In sociological terminology, Durkheim was a consensus theorist, or a structural functionalist sociologist. Durkheim contributed a methodology for studying changes in social institutions and the larger social order. Influenced by Auguste Comte, Durkheim used a positivist approach —a scientific, rational approach to the social world—and was interested in establishing causality, in showing that one variable causes another to change. For instance, as societies grow in size, they also grow in complexity. Durkheim saw this as a social fact —an underlying pattern of social organization and moral beliefs that shapes our expectations of one another. Social facts are also reproduced through social institutions such as government, courts, and education. Durkheim believed the law performs several vital functions in society and as societies increase in complexity, law becomes more important, more pervasive, and increasingly differentiated and specialized.
Durkheim outlined his ideas about society and law in his book, The Division of Labor in Society ([1893] 1984). He viewed law as a measure of the type of solidarity found in society. Solidarity for Durkheim meant the persistent and ongoing expectations that people establish with one another that allow them to take their social world for granted. It is rooted in repetitive patterns of association in families, workplaces, and in the marketplace, as in a small, traditional village.
Repressive law in traditional society revolves around punishing the criminal for the crime but also for the harm caused to the social order—the collective conscience of society (Sutton 2001). Restitutive law corresponds to modern, industrialized societies. Durkheim viewed restitutive law as restorative, as bringing back social order and group cohesion after the upset of the crime (Sutton 2001).
Durkheim’s distinction between mechanical and organic solidarity and repressive and restitutive law is not a strict dichotomy. Even today, in our modern, complex society, we seem to move more and more toward repressive forms of law and punishment. We imprison over two million people, often without any significant chance at rehabilitation; we treat juveniles as adults; we get tougher and tougher on crime. Many states still execute offenders. In other words, as with the earlier work of Sir Henry Sumner Maine, this seemingly clear, evolutionary progression from repressive to restitutive legal systems is perhaps not so clear and stage-like. Laura Nader’s anthropological work on law in a traditional Zapotec village illustrates that restitutive law can be found in traditional communities and that repressive forms of law can be found in modern societies, such as our own punitive system (Nader 1964). As Durkheim himself wrote, “ … the essential elements of punishments are the same as they were in primitive societies. Punishment has remained, at least in part, a work of vengeance” (Thompson 1995:78).
In the United States, the juvenile justice system began over 100 years ago as a way to separate juvenile offenders from the adult population. The goal was to treat young offenders as capable of rehabilitation. Because of their youth, they were thought to be more amenable to rehabilitation and change. However, in the latter part of the twentieth century and into the twenty-first century, our societal approach has grown more repressive, treating children as young as 13, 14, and 15 as adults in the adult court systems and adult prisons (Ecenbarger 2012). Recently, we have seen a bit of a sea change back to the idea that young offenders must be treated differently. For example, several states have overturned life sentences without parole for juvenile offenders. Therefore, Durkheim’s idea that as societies evolve and become more advanced they also grow more rehabilitative and reform-minded. This does not prove to be the case in many aspects of the U.S. criminal and juvenile justice systems.