The paper I am writing about will be on laws governing prohibited substances. Laws prohibiting illegal substances have been created and repealed many times throughout our society, with the infamous alcohol prohibition in the early 1900’s to the recent legalization of marijuana in Washington and Colorado. Both Durkheim and Marx provide differing opinions on this issue and what the causes and effects are. For Durkheim, his belief is that law shapes society, meaning that our society’s norms are reflected in our laws. Marx suggests the contrary, that our society is what shapes law. This is in regards to his beliefs that society’s common interests must arise from our methods of production. A State does not directly form a society; rather it develops based on the social conditions at the time. He argues that a society cannot be based on old laws that were created from previous social conditions.
Durkheim’s theories of society and its structures covered a broad range of topics, but “he was mostly concerned with social solidarity, or how society is held together” (Pavlich, 2011, p. 73). This social solidarity can be separated into two different categories dependant on the type of society: ‘Mechanical solidarity’ and ‘Organic solidarity’. Mechanical solidarity occurs when “a certain number of states of consciousness are common to all members of the same society” (Pavlich, 2011, p. 77). In this type of solidarity exists a ‘repressive’ system of punishment (e.g. criminal, penal). The reason for this type of punishment is because of the strong collective morality that is offended by a crime. Organic solidarity is a modern type of society where it is comprised of several independent systems that all work together in cohesion. With this society comes a new type of ‘restitutive’ punishment (e.g. civil, administrative). This involves “a complex division of labour that generates disputes around individual property rights, commercial transactions, torts, administrative regulations…” (Pavlich, 2011, p. 77).
He would explain prohibition laws as performing collective functions for the benefit of society. In general, he argues that crimes would inform individuals of what not to do and act as a deterrence. Crime is an inevitable part of our society, so naturally we would need laws based on social norms to prevent it. However, there would need to be a shared value among individuals that illegal substances are against the norm which Durkheim calls ‘social facts’. It is best to look at this issue with a functionalist perspective as Durkheim would do. In this perspective, laws would be analyzed to gauge their social impact in two ways. Laws can either perform restitutive affects or reinforce the norms of a society. What prohibition laws could do with this perspective is force offenders to make some sort of amends for their crime(s). Also, if this were a regulatory society (i.e. organic solidarity), we would be able to reduce the occurrence of illegal substance use due to increased sanctions that could possibly make obtaining these substances more difficult. Another method that drug prohibition laws could change society is by reinforcing the collective norms against that illegal behaviour. More specifically, it could strengthen the bond between individuals to reaffirm their social norms.
On the other hand was Karl Marx, who believed that law is a product of society and not the other way around like Durkheim suggested. One major difference between Marx and Durkheim was that Marx focused more on the economy and politics in his ideas about society. In particular, he focused on ‘materialism’ or the production of our needs society. He viewed this economic system as a constant struggle between the capitalists, who own the land and employ the workers, and the working class. The legal system comes into play to uphold the capitalists’ means of production. In particular, criminal law exists to keep the capitalist class stable against any sort of organized revolution against them.
Crime, in a Marxist approach, occurs as the result of the conflict between the opposing classes. Marx would explain prohibition laws as being based on the social conditions during the time they are enacted. He would suggest that these laws came into place in an effort to control the working class. By the capitalists imposing social control over the working class, they would be able to continue their means of production. In essence, law and the State are one and they reflect the current economic state. Moreover, Marx would also suggest that the legal substances today that used to be illegal, such as alcohol, are accepted because of the financial gains the capitalists make from it. To them, alcohol is a profitable business, which is why it is in their best interests to keep it legal.
Pavlich, G. (2011). Law and Society Redefined. Ontario, Canada: Oxford University Press.