Law and Social Solidarity in Contemporary China

A Durkheimian Analysis

Han Peng

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000294156
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book adopts Durkheim's legal perspective to treat law as a symbol of social solidarities to examine Chinese society.

The work analyzes changes in the nature of social solidarity from observing changes in laws, thus drawing together western socio-legal theory and distinctive Chinese conditions. It draws on Durkheim's theoretical framework and methodology to develop a more comprehensive understanding of the role of law using theories of others such as Habermas and by taking into account the discussion of power and the conflicts of interests in analyzing key social features during transition. The analysis of social anomie in terms of the changes of juridical rules as well as the changes in the nature of social solidarity provides an inspiring perspective to look into contemporary social problems.

The book will be essential reading for researchers and academics working in the areas of socio-legal studies, legal theory and law and society in China.

1 Durkheim in China

1.1 Durkheim’s theory in China

Durkheim’s sociological concepts have been present in China since the 1930s, when some scholars at Yenching University, such as Wu Wenzao and Fei Xiaotong, began to study his sociology. During that period, some classic works of Durkheim’s were translated into Chinese, such as The Rules of Sociological Method (by Xu Deheng) and The Division of Labour in Society (by Wang Liaoyi). However, after the national revolution of 1949, research on Durkheim’s theory stopped, and his theory was largely ignored in Chinese scholarship until the 1990s. In the ten years after the mid-1990s, major works of Durkheim were translated, including The Rules of Sociological Method (by Di Yuming), Suicide (by Feng Yunwen), The Division of Labour in Society (by Qu Jingdong), and Sur le Religion (by Zhou Qiuliang). Since 1999, six volumes of Collected Works of Emile Durkheim (edited by Qu Jingdong) have been published. In the past 20 years, inspiring monographs on Durkheim have published by Chinese scholars such as Xie Lizhong, Qu Jingdong, Liu Shaojie, Zhou Xiaohong, and Cai Jinchang. Hundreds of academic essays and an increasing number of degree dissertations on Durkheim’s theory have been published in recent years.¹ In 2017, a research seminar to commemorate the 100th anniversary of Durkheim’s death and his sociological thoughts (纪念涂尔干逝世百年暨涂尔干社会学思想研讨会) was organized by the Chinese Sociological Association in Shanghai, where many Chinese scholars presented papers on Durkheimian studies. These are indicative of the popularity of Durkheim’s thoughts in Chinese scholarship.

The research on Durkheim in Chinese scholarship can be divided into several categories. First is research on Durkheim’s thoughts per se, especially on the explanation of the key concepts in his theory: social solidarity, anomie, collective consciousness, moral education, and the corporation. The representative work is 缺席与断裂: 有关失范的社会学研究 [Absence and Fracture: On the Sociology of Anomie] by Qu Jingdong, published in 1999 and 2017. Second is research on understanding Durkheim’s works from different perspectives (the issue of suicide being the most popular), such as in Qu Qingyun’s “Suicide: From Individual Behaviour to Social Fact – Read Durkheim’s Suicide”.² Third is research on the relationship of Durkheim’s theory to practical problems of Chinese society. The representative works are Qu Jingdong’s research on the possibility of learning from Durkheim’s sociology in modern society (“Heritage of Durkheim – Modern Society and Its Possibilities”³) and Xie Lizhong’s work on the profound significance of Durkheim’s work to transitional Chinese society (“Problems and Prescription of Modernity: The Historical Effect of Durkheimism”⁴).

Much research has been conducted on the contrasts and comparisons between the social situations described in Durkheim’s book The Division of Labour in Society⁵ and modern Chinese social reforms. It has been advocated that Durkheim’s analysis of economic efficiency and other issues are of great significance to developing countries, especially China, and consequently that his ideas can be studied and applied to solve social problems which occur in contemporary Chinese social reform processes. For example, some scholars advocate reenforcing collective consciousness in order to maintain social harmony. Since Chinese society reformed and opened to the international world, the old values of collective consciousness have declined and citizens have put too much emphasis on individualism, leading to ignorance of the value of community and public interest, and the extreme worship of money in society. While collective consciousness is essential in Durkheim’s theory, it has been argued that this idea can be applied to restore the social value of collective consciousness in Chinese society so that the moral level of the nation can be improved.⁶

Despite these initial investigations, there are clear limitations in these studies. Two are particularly prominent. First is a failure to justify the hypothesis that the nature of social solidarity in Chinese society has changed during the last 30 years. It seems to be taken for granted that Durkheim’s solidarity theory can be used to explain the social situation of contemporary China. I think the hypothesis must be justified, as Chinese society has unique features that are significantly different from the European countries where Durkheim originated. Whether Durkheim’s theory can be exactly applicable to analysis of the Chinese situation is a question yet to be answered, and research in this field may have underestimated this.

Second, most research has proposed that China is in a transitional period during which China is developing rapidly, so that suggestions to better develop Chinese society can be made according to Durkheim’s theory. However, the nature of China’s social transition and how it is occurring are not adequately explained. For Durkheim, the type of society can be identified by looking at its legal infrastructure, so that when an argument is proposed that a society is in a transitional situation, sufficient analysis of its legal system or other symbols of such a society should be conducted for justification. Hence, the second key limitation is the ignorance of the role of law: the failure to observe society from a legal perspective.

Introductory and comparative approaches have been widely adopted by many works of Chinese scholars, rather than analytical and systematic approaches. This is inadequate, as Durkheim proposed an effective approach for studies on societies, that is, to observe the society from its symbol – law. Law, Durkheim stressed, is the clearest and most trustable symbol that can be examined in order to understand society. During the transition from mechanical solidarity to organic solidarity, the volume of repressive law decreases and restitutive law increases, and thus an examination of the relative predominance of the two types of laws can help to find which type of solidarity a society exemplifies. However, only a small number of works can be found on this in Chinese scholarship.⁷ The understanding of Durkheim’s theory from a legal perspective has therefore been much ignored by Chinese scholars, which can be evidenced by the limited works in this area.

An approach that uses law as the observable external symbol of social solidarity has been provided by Durkheim for the theoretical analysis of social solidarity. Thus, in-depth research in the application of Durkheim’s theory to a particular society, such as China, can be conducted in terms of examining the changes in the laws over previous decades. Although there may be problems concerning this approach, it is a direct way of analyzing the situation of a society based on Durkheim’s justification of the law’s representative role of social solidarity, made in The Division of Labour in Society. Chinese scholarship’s failure to adequately adopt Durkheim’s methodology may be due to the sophisticated work necessary to examine different types of laws in China or the difficulties in the process of collecting data in terms of determining the scope and categorization of laws and so on. However, when a revised method is developed which can solve relative problems in Durkheim’s methodology, the findings and results will be more informative than those that have resulted from an external combination of Durkheim’s theory and Chinese society. Moreover, the fruitful findings resulting from the application of Durkheim’s theory to China are, in turn, illuminating on Durkheim’s original theory. It is here that supplements to his work will be explored in light of these observations.

1.2 An introduction to Durkheim’s sociology and law

As a pioneer of modern sociology, Durkheim published a large number of papers and monographs on education, religion, suicide, law, crime, and so on, providing a solid theoretical foundation for modern sociological studies. It should also be noted that among classical sociologists, he is one of the founders of “legal sociology” or “socio-legal studies”. Durkheim is assumed to provide an evolutionary theory of sociology and law. In his early works, he regarded the classification of law as a direct response to different types of social solidarities, which will be discussed in later sections. In his later works, he emphasized that the law has great significant as a research area of sociology. He later found that the laws in a modern society increasingly express moral individualism, and in this sense individualism is the foundation of human rights, which contain individual dignity and autonomy in nature. Such a concept of individualism is different from selfishness and self-centeredness, which do not have a moral basis. His many followers, such as Marcel Mauss and Paul Fauconnet, also made outstanding contributions in the field of legal sociology.

In Durkheim’s first major sociological work, The Division of Labour in Society, he considered social solidarity to be a central object of sociological analysis and accorded it a privileged place in his theoretical framework. This analytical concern came about because, for Durkheim, it is social solidarity that binds society together.

Durkheim shows his central concern with the changing nature of social solidarity and the function of the division of labour in society. He conceives the division of labour as the necessary condition of civilization. While organic similarities can largely affect psychological similarities and then influence sensory impressions, the more individual resemblance in society, the more primitive the society is. Although Tarde challenged this view by saying that civilization has the effect of increasing social similarities, Durkheim argued that societies’ resemblance to one another does not mean that individuals resemble one another. T...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Contents
• Figures
• Tables
• Acknowledgements
• Abbreviations
• Introduction
• 1 Durkheim in China
• 2 Understanding law and social solidarity
• 3 Changes in repressive laws in China
• 4 Changes in collective consciousness and mechanical solidarity in China
• 5 Changes in restitutive laws in China
• 6 Changes in organic solidarity in China
• 7 Features of social phenomena in Chinese society and reflections on Durkheim’s theory
• Appendixes
• Index