Durkheim on law and morality: The disintegration thesis

Abstract

A celebrated and much-discussed article by the distinguished English legal philosopher H.L.A. Hart entitled ‘Social Solidarity and the Enforcement of Morality’ (1967) presents a radically simplified account – a caricature, so to speak – of Émile Durkheim’s views on law and morality. Hart called this account ‘the disintegration thesis’ and identified the then eminent English judge, Lord Devlin, and Durkheim as proponents of this thesis. We here seek to set out the disintegration thesis as formulated by Hart and also his helpful suggestions for rendering it into a set of empirical claims. We dispute his attribution of this thesis to Durkheim and present an alternative account of Durkheim’s views about law and its relation to morality. The critique of Hart’s characterization of Durkheim helps to identify what is distinctive about Durkheim’s views and to explore various questions raised by Durkheim’s writings concerning the legal regulation of morality. We conclude by suggesting ways in which Durkheim’s answer is particularly relevant to our time.