The Law, Our Religion: A Durkheimian Perspective

-- By ChristinaYoun - 10 Feb 2008

What is Law?

Our course of study has focused on two prongs, the first of which is figuring out what “Law” is. While the great legal theorists we looked to for guidance offer interesting perspectives on the law and its practice, I will analyze law from sociologist Emile Durkheim’s perspective to show Law is a religion and explore the implications of this revelation.

Durkheim on Religion

According to Durkheim, every known society has a religion. He says a religion is any institution whose function is to perpetuate society. Religion is the society divinized; society creates religion as a manifestation of its values and morals. Thus, a religion emerges by separating the sacred (transcendental, extraordinary phenomena) and the profane (mundane, everyday activities). Members of society find solidarity through worship of the religion, that is, performing ceremonies that reinforce the belief in and power of the religion. They develop a sense of “us” versus “them.” Religion gives the members something to believe in and rally around. *

• I think you are making Durkheim out more woozily functionalist than he is. Law is religion, in your vocabulary, only if "divinize" and "perpetuate" are given almost no meaning. "Religion" is broad enough to encompass whatever establishes society on a more-than-human basis and creates an eschatology, or at any rate a structured conception of indefinite futurity. But these are not the properties of "Law" in our context.

Our Class: An Example

Our first assignment, which asked us to explain what we wanted in coming to law school, revealed a spectrum of perceptions on what “Law” is and what it can do. On one side of the spectrum, people saw law as a “practical” endeavor that would expand career choices for them. One person was attracted to the “status and respect” that law confers on its practitioners. Another thought law would help him further his interest in economic development. Yet another saw law as a way to provide for his family. On the other side, people felt they could “make justice happen” or could “make a difference” by helping others with law. One person wished to promote children’s rights advocacy after experiencing his parents’ divorce. Another wanted to use law to shape and control his surroundings after he and his family got evicted from their home. One unifying theme in the responses, however, was that not only did everyone want to use the law to accomplish one goal or another, but they also believed that the law had the power to make these goals happen.

By Durkheim’s definition, Law is our religion. Law is the transcendental, extraordinary entity that gives us a sense of who we are and what we can do. One who abides by the law – one who believes in its power and yearns to learn it and how to use it – is one of “us.” While, one who disregards the law – one who disrespects the power of Law by breaking it and refusing to yield to it – is one of “them.” We worship and celebrate Law by structuring the way we think and act around it: we refrain from generating child pornography and killing our classmates because these acts are illegal; we carefully re-read and revise our contracts because they are legally binding. We revere it and seek its guidance and approval: we report our earnings and audit one another; we seek new forums and methods to share media and information in legal ways. We partake in ceremonies to reinforce its supremacy: we go to trial in court and defer to its judges and juries.

• Actually, I think this has to be wrong. As far as I know, the primary reason I don't generate child pornography is that I'm not sexually turned on by hurting children, and I don't kill my students not primarily because it's illegal but rather, as in the first instance, because (for me) the act is unthinkable. Here you seem to be indulging in the favorite sociological error of law students--the belief that law is the primary and strongest form of social control. It is actually among the weakest.

What Does Law Do?

The second prong of inquiry has been figuring out what law does for us. According to Durkheim, the deities that the members of society worship (the transcendental notions of justice, fairness, etc. for us) are projections of the power of society. Thus, in perpetuating society, religion propagates the powers that drive society. This has two different, but not mutually exclusive, implications for us. In the first sphere, Law, in generating society, further empowers those who are already in positions of power. In the second, Law is a vehicle for society to reflect the changing currents in society and to bring changes to it.

• Whether in a Durkheimian sense we "worship" notions of justice and fairness depends on what he thinks the word means. Here as elsewhere it seems to me difficult to write about Durkheim without quoting any Durkheim.

Protector of the Status Quo

Durkheim’s theory provides that our religion exists to preserve the status quo. Since Law is the projection of the power of society, those projections are the values held by those who make law (e.g. legislatures, judiciaries, and interest groups). In effect, the lawmakers’ values become law and the rest of society lives by that law. Because the rest of society, the devout worshipers, follows the law, the lawmakers continue to be in power, promulgating preservation of the status quo. For our class, the ideals of Law we internalized from the lawmakers – that it confers status and respect and is a practical endeavor – help sustain status quo. In “Transcendental Nonsense,” Cohen makes a pertinent point that a judicial decision is a social event, which is a product of “social determinants and an index of social consequences” (843). The decision’s true meaning comes from the social forces, the “human psychology, economics and politics” at play among the lawmakers. In this realm, the lawmakers are the priests who guide us to the right (Law) from wrong (anti-Law).

Vehicle for Change

Durkheim’s theory also provides that our religion is a vehicle for reflecting and bringing about change. Law could be a mere projection of a society with fluid values and goals. In this sphere of Law, members form their own ideals of the deities. They make their own interpretations of “justice” and “fairness” and act on those interpretations to bring changes they see fit to society. This is embodied in the classmates who want to “make justice happen” or advocate children’s rights. Here, society perpetuates by empowering its members with the freedom, ideas, and inspiration to change or make Law.

Conclusion

The religion that lives under the guise of Law in our society has two faces. One face encourages status quo and static values, while the other invites creativity and change. As shown through the responses of some of our classmates, both faces are prevalent in society today. As future lawyers and possible leaders of our society, I think it is our duty and the goal of this course to contemplate which face we wish to put forward.

• Though the absence of Durkheim from a paper about Durkheim is an unusual innovation, not--at least for me--very successful, I wonder whether it isn't a clue. Certainly the paper could be strengthened in a traditional sense by finding some brief way of confirming the readings you offer by resort to text. But perhaps the absence teaches a more important lesson. When all is said and done, this essay is at its best an argument of what a dead sociologist would call something. For us, with our rather realist preoccupations, perhaps the lesson is to worry less about what Durkheim would call what we're thinking about, and more about what he would suggest we do in relation to our concerns.

* More information on Durkheim can be found at: http://www.hewett.norfolk.sch.uk/curric/soc/durkheim/durkw3.htm http://hirr.hartsem.edu/ency/durkheim.htm