INTRODUCTION
The French sociologist, Emile Durkheim, was primarily concerned with the order, consensus, social solidarity, social morality and systems of religion (Young, 1962). Social solidarity is an inherently broad concept, and may be identified in varying structures which exist across different societies (Czarnota & Brown, 1994). He came up with a theory that suggests that social structures have a strong influence on action. There are two types of Durkheim believes there two types of solidarity in societies, namely mechanical solidarity and organic solidarity (Young, 1962). Both of these solidarities have different laws that work for their societies. Repressive law is to mechanical solidarity type of social organization and restitutive law is to the organic solidarity type of social organization (Young, 1962). Repressive law is a legal system that focuses on the punishment that a criminal will receive, rather than on rehabilitation in the hope of keeping him from committing crime again (Repression, 2016). Repressive law and restitutive law are classified according to the kinds of sanctions attached to them (Barnes, 1966).
Repressive law is to mechanical solidarity
Durkheim used the term repressive law to denote the form of law that corresponds to simple societies characterized by mechanical solidarity which is for those of a primitive or ancient society (Sutton, 2001). This means that the society is backward and uncivilized even. Repressive law is also known as penal law. Durkheim mentioned that a society that has law that with little division of labour is repressive. Mechanical solidarity is a social organization that has members of society with similar norms, values and beliefs. Also it is regulated by customs. Repressive law consists of punishment, which Durkheim describes as suffering or at least a loss inflicted on the agent (Sutton, 2001).
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Repressive law is not separated from religion. The members of society agree on what they consider wrong or deviant in society and criminalise such acts. the obvious examples of crimes that punishable in the societies of mechanical solidarity include murder, robbery, rape and sexual assault. These crimes are seen as morally wrong and a severe punishment is the logical solution for these social ills. The offender has to be punished severely to suffer for the pain that has been caused by the crime he or she committed. An eye for an eye and a tooth for a tooth. Repressive law predominates under mechanical solidarity because every infraction is a direct assault to the collective conscience and a crime is not an offence against an individual (Sutton, 2001). Botswana is one of the many countries in Africa that has repressive law and is of mechanical social solidarity.
Mechanical solidarity is also strongly related to a collective consciousness, a social solidarity exists which arises because a certain number of states of consciousness are common to all members of the same society and the share it has in the general integration of society plainly depends upon the extent, whether great or small, of social life included in the common consciousness and regulated by it (Schiermer, 2014). The stronger the collective consciousness, the more there is space for mechanical solidarity and less for individual autonomy. Mechanical solidarity stands counter to any attempt at building an individual personality (Schiermer, 2014). Mechanical solidarity may be compared to the cohesion which unites the elements of an organic body (Young, 1962). Social molecules, as well as the molecules of inorganic bodies, must act together in order to maintain cohesion and individuality must become a secondary factor in societies with mechanical solidarity (Young, 1962). The individuals who together make up a society are thought of as each having a conscience or consciousness, what we might call a value system, and this conscience can be analysed into its parts (Barnes, 1966).
Repressive law is criminal law, essentially created to prohibit ‘an act contrary to strong and defined states of the common conscience (Czarnota & Brown, 1994). Criminal law is dominant under mechanical solidarity because crime is an assault on shared values (Sutton, 2001). Should anyone violate any of those laws, the members of that society may feel like they were personally wronged, and want to see the criminal apprehended and punished quickly (Repression, 2016). With repressive law the consequences of committing a crime are severe, harsh and/or extreme for the offending party. Repressive law focuses more on the offender and less on the victim. This type of law deals with the offender because the society believes that the crime committed affects all members of society and to maintain order the offender has to be punished. The aim is to punish the offender as a way of deterring the offender from committing any more crime and to discourage any potential offenders.
Another reason for a harsh punishment by those societies of mechanical solidarity is to inflict some form of pain on the offender as he or she did to the victim and society. It is more or less like retributive law. The repressive sanctions include making demands on offenders’ fortune, on their honour, on their life, on their right to liberty and/or deprive them of the things they enjoy (Sutton, 2001). Imprisonment is usually the preferred form of punishment which involves taking away the right to liberty.
Restitutive law is to organic solidarity
In this modern time, societies are gradually moving from mechanical solidarity to organic solidarity. Durkheim argues in the first book of The Division of Labour in Society that societies have developed from a form of organisation based upon mechanical solidarity to that, characteristic particularly of industrialised societies, based on organic solidarity (Clarke, 1976). The law of restitution is the law of gains-based recovery (Dictionary, 2019). This type of law predominates under organic solidarity and it is found in modern and complex societies. It focuses on the victim and aims at restoring what the victim lost. Also aims at restoring broken relationships, to reconcile the relationship of the victim and offender. Restitutive law is closely linked to organic solidarity, for its purpose is to regulate how individuals may act differently in a society (Czarnota & Brown, 1994). The United States of America is one of the countries that has restitutive law in certain states.
Organic solidarity arises when the members or sub-units of a society differ from one another but depend on one another and are controlled or constrained or regulated by one another or by some single specialised sub-unit (Barnes, 1966). Organic solidarity is produced by the division of labour in society, so that each member has his own specific activity which makes some contribution to the lives of other member (Barnes, 1966). Due to the division of labour, restitutive law recognises separation of individual’s conscience (Czarnota & Brown, 1994). Restitutive law recognises individuals in a society while also strengthening the overall fabric of society through social regulation of interdependent relations (Czarnota & Brown, 1994). Durkheim mentions how different roles are needed in society and the need for codependence among members of society which are of organic solidarity. Emile Durkheim distinguished that restitutive law performs different functions also known as functionalism.
Organic solidarity which are of modern societies, separate law from religion and create all kinds of differentiated legal domains such as civil and criminal courts, administrative tribunals, probate courts, arbitration panels and family courts (Sutton, 2001). This shows that restitutive law deals with matters of individuals in particular situations rather than offences against common and deeply felt sentiments (Sutton, 2001). Restitutive law is concerned with the social binding of individual behavior and encompasses areas such as civil law, commercial law, and administrative law, and Durkheim sees contract not as a mere agreement between two individuals, but as the harmonious coming together of diffuse social function and if it [the contract] conflicts with social purpose then it is necessary, while depriving it of all social value, to strip it of all authority as well (Czarnota & Brown, 1994). The legal domains that make up restitutive law focus on show that his type of law is to help the victim get compensation for their loss and heal from the negative effect(s) of the crime committed against him or her.
The sanctions of the restitutive law are different from those of repressive law. Resitutive sanctions include, the return of things as they were, in the reestablishment of troubled relations to their normal state and here Durkheim is referring to civil law (Sutton, 2001). The victim gets to voice their opinion on how he or she would like to be compensated. The offender deals with the victim mostly and not the entire society. The society is often allowed to be involved by it usually the family members of both parties.
Restitutive laws are further divided into two types, those dealing with real rights, i.e. rights over things, as mentioned above, and those dealing with interpersonal right (Barnes, 1966). A negative function of restitutive law is it only seeks to restore the loss encountered by the victim. For example, if a person injures someone with their automobile, the victim may sue to recover damages so as to repair their automobile, to pay for medical expense and pay for the pain, suffering and emotional distress (Sutton, 2001). The law of negligence does not aim to make aggrieved strangers to make relations but to compensate the injured party for their loss (Sutton, 2001). There is also positive resitutive law which draws people together into enduring relationships and therefore strengthens social solidarity (Sutton, 2001). In this category, Durkheim included domestic, contract, constitutional, procedural, administrative and commercial law (Sutton, 2001). An example would be the constitutional law which encourages individuals to be active, politically by defining and defending the rights of individuals to participate in government (Sutton, 2001).
The main difference between repressive law and restitutive law is also what makes easy to identify mechanical and organic solidarity type of social organization. Mechanical solidarity which has repressive law deals with is to apprehend and punish the offender for the crime that was committed to maintain the moral standards of the society and change the behavior of the offender. As for organic solidarity, it is about restitution, aims at restoring what has been lost and broken relations between either friends or family, and the sanction is usually to restore or repay or compensate the victim. Repressive law deals with offenders and restitutive law helps victims. With restitutive law, imprisonment could be a possible sanction for the guilty party.
CONCLUSION
Emile Durkheim came up with the idea that there are two types of social solidarity which mechanical solidarity for the more primitive or ancient society and organic solidarity for the more modern and complex society. Repressive law or penal law is found in a society that has mechanical solidarity and restitutive law is for organic solidarity type of social organization. These societies that have each of these types of laws and social solidarities have distinctive features but the main one is that repressive law focuses on offenders and distributes severe punishment for the crimes committed because it defies the morality of the society, and societal norms, values and beliefs. In contrast, restitutive law focuses on the victims of crime and how they can be compensated for the loss and how broken relations can be restored among the offender and victim. It is safe to say that repressive law is mostly for revenge and restitutive law is for forgiveness.
Bibliography
- Barnes, J. A. (1966). Durkheim's Division of Labour in Society. Man, New Series, Vol. 1, No. 2, 158-175.
- Clarke, M. (1976). Durkheim's Sociology of Law. British Journal of Law and Society, Vol. 3, No. 2, 246-255.
- Czarnota, A., & Brown. (1994). Law and Social Theory.
- Dictionary. (2019). Retrieved November 18, 2019, from Educalingo: https://educalingo.com/en/dic-en/restitutive
- Repression. (2016, September 30). Retrieved November 18, 2019, from Legal Dictionary: https://legaldictionary.net/repression/
- Schiermer, B. (2014). Durkheim's Concept of Mechanical Solidarity – Where Did It Go? Durkheimian Studies, New Series, Vol. 20, 64-88.
- Sutton, J. (2001). Law/Society: Origins, Interactions, and Change . Thousand Oaks : Pine Forge Press.
- Young, P. C. (1962). The Sociology of Emile Durkheim . Honors Theses Ppaer 291.
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