Justice, Dignity, Torture, Headscarves: Can Durkheim’s Sociology Clarify Legal Values?
| Author | Roger Cotterrell |
| Published date | 01 March 2011 |
| Date | 01 March 2011 |
| DOI | 10.1177/0964663910378433 |
| Subject Matter | Articles |
Article
Justice, Dignity, Torture,
Headscarves: Can
Durkheim’s Sociology
Clarify Legal Values?
Roger Cotterrell
Queen Mary University of London
Abstract
E
´mile Durkheim’s claims about justice, human dignity and the value system of moral
individualism in complex modern societies are part of the canon of classical
theoretical ideas that underpin social research. Yet these claims are often neglected in
socio-legal studies or seen as remote from much current Western legal experience. This
article examines Durkheim’s sociological conceptions of justice, dignity and individualism
to demonstrate their usefulness for the study of legal values in contemporary Western
societies. Applying these ideas to such diverse clusters of topics as punishment and the
use of torture, on the one hand, and sexuality and the wearing of Islamic headscarves, on
the other, it argues that his work sheds important new light on current legal controver-
sies and provides enduring insights for a developing sociology of legal values.
Keywords
Durkheim, human dignity, Islamic headscarf, legal values, punishment, sociology of
justice, sociology of law, sociology of morals, torture
Introduction
Can sociology tell us what is right or wrong? For most social scientists (and surely most
citizens) the answer is clearly no. Sociology claims to be science, not moral philosophy.
Sociology of law, for example, aims to explain the social character of law, but not
whether any particular law or legal regime is just, or morally sound. A few leading mod-
ern legal sociologists have disagreed. Philip Selznick, for example, influenced especially
Corresponding author:
Roger Cotterrell, Queen Mary University of London, London, UK
Email: r.b.m.cotterrell@qmul.ac.uk
Social & Legal Studies
20(1) 3–20
ªThe Author(s) 2011
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DOI: 10.1177/0964663910378433
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by John Dewey’s teaching on the relations of fact and value, claims that sociology,
studying legality as an ideal pursued in practice, can also help to clarify and realize that
ideal (Selznick, 1969, 1992: ch. 1). But this has been an unusual minority position.
In fact, however, classic sociological theory provides some still useful resources for
reconsidering orthodox views about sociology’s capacities for informing moral and legal
evaluation. Most importantly, these resources are found in E
´mile Durkheim’s elaborately
developed sociology of morality. Yet this central aspect of his work has remained largely
unexploited and often ignored as regards its potential relevance for contemporary legal
studies, despite all the attention that has been devoted to relating other parts of
Durkheim’s sociological thought to the study of law.
Durkheim offers a powerful and distinctive sociological template for examining legal
values, aiming to show how they gain such resonance as they have from their congruence
with conditions needed to ensure cohesion and integration of the society in which they
exist. This article explains his main ideas on what he sees as a sociologically necessary
framework of values for modern law. It then tries to show the kind of illumination that
these ideas may provide by considering, in Durkheimian perspective, two recently pro-
minent legal-moral issues: the acceptability of torture in defence of national security; and
restrictions on the wearing of the Islamic headscarf.
These issues may seem wholly distinct and unrelated but, in the context of this article,
they provide convenient vehicles for exploring aspects of ‘moral individualism’ – the
value system that, for sociological reasons, Durkheim argues must be the foundation
of all law in modern complex Western societies. The central element of Durkheimian
moral individualism is universal respect for the equal human dignity and autonomy of
every member of society, whatever differences there may be in the outlook, position, life
conditions or roles of society’s members. I suggest that Durkheim offers, through his
analyses of moral individualism, a thought-provoking and critical sociological alterna-
tive to familiar legal-philosophical debates on human dignity.
I argue that this alternative provides important insights relevant to contemporary
issues. It can be used, for example, not only to show unambiguously why the use of torture
is morally indefensible for contemporary complex societies, but also to clarify the context
(in terms of various conceptions of national security) in which efforts have been made to
defend torture. In relation to Islamic dress, an application of Durkheim’s ideas on solidar-
ity and the body suggests that prohibiting certain forms of this, but not others, contravenes
values of human dignity. Beyond this, I argue that Durkheim reveals the complexity of
human dignity and autonomy as legal values, and raises important issues about their scope
of application. This is not to claim that these values must be seen in Durkheimian terms,
but merely that to do so may cast a new, revealing light on their scope and significance.
Durkheim consistently advocated a ‘value-free’ sociology of morals – purporting to
study moral values objectively as these are expressed in the practices, proclamations and
assumptions characteristic of particular societies or social groups. But Gabriel Abend
(2008) has recently argued that Durkheim’s actual sociological practice was very differ-
ent since he was committed – as he made clear – to the idea that ‘science can help in
finding the direction in which our conduct ought to go, assisting us to determine the ideal
that gropingly we seek’, and, having observed reality, ‘we shall distil the ideal from it’
(Durkheim, 1984: xxvi).
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