Dealing with Insolvency and Indebted Individuals in Respect to Law and Morality
| DOI | 10.1177/096466390000900206 |
| Author | Bo Carlsson,David Hoff |
| Date | 01 June 2000 |
| Published date | 01 June 2000 |
| Subject Matter | Articles |
DEALING WITH INSOLVENCY
AND INDEBTED INDIVIDUALS
IN RESPECT TO LAW AND
MORALITY
BOCARLSSON AND DAVID HOFF
University of Lund, Sweden
ABSTRACT
This article is focused on the social and moral problems of insolvency and indebted-
ness, presenting and analysing the legal structure of the Swedish Act (1994) of Recon-
struction of Insolvency. The analysis is related to a revitalisation of Durkheim’s
sociology on the forms of social solidarity and, thereby, to the search for moral bonds
in our modern and rationalised society. Thus, the analysis will focus on the import-
ance of the sacred symbolism of making efforts and presenting good will. By con-
necting the insolvency law to a Durkheimian analysis of social solidarity, the article
presents functionality and morality as different forces that emphasise the ‘sacred sym-
bolism of punishment’, in order to both strengthen ‘work ethics’ and make legitimate
the principle of social welfare and the ‘security net’. According to the analysis, an indi-
vidual must trustworthily deserve, in a moral sense, the legal opportunity of clearing
his or her debts. The clearing of the debt must be pointed out as fair and proved,
through the quality of effort and sacrifice.
INTRODUCTION: A DURKHEIMIAN CONTRIBUTION
THIS ARTICLE IS AN ATTEMPT to illuminate the social and moral
problems of indebtedness – insolvency – as well as the individual’s
legal right to obtain a public clearing of private debts (i.e. ‘insolvency’)
in Sweden.1The study will be conducted in connection to a revitalisation of
Durkheim’s sociology and the search for moral bonds in our modern and
rationalised society (cf. Handler, 1990; Selznick, 1992; Cotterrell, 1995).2
The Swedish legislation on insolvency, which contains: (a) moral prescrip-
tions pertaining to patterns of behaviour; (b) technical legal considerations;
and (c) social support, provides us with an excellent point of departure for
SOCIAL &LEGAL STUDIES 0964 6639 (200006) 9:2 Copyright © 2000
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 9(2), 293–317; 012639
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investigating a number of issues central to socio-legal studies. For this
purpose, Durkheim’s sociology concerning social solidarity and sacred sym-
bolism will serve as a suitable inspiration (Durkheim, 1893/1964; 1924/1974).
In addition, Durkheim’s sociology in connection to the developing structures
of society provides an interesting departure, paving the way for Jürgen
Habermas’s attempts to trace the normative foundation of society. Never-
theless, a Durkheimian departure will stand on stronger ground than Haber-
mas’s theory, if the analysis avoids Habermas’s (somewhat intense) emphasis
on the development of the communicative structures of society and his thesis
on a ‘communicative rationality’.3The original contribution made by
Durkheim to a sociological understanding of the moral foundation of society
also challenges Niklas Luhmann’s theoretical ambition to eliminate the
impact of morality on the legal system (Luhmann, 1985; cf. Habermas, 1996).
On the contrary, the Durkheimian position shows the importance of
analysing the law with respect to moral feelings and social solidarity. Taking
an interest in law and morality, however, the study is not normatively guided,
and has no intention of saluting a specific standard of morality. On the con-
trary, the departure is empirical, trying to investigate the function and sub-
stance of moral feelings in connection to individuals in a legal process dealing
with insolvency.
By focusing on the public treatment of the indebtedness (insolvency) of
different individuals, substantial problems are highlighted in the welfare state
– or welfare community.4The subject of insolvency captures the effects of
the market system, the stress on social policy and social support, and stan-
dards of the good life, as well as the ethics of obligation and the moral notion
of community life. In the long term, this emphasis calls for reflection on
Durkheim’s thesis, which is concerned with the development of the forms of
social solidarity, social control and social integration.
The essay develops along two different lines. First, the idea is to give a clear
picture of the mixture of morality, functionality and social responsibility
within the legal proceedings of clearing insolvency. Secondly, the empirical
findings, regarding the structure of the insolvency law as well as the appli-
cation of the rules, points towards a modulation of Durkheim’s thesis on
moral bonds and social solidarity. Before starting this ‘Durkheimian reflec-
tion’, we have to introduce the social field of insolvency, indebtedness and
the legal opportunity to restore the social and economic situation of ‘indebted
individuals’.
INSOLVENCY/‘INDEBTED INDIVIDUALS’: A SOCIAL AND MORAL
PROBLEM
Ulrich Beck starts Risk Society (1992) by claiming that ‘in advanced mod-
ernity the social production of wealth is systematically accompanied by the
social production of risks’ (p. 19). The society generates, for instance, prob-
lems of bankruptcy, insolvency and individuals living with debts due to the
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