Welfare, corporatism, and criminal justice: comparing Durkheim and the new institutionalists

ABSTRACT

Émile Durkheim known among other things for his pioneering sociology of criminal law was also a corporatist theorist and can be interpreted as a predecessor for an institutionalist approach that has recently gained popularity in comparative criminal justice. Durkheim suggested an inverse relationship between the intensities of ‘repressive’ regulation and ‘restitutive’ welfare state regulation. Contemporary institutionalist research has arrived at the same conclusion, but the connection between Durkheim’s theory and the empirical observations of modern comparative research has gone largely unnoticed in both legal scholarship and sociology. Correcting this omission might prove useful for substantive theory: Apart from welfare state strength, neo-institutionalist research has also associated lenient criminal law with corporatist political economy and consensus democracy. Durkheim’s political sociology proposes an answer for the interrelationship between these factors. Durkheim considered social corporatism a democratic institution and as such a precondition for a democracy capable of building the collective restitutive regulation that could alleviate society’s reliance on punitive justice as a basis for social cohesion.

KEYWORDS:

• Durkheim
• sociology of law
• criminal justice
• punishment and society
• new institutionalism
• corporatism
• welfare state

Acknowledgements

The work was done as part of a thesis project supervised by Heikki Pihlajamäki and Ari Hirvonen.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributors

Esko Häkkinen is a grant researcher and doctoral student at Faculty of Law, University of Helsinki. His research interests include the politics and history of criminal justice, comparative penal policy, and welfare state theory. He has previously published in the journals Bergen Journal of Criminal Law and Criminal Justice (Volume 6, Issue 2, 2019) and Oikeus (Volume 45, Issue 3, 2016, Finnish).

ORCID

Esko Häkkinen http://orcid.org/0000-0003-0534-5895

Notes

1 In the article Durkheim among other things neglects to explain why modernization is associated with growing individualism. The two correlations are not the two laws mentioned in the title of the article but two aspects of one of them (the ‘quantitative law’).

2 See Hall and Soskice (2001, 45–50).

In general, liberal market economies should find it more feasible to implement market-incentive policies that do not put extensive demands on firms to form relational contracts with others but rely on markets to coordinate their activities. … Because of the bluntness of the instruments available to states and the importance of markets to these economies, deregulation is often the most effective way to improve coordination in LMEs. (P. 49)

3 So-called restorative (criminal) justice despite its superficially Durkheimian sounding name is communal justice of a segmented society especially in its more ambitious forms of conferencing and sentencing circles (see Shapland 2011), and (against its ideological premises) seems to thrive better alongside high imprisonment rates in Anglophone countries than in corporatist countries (Wood 2015).

Additional information

Funding

The work was supported by Finnish Cultural Foundation under grant number 00180373.