법의 도덕성: 에밀 뒤르켐의 법사회학

In his first book, The Division of Labor in Society published in 1893,Emile Durkheim developed a theory of social evolution, which can be summarized as the change from mechanical solidary of segmentary society to organic solidarity of modern society. To each type of solidarity,mechanical and organic, corresponds the repressive and restitutive law respectively. While penal law stands for repressive law, restitutive law is represented by civil law, commercial law, administrative law, and constitutional law. His true conception of restitutive law, however, was quite different from that of utilitarian individualism, which regards law as a compromise among egoistic individual interests. Like its predecessor, the repressive law representing collective consciousness, modern restitutive law too is,or has to be, based on another type of morality which is suitable for modern society. This new morality, according to Durkheim, is ‘moral individualism’,put in a more up-to-date fashion, ‘human dignity and worth.’Durkheim analyses the evolution of penal law, property right, and the institution of contract from the viewpoint of the development of this kind of individualism,proposing in the end the idea of ‘just contract’, the discontinuance of inheritance,and the social democratic welfare society. Trying to overcome the antagonism between liberalism and communitarianism, between positive law and natural law,he wanted to discover ‘a third way’ which could give legal science a plentiful supply of insights and sound ideas originating from sociology of law.