Repressive and Restitutive Law

Durkheim was more interested in the forms of solidarity, which are nonmaterial social facts, rather than the division of labor and dynamic density, which are material social facts of life. Durkheim found it difficult to directly examine nonmaterial social facts, particularly something as ubiquitous as a collective conscience. To investigate nonmaterial social facts scientifically, the sociologist should look at material social facts that reflect the nature of and changes in nonmaterial social facts. Durkheim opted to examine the distinctions between the law in societies with mechanical solidarity and the law in cultures with organic solidarity in The Division of Labor in Society.

Repressive law, according to Durkheim, is a hallmark of society with mechanical solidarity. People in this kind of society tend to be quite similar and have strong moral convictions; thus, any transgression of their shared values is likely to impact most people. A wrongdoer will likely face harsh punishment for any activity that violates the collective moral system since everyone feels the offense and strongly believes in common morality. For example, if someone steals, their hands may be amputated. Even slight transgressions of the moral code are likely to result in harsh penalties.

On the other hand, Restitutive Law demands criminals to pay restitution for their misdeeds, which distinguishes a society with organic solidarity. In such civilizations, crimes are more likely to be seen as being done against a specific society or group of people rather than the moral code itself. Since common morality is weak, most individuals do not emotionally respond when the law is broken. Therefore, offenders in organic solidarity are likely to be requested to pay restitution to those hurt by their conduct rather than harshly punished for every violation of common morality. Specific repressive laws, such as the death sentence, still exist in a society with organic solidarity, but restitutive laws prevail, particularly for minor transgressions.

In The Division of Labor, Durkheim maintained, among other things, that moral solidarity has evolved rather than vanished in contemporary society. Humans now have a new kind of solidarity that promotes greater interdependence, deeper, less competitive relationships, and a new kind of restitution-based law. According to Durkheim, this new type of solidarity is vulnerable to specific social pathologies.