Collective Solidarity, Marital Rape, and Jaywalking

This article aims to critically analyze how the law can function in a manner that affects “collective solidarity” in connection to Emile Durkheim’s theory. I shall begin by explaining collective solidarity and connect it to Durkheim’s theory, then provide two contemporary examples (marital rape law in Canada, and the recent (2013) jaywalking crackdown in Vancouver, B.C., Canada) in order to help critically analyze the law in connection to collective solidarity.

Collective solidarity seems to refer to a group of individuals (society) that group together from common responsibilities (“collective”, “solidarity”, n.d.). In George Pavlich’s chapter titled “Durkheim Socializes the Law,” Pavlich applies Emile Durkheim’s theory to the subject of ‘law and society’. Durkheim does not explicitly use the term ‘collective solidarity’ but he does use a similar term, ‘social solidarity’. Social solidarity refers to the cohesion that holds society together (Pavlich, 2011). According to Durkheim, social solidarity is a moral phenomena, therefore it cannot be directly measured, but social solidarity can be measured indirectly through the law (Larsen, 2013).

Durkheim asserts that law functions in a manner that can be empirically measured to represent social solidarity, since the law reaffirms a society’s norms and values (Pavlich, 2011). For instance, in Canada prior to 1983, it was legal for a person to rape their spouse (marital rape), which changed in 1983 (Koshan, 2010). In this example, according to Durkheim’s theory, he would assert that the current ‘collective conscious’ (society’s norms and values) believes rape, even with one’s spouse, is immoral; while, prior to 1983, the collective conscious did not believe that raping one’s spouse was immoral. The point being that society’s norms and values are represented through the law, so in order to understand these norms and values one can measure the laws and functions of the law. By reaffirming these norms and values, Durkheim believes, the law functions in a way that can promote collective solidarity.

I believe there are two main elements for how the law functions in a manner that affects collective solidarity: codification of the law, and discretionary powers derived from the law. The codification of the law refers to the language of the laws; the written laws themselves. This form connects to the marital rape law example, which (since 1983) is written in a manner that promotes collective solidarity (bonding people through common responsibilities): everyone’s desire for safety and well-being, and everyone’s responsibility to not harm others. The latter element, discretionary powers that derive from the law, connects to the persons that impose the law, for example judges, police officers, and border guards all have discretionary powers.

The discretionary powers element is more problematic than the codified element, since the codified element is susceptible to more scrutiny because it is openly available to everyone. In addition the codified laws have more checks and balances in place (e.g. the legislative process and the Canadian Charter of Fundamental Rights and Freedoms) that help ensure laws are written in a fair and just manner. On the other hand, discretionary powers are less susceptible to public scrutiny, and more susceptible to subjectivity; individual judgments and biases. For instance, a judge may favor certain litigating/mitigating factors in a case, or a police officer may stereotype a person (based on class, age, race, gender, etc.). In both cases, these subjective factors can affect a person’s judgment whether to act and how to act in different circumstances.

In the marital rape law example, the law functions in a manner that promoted collective solidarity, however the law does not always function in a positive manner, rather there are instances in which the law functions in a manner that stifles or prevents collective solidarity. An example of the law functioning in a manner that prevents collective solidarity is the recent rise in jaywalking tickets to persons on the downtown eastside of Vancouver, B.C., Canada (DTES). Vancouver police officers have significantly increased fines to persons on the DTES which largely affects persons that most often walk through the area, whom are predominantly persons of low socioeconomic status (Lazaruk, 2013 & Downtown Eastside Ticketing, 2013). The DTES has a high rate of pedestrian connected accidents, which is partly due to a high number of jaywalkers (Lazaruk, 2013 & Downtown Eastside Ticketing, 2013). However, the DTES also has a high number of motor vehicle violations, typically speeders, since few people follow the 30 km/h speed limit. Both acts are enforceable by law, yet the focus has been on jaywalkers. In this example, the discretionary power (Vancouver police officers) is targeting these walkers, while (largely) ignoring drivers in the same area.

In this case, all persons have a common responsibility, public safety, yet one group is being targeted and another ignored. Thus, the law is functioning in a manner that prevents collective solidarity, since the targeted group cannot feel connected to the rest even though both groups have similar responsibilities. From this I believe Durkheim is correct in believing that the law functions in a manner that affects collective solidarity, but as exemplified the effect is not always positive.

Bibliography

Collective. (n.d.). In Merriam-Webster’s online dictionary (11th ed.). Retrieved from www.merriam-webster.com/dictionary/collective.

Downtown Eastside Ticketing By Vancouver Police Slammed in Complaint. (2013, September 17). The Huffington Post. Retrieved from http://www.huffingtonpost.ca/2013/09/17/downtown-eastside-ticketing_n_3941343.html

Koshan, J. (2010). The Legal Treatment of Marital Rape and Women’s Equality: An Analysis of the Canadian Experience. Retrieved October 13, 2013, from theequalityeffect.org/pdfs/maritalrapecanadaexperience.pdf.

Larsen, M. (2013, Fall). Law, Order, and Social Solidarity. [CRIM 3305 class handout]. Surrey, canada: Kwantlen Polytechnic University.

Lazaruk, S. (2013, September 17). Downtown Eastside residents say they are unfairly targeted for  jaywalking, panhandling. Postmedia News. Retrieved from http://www.canada.com/news/Downtown+Eastside+residents+they+unfairly+targeted+jaywalking+panhandling/8925139/story.html

Pavlich, G. (2011). Law & Society Redefined. Toronto, Ontario: Oxford University Press.

Solidarity. (n.d.). In Merriam-Webster’s online dictionary (11th ed.). Retrieved from www.merriam-webster.com/dictionary/solidarity.

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3 Comments

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3 responses to “Collective Solidarity, Marital Rape, and Jaywalking

  1. An opening clarification: Collective solidarity does not refer to a group of individuals. Rather, it refers to those social institutions and processes that allow individuals to form, maintain, and reproduce cohesive groups. Pavlich is essentially using the term as a synonym for social solidarity.

    You offer a great summary of Pavlich’s review of Durkheim.

    In terms of the distinction you draw between the ‘discretionary element’ and ‘codified element’ in law, I would note that there is an important third category in the common law tradition – case law and judicial decisions. This has been the primary focus of legal positivists and many proponents of sociological jurisprudence, precisely because it bridges (albeit incompletely) the gap between the ‘law on the books’ and the ‘law in practice’. This being said, your observation about the importance of understanding discretionary powers is absolutely valid.

    I wonder if you could clarify: How exactly did the exception to the prohibition on rape associated with spousal rape function to promote social solidarity (pre-1983)?

    And if, as you say, “prior to 1983, the collective conscious did not believe that raping one’s spouse was immoral”, why did the law change in 1983? Was there a sudden shift in the collective consciousness?

    Your jaywalking example is compelling, as is your emphasis on the role of discretion. Note that the Canadian Journal of Law and Society dedicated an entire special issue to discretion a few years ago. You may find it to be worth checking out.

    Interesting post!

    – Mike

  2. In response to collective solidarity, that makes more sense, it seemed strange that Pavlich would use a different term than social solidarity, so I tried to cover my bases and define collective solidarity separately as I could not find a definition of the term. The approach was definitely not ideal but was the only way I felt that I could connect the word to social solidarity in a logical manner.
    As per the incomplete categories, you are absolutely correct that I missed an important element. But in my defence, I believe that the case law and judicial decisions elements can be placed in either discretionary or codified but would have to be done in a case by case basis that would sometimes be discretionary and other times be codified. So, it seems the dichotomy could explain the missing element but it would be better explained in an additional element as you recommend. ‘Law in the books’ and ‘law in practice’ would definitely be better titles.
    As per the portion on marital rape pre-1983, my aim was to argue from Durkheim’s perspective, which I understand to be that the law reaffirms society’s values. So, if the law believes that marital rape is legal, then the law is legitimizing marital rape, which in turn legitimizes that man and wife belong to one another.
    In addition, perhaps during that time it was believed that the patriarchal family structure is the “right” structure to follow, in which case it could be argued that the wife and husband are property of one another, thus have a common responsibility to one another.
    Nonetheless, there would not have been this immediate shift as you point out. So, it should be noted that there must have been a deteriorating shift over time that would have most definitely prevented (primarily women) abused spouses from feeling a part of the collective. Perhaps I focused that section too much on Durkheim’s belief that law reaffirms society’s values, which is still significant but does not provide the whole picture, since the collective conscious is not completely consistent with the law. So, it seems I may have unintentionally gerrymander-ed Durkheim’s argument to fit around a controversial topic; marital rape law.
    Can I find the law and society journal in KPU’s online website?

    Thanks for the suggestions, helps understand where my argument can be improved.

  3. The Special Issue of the CJLS is issue 24(3) (2009). The KPU library link is: http://muse.jhu.edu.ezproxy.kwantlen.ca:2080/journals/canadian_journal_of_law_and_society/toc/jls.24.3.html

    Regarding Durkheim and the issue of marital rape, it makes sense to draw a connection between the legal permissibility of this act (pre-1983) and the norms that dominated the collective conscience of the time – specifically, patriarchy and sexual objectification of women in ‘the home’ (which was considered to be a separate and autonomous sphere of interaction).

    One of the criticisms leveled at Durkehim (by, among many others, Comack 2006) is that his theory does not account for power imbalances and the political uses of law. Comack would suggest that this case study (marital rape) is a perfect example of the functionalist tendency to treat inequality as natural and functional.