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Punishment and Law Class notes On Garland and Durkhiem

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LAWS 3308
Leah De Vellis

Punishment and Social Solidarity – the work of Emile Durkheim - David Garland Argument: “…despite the limitations of Durkheim’s theory and the conceptual vocabulary in which it is phrased, his work nevertheless opens up perspectives and indicated connections which can help us come to terms with the foundations of punishment and some of its social functions and meanings.” (25) - Durkheim on punishment: object of analysis, studied the concept often, believed it was heavily connected to social structure/values (ie: “penal sanctioning represented for him a tangible example of the ‘collective conscience’at work”) - Each individual in society is influenced by others with regards to culture, ethics, morals, norms  society cannot function without shared beliefs (groupings: religion, ethnic background, etc) - Herbert Spencer  modern society can survive without universality within society, “private individual interest would itself produce collective welfare and stability” VS. Durkheim  society does need “framework” but it should reflect current/modern society’s values (which at this point reflected more individuality, values of freedom, rationality and tolerance) - Durkeim’s conception of punishment not taken seriously because a) it is heavily supported only by his general social theory, b)it implies evolutionary account of the history of penal law – based upon inadequate/misleading data, and c)seems to be lacking modernity, and stays within the ‘primitive’framework of society (ancient/low-scale). - The Division of Labour – early text of Durkheim’s work. o “the existence of strong bonds of moral solidarity are the conditions which cause punishment s to come about, and, in their turn, punishments result in the reaffirmation and strengthening of these same social bonds.” o D: crimes are not ‘given’or ‘natural’categories that society responds to, rather, they vary, given the place and time, as society’s viewpoints on such topics differ. ‘Crimes are those acts which seriously violate a society’s conscious collective; violations of society’s fundamental moral code.’This demands punitive actions. - Crimes = offences against society’s moral order, raise feelings of outrage from those not directly involved (ie: many individuals might share the same thoughts towards a murderer or rapist; disgust, anger, etc.). So, though the state itself administers punishment, society is indirectly involved as well via stigmatization and their collective moral beliefs pertaining to the issue which influence what classifies as “crime” or not in the first place. - “Passion…is the soul of punishment and vengeance is the primary motivation which underpins punitive actions.” o Essence of punishment is irrational, unthinking emotion fixed by a sense of the sacred and its violation. - 3 parties in punishment: Controller (state), controlled (accused) and the onlookers (outraged members of society) - strength of onlooker response reflective of strength of moral order  punishment on issue is a must - D: punishment doe
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