman Tradition.
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Jurisprudence efforts functioning within the bureaucratic organizations of law and order, for the purposes of meting out punishment or controlling crime, generally have balancing values. Traditionally and historically, in the Westernized worldview the legal system overall dealt with morality, ethics, development of different theories of philosophy, penal codes, and politics. In terms of criminal law and penal theory, or punishment, this essay examines the influence of French theorist and sociologist Émile Durkheim. The application of attempting to gather an understanding of how Durkheim’s philosophy can apply to punishment, as a consequence of crime, will hopefully raise new insights in consideration of the strengths and weaknesses of his suppositions. As reported by the New World Encyclopedia (2015) Durkheim descended from a long-held tradition of Jewish thought and background, demonstrating an impressive scholarly brilliance, which often clashed with his professors’ idea of what was important to emphasize. Therefore, despite the fact that he graduated at his class bottom, he eventually advanced into teaching sociology and finally became the department “chair of education at the Sorbonne” (New World Encyclopedia, 2015). Durkheim’s understanding of crime, criminology, law, and punishment revolved around notions of sociological concepts.
Perhaps as an outcrop of his upbringing in France as an intellectual, amid the influence of Jewish familial sensibilities, Durkheim grew to comprehend the world around him in a universal way that looked at society at large. One source views Durkheim’s life experience as one being “heavily influenced by the Enlightenment thinkers Montesquieu and Rousseau and their ideas on the holistic view of society and the general will, respectively” (University of Florida, The Durkheim Perspective, 2015). Durkheim would begin to connect the idea of social solidarity to the various kinds of legal-systems and penal code sanctions. For example, Durkheim would not separate concepts of the law from sociological morality, and placed the contractual evolution of these two aspects closely fitted together. The same aforementioned source would deem that if Durkheim were alive today to comment upon what occurred in the United States concerning the civil rights movement of the 1960s, he would have viewed it as a successful legislative outcome of a moral nature “from the belief that it is wrong to favor one race over another” ((University of Florida, The Durkheim Perspective, 2015). It was along these lines of belief that Durkheim’s influence upon criminal, notions of punishment and the penal code theory would develop.
The two main writings to place Durkheim’s groundbreaking sociological concepts were ‘The Division of Labor in Society’ and ‘The Rules of Sociological Method.’ He basically believed that it was the social factors which held a society together, and this cohesiveness rightfully linked to other correlated fields such as philosophy, psychology, or similar disciplines which helped to identify and explain the manner in which human behavior affected communities. In the realm of law therefore, Émile Durkheim naturally integrated legal studies of criminal behavior with morality infractions. For instance one scholar posits that Durkheim’s idea of law in connection with social values, was such that “If social organization depends on the normative structure of moral and juridical rules, one must also consider the conditions under which these are violated. Criminality, he insisted, is negative morality and should be studied conjointly with positive morality” (Tyrakian, 1964, p. 261). In other words all the concept of law, punishment, and the creation and implementation of penal code theory would rest upon notions of ethical behavior and a sense of obligation to understand right from wrong, within a collective system of legal and society in general.
Perhaps it is for this type of reasoning that Tyrakian (1964) argues that although penal theory should echo invocations reminiscent of efforts toward effective rehabilitation, they merely serve as tools to function as retribution – from the viewpoint of Durkheiman traditionally exchanged ideology. The author Tyrakian (1964) further points out that even given the aim of achieving retribution, the legal system protocol of punishment in today’s modern world has not met with much success. Before one interprets Durkheim’s notion of morality-driven sociological approaches in crime and punishment, to wrongfully assume the concept is all based upon conscience – in terms of ethical decisions – one writer clarifies the situation. One astute observation claims that “Nor does the sociological approach deny that penal institutions are, to a great extent, oriented toward crime control and shaped by that orientation. What it does deny, however, is that punishment and penal forms can be wholly understood in terms of this declared objective simply because no social artifact can ever be explained in this way” (Garland, 1991, p. 120). In other words, herein may lay an example of the weaknesses in the Durkheiman Tradition of punishment application. Sociological aspects are sundry and complex, and Durkheim obvious lived in a very different time and space compared to the complexity of the multi-ethnic, globally driven economy and changes of today. Another weakness in the Durkheiman Tradition may be spoken of as a view of society that centered “upon his conception of the moral order and its vital role in social life” (Garland, 1993, p. 25). This possible weakness, then, brings to the forefront of thought the following inquiry: What happens when an entire society loses sight of anything moral, and become self-serving to its top-tier administrators and the interests of the wealthiest corporations? At the same time, Durkheim theory as applicable to punishment and the penal code apparatus and theory formulated strengths as well.
At this juncture of the essay, it is important to keep in mind that the overall Western post-modern society in legal system terms, fairly operate upon a similar continuum and protocol. As we advance in the conversation, it can be agreed upon that Durkheim as arguably by one article (Irish Criminology, 2008) posits an idea of crime and punishment being linked together and embedded within the collective social conscience of a society, and from a certain point of view the “crime” is an offense to that collective. Some would argue that this general viewpoint of Durkheim’s is flawed or simply too simplistic, in the first place. The article continues to assess that Durkheim would contend that a “type of natural crime would total the offenses that are contrary to universal sentiments and would be, on that account, the ‘invariable part of the moral sense and that alone’. Such a method, he held is faulty on a number of grounds. If, for example, we tried to collate them with a list of acts universally punished, we would not be satisfied, because the latter would be excessive whereas the former, being a collection only common to all societies, would be minimal” (Irish Criminology, 2008). If the preceding is indeed true, it only reinforces further questions and suppositions about: (a) the nature of society, (b) the moral conscience of such a society as a collective, and (c) whether or not such a society’s members would ever be satisfied with whatever punishment penal codes are established. See the problem?
In conclusion, Durkheim holds strengths tied to the notion that society will embrace or recognize a general strategy of fairness, ethics, and morality – which may have been more prominent at the time in which he lived. Everyone knows that the modern world is a very different place than when Durkheim lived, despite his insightful philosophical and sociologically driven contributions to the law, and concepts thereof. One author makes the accurate observation that Durkheim’s theory “taken as a whole, his notion that crime is linked to a breakdown in social controls has been a major inspiration” in the twentieth century (McShane, 1997, p. 96). But today is very, fundamentally different. It seems as though ‘right’ and ‘wrong’ have been turned inside out, upside-down, and turned on their heads. No standardized proposals of morality or behavior codes of moral measures seem to exist or apply evenly to all people, in terms of jurisprudence application to everyone equally. Such an environment cradling a legal system can only serve to eventually infect itself with the poison it originally sought to cure.
DiCristina, B 2000, ‘Compassion can be cruel: Durkheim on sympathy and punishment,’
Justice Quarterly, 17, 3, pp. 485-517, E-Journals, EBSCOhost, viewed January 8 2015.
Garland, D. (1993) Punishment and Modern Society: A Study in Social Theory (Studies in Crime
And Justice). Paperback Ed. Chicago and Oxford: Oxford University Press.
Garland, D 1991, Sociological Perspectives on Punishment. Crime and Justice. [Online] JStor
Database 14. P. 115-165. Available from: file:///C:/Users/Use%20this%20one/Desktop/8%20David%20Garland.pdf [Accessed: 8 January
Irish Criminology. (2008) History/Anthropology – Emile Durkheim On Crime and Punishment
[Online] Available from: http://irishcriminology.com/02a-Emile-Durkheim-On-Crime-And-Punishment.html [Accessed: 8 January 2015].
McShane, M. (ed.) (1997) An Introduction to Criminological Theory (Criminal Justice:
Contemporary Literature in Theory and Practice). 2nd Ed. New York: Routledge.
New World Encyclopedia. (2015) Emile Durkheim, [Online] Available from: http://www.newworldencyclopedia.org/entry/Emile_Durkheim [Accessed: 8 January 2015].
Tyrakian, EA 1964, ‘Durkheim’s Two Laws of Penal Evolution,’ Journal for the Scientific
Study of Religion, 3, 2, pp. 261-266, SocINDEX with Full Text, EBSCOhost, viewed 8
http://users.clas.ufl.edu/llkkll/law&soc/trevino.durkheim.pdf [Accessed: 8 January 2015].
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