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.
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.