Durkheim on law and morality: The disintegration thesis

Abstract

A celebrated and much-discussed article by the distinguished English legal philosopher H.L.A. Hart entitled ‘Social Solidarity and the Enforcement of Morality’ (1967) presents a radically simplified account – a caricature, so to speak – of Émile Durkheim’s views on law and morality. Hart called this account ‘the disintegration thesis’ and identified the then eminent English judge, Lord Devlin, and Durkheim as proponents of this thesis. We here seek to set out the disintegration thesis as formulated by Hart and also his helpful suggestions for rendering it into a set of empirical claims. We dispute his attribution of this thesis to Durkheim and present an alternative account of Durkheim’s views about law and its relation to morality. The critique of Hart’s characterization of Durkheim helps to identify what is distinctive about Durkheim’s views and to explore various questions raised by Durkheim’s writings concerning the legal regulation of morality. We conclude by suggesting ways in which Durkheim’s answer is particularly relevant to our time.

The individual and society in Durkheim

“…One is the reconstruction of Durkheim as an action theorist, for whom social reality is an emergent property of collective practices (Rawls, 1996(Rawls, , 2001(Rawls, , 2003(Rawls, , 2012. The other is the reclaiming of Durkheim's theory of 'moral individualism' as an antidote to Foucauldian cynicism and a restatement of the unfinished project of liberal-communitarian humanism (Cladis, 1992a(Cladis, , 1992bJoas, 2008Joas, , 2013Callegaro, 2012;Lukes and Prabhat, 2012;Hodgkiss, 2013). While the former arouses some interesting epistemological questions, the latter carries a more obvious ethical attraction, claiming as it does to have found a reassuring harmony between the belief in human dignity and the highly differentiated yet interdependent character of global modernity.…”

Prevalence and Correlates of Unstable Housing Among US Children

“…In particular, “redlining” made mortgages and homeownership less accessible for people in racial and ethnic minority groups, especially Black households, while also impacting neighborhood infrastructure. Although the Fair Housing Act officially banned redlining in 1968, the impact is ongoing with historically redlined neighborhoods receiving less investment, discriminatory zoning laws, and poor access to homeownership, capital, educational and career opportunities, and political power . These and other factors may have lasting current-day impacts on residents’ ability to maintain stable housing as well as their short- and long-term health and well-being, and limit opportunities for economic mobility to break intergenerational cycles of poverty .…”

Durkheimowska interpretacja moralizmu prawa według Jonathana Haidta

“…Hart (1967). Krytyczna analiza interpretacji Durkheima przez Harta zaprezentowana została w Lukes, Prabhat (2012). rowana nie do jednostek, lecz do podmiotów takich jak organy państwa, instytucje czy społeczeństwa.…”