In general sociology, the foundation of the consensus model of society was firmly laid by the works of Auguste Comte, Herbert Spencer and Emile Dürkheim. Upon this
foundation, later generations of scholars, like Talcott Parsons, Robert Merton, Kai Erikson, Neil Smelser, Davis and Moore, etc, came to build
In both sets of works, the picture of society conveyed is, generally, one in which "consensual order and stability are the natural state of social systems" (O’Malley, 1983:3-4). For instance, while analysing the cause of, and the solution to, the social crisis of his time, Comte forcefully suggests that consensus lies at the base of every genuine social order. He says:
the great political and moral crisis that societies are now undergoing is shown by a rigid analysis to arise out of intellectual anarchy. While stability in fundamental maxims is the first condition of genuine social order, we are suffering under an utter disagreement .... Till a certain number of general ideas can be acknowledged as a rallying-point of social doctrine, the nations will remain in a revolutionary state... ITlor the causes of disorder will have been arrested bv the mere fact of the agreement. It is in this direction that those must look who desire a natural and regular, a normal state of society (Comte, 1853) (emphasis, mine).
Although Comte's writings generally represent a reaction to a specific social crisis of his time, his general principle of agreement-normality equation, as exemplified in the above quotation, features prominently in most of the consensual approaches to society.
Regarding the relationship between law and society, the picture painted by the consensus argument suggests a position which views law as essentially embodying and/or emanating from generally accepted social values. As Chambliss, (1969: 8) has observed,
the crux of this position is that legal norms are an expression of those societal values which transcend the immediate interests of individuals or groups. Legal norms are seen as emerging through the dynamics of cultural processes as a solution to certain needs grid requirements which are essential for maintaining the fabric of society* 2.
A detailed articulation of this position is presented in the following review.
* See Cuff and Payne (1979: 34-53) for summaries of their works.
2 This view reflects the structural functionalism of the Durkheimian type. It is necessary to note this distinction because at certain levels of analysis the works of Marx and neo-marxists like Althusser may qualify as "structural functionalist" in their assumptions.
3.2.1 Spencer and the consensus argument
In chapter two the contribution of Spencer to the autonomy model has been reviewed. In this chapter, the other parts of his work, the Principles of Sociology, 1882, which articulate a social-product consensus position on law will be reviewed. In the chapter devoted to "Laws" in Volume II of this work, Spencer identifies consensus as one of four major sources of laws; the other three, being the special injunctions of deceased leaders, the commands of deities and the commands of living leaders.
In communicating the idea of this consensus, Spencer uses a number of concepts. There is the "aggregate opinion", the "aggregate feeling", the "prevailing sentiments and ideas" and the "public desire". In each or all of these, "we have the germ of law which eventually becomes recognised as expressing the public will", i.e "the formulated will of the majority".
This law, according to Spencer, derives its "obligation from the consensus of individual interests", though, itself, "impersonally-derived"; it conduces to social welfare" or "provides directly for social order"; it precedes any kind of law "initiated by political authority"; and it has "equality as [its] essential principle". The "consensus of individual interests" remains the "primitive source of the law". And, even when "entirely subordinated [by other sources, it] ... never ceases to exist".
Spencer notes that his analysis
is tantamount to saying that the impersonally-derived law which revives as personally-derived law declines, and which gives expression to the
consensus of individual interests, becomes in its final form, simply an applied system of ethics - or rather, of that part of ethics which concerns men's just relations with one another and with the community.
There is no rigourous analysis of the concepts which Spencer has used to represent the images of consensual foundation of law in his work. For instance, the connection between "individual interests" and "public desire" should have been clarified, as should the distinction between law and a system of ethics. Nonetheless, he has said enough to indicate the theoretical position of law as a product of some form of social agreement.
3.2.2 Dürkheim and the consensus argument
To appreciate Durkheim's contribution to the consensus position on law, some reflection on his intellectual orientation may be necessary. Dürkheim, from the beginning of his career, took sociology "seriously as his vocation"; and "the development and autonomy of sociology remained his salient preoccupation" (Tiryakian, 1981). His pioneering contribution to the emergence of the sociology of law as a discipline is, in my judgment, unrivalled.
Out of the eleven names on Gurvitch's (1947) list of the founders of the sociology of law, only Dürkheim had his original training in sociology. And, as Gurvitch (1947: 83) observed, "aside from the two principal works in which he takes up legal questions, ... all his works, as well as the important notes in the Annee Sociologique ..., contributed to the clarification of this field [of the sociology of law]". This journal - Annee Sociologique (12 volumes from 1898 to 1912) - which was run by Dürkheim himself, contained a special section devoted to "'the analysis of works where law of a society or social type is studied in its entirety’ and ... in such a way as to reveal principles of social organisation and collective thinking" (Lukes and Scull, 1983: If).
Dürkheim (1900) presents the centrality of the study of law to his sociological enterprise in these words:
Instead of treating sociology in genere, we have always concerned ourselves systematically with a clearly delimited order of facts: save for necessary excursions into fields adjacent to those which we are exploring, we have always been occupied only with legal or moral rules studied in terms of their genesis and development (quoted in Lukes and Scull, 1983: 2).
As to why law came to be central in his sociology, Cotterrell's (1977: 248) submission seems cogent. He argues, "law is important for [Dürkheim] because it indicates in observable form a morality operative at the level of the whole society and sufficiently central to the society's existence to be reflected in definite, communicable, codified
rules". This is a fair restatement of Durkheim's (1893, 1960: 64-65) own assertion that, as a moral phenomenon, social solidarity by itself,
does not lend itself to exact observation nor indeed to measurement. To proceed to [the measurement and comparison of the degree to which the solidarity contributes to the integration of society], we must substitute for this internal fact which escapes us, an external index which symbolises it, and study the former in the light of the latter. This visible symbol is the law.
Dürkheim argues that to study social solidarity in this way (i.e. sociologically), it is necessary to discover some identifiable characteristics which are capable of varying as the species of solidarity varies. He finds such a characteristic in the sanctions which attach to the laws through which the moral codes of the conscience collective are expressed; hence, his focus upon the repressive and restitutive laws. Dürkheim further reiterates the significance of law in these words:
Social life, especially where it exists durably, tends inevitably to assume a definite form and to organise itself, and law is nothing else than this very organisation... We can thus be certain of finding reflected in the law all the essential varieties of social solidarity (op.cit).
With such theoretical conviction and commitment as shown in the foregoing, it is probably not surprising that Durkheim's name has come to dominate sociological discussion of the consensus argument about law and society.
Dürkheim begins with a conception of social order in terms of "the totality of beliefs and sentiments common to average citizens of the same society". According to him, these beliefs and sentiments
form a determinate system which has its own life; one may call it the
collective or common conscience... [I]t has specific characteristics which make it a distinct reality. It is in effect, independent of the particular conditions in which individuals are placed. Moreover, it does not change with each generation, but on the contrary, it connects successive generations with one another (Dürkheim, 1893, 1947: 79-80 - translated by George Simpson).
The technical concept which he uses to convey this collective reality in his sociology is "social fact"^. This "thing"^, in his view, provides the foundation from which all normative systems (including law) emerge; and the "thing" is in turn indexed by these systems. As it would appear, Dürkheim singles out law as epitomizing this indexation. In the words of Grace and Wilkinson (1978: 48), law, for Dürkheim, is "the paradigmatic instance of a social fact".
In his first major work - The Division of Labour in Society (1893) - Dürkheim puts forward what Lukes and Scull (1983: 1) have termed "three bold and striking hypotheses about law". This work "became overnight a landmark of sociological writing and has remained a standard reference work ever since its publication as a doctoral dissertation in 1893 - which I suspect is an unmatched record of longevity in sociology" (Tiryakian, 1981: 116).
On the source of law, Dürkheim is forthright in this first work. For him, law is derivative from and expressive of a society's social solidarity ("a wholly moral phenomenon"). This social solidarity - more technically, conscience collective - is the moral-political consensus or, as indicated before, the totality of beliefs and sentiments common to average citizens of the same society.
The solidarity varies from the mechanical one of the simple society to the organic one of the complex society. The former "is all-embracing and furnishes a comprehensive moral code" (Cotterrell, 1977: 242). And, corresponding to it is the penal law (supported by repressive sanctions). The repressive law aims at hurting the offender through his fortune, his honour, his life, his liberty, or to deprive him of some object whose possession he enjoys.