Max Weber and Emile Durkheim are both theorists for whom the changing nature of legal strictures and modes of organization are fundamental to understanding the nature of social development. While the two thinkers both understand legal structures to be in communication with both the form of social production and the individuals which constitute this society, they present a fundamentally different understanding of this relationship. Most notably, while Weber understands legal change as retaining the existing tensions of other modes of organization, Durkheim suggests that any such tension is sublimated in the development collective values and organic solidarity.
According to Weber, the primary change which can be argued to come about in legal systems is one which moves from a irrational view of law based on the cyclical life-cycles of the pre-modern period to a fundamentally rational legal system based on the development of capitalist systems of production and the systems of rationality which emerged as a result of this. While Weber claims that changes in legal system maybe only tangentially related to changes in systems of social production, he nonetheless suggests that development of the structures of capitalism were able to effect an almost ontological shift in the priorities that were given to legal processes and, as such, to the requirements of their form and content. For example, he notes clearly that “that certain rationalizations of economic behaviour, based upon such phenomena as a market economy or freedom of contract…have influenced the systematization of the law or have intensified the institutionalization of the polity” (Weber, 2013, 655). A change from pre-modern to modern legal systems is affected by the appearance of rationality and by the appeal to social institutions over and above the power of a particular, and potentially arbitrary sovereign figure who is seen as deeply connected to the cyclical nature of life itself and who, as a result, has their power determined by this relationship. As such, Weber argues it is only by fundamentally changing social production from one based on yearly cycles to one based on the accumulation of capital and on the corresponding subjective achievement of linear life goals.
According to Weber, rationality permeates all aspects of the modern legal system, especially when in contradistinction to the pre-modern. For example, he notes that the latter forms of legal reasoning were marked by consistently magical forms of belief, as shown in the ritualistic presentation of evidence and in the insistence on particular forms of testimony (Weber, 811). Once again, it is argued to be the changing concentration of economic and political power which brings about a change to a contemporary system of legal organization. Weber notes that legal systems which actively support the concentration of economic power in the hands of the owners of private property abhor irrationality and seek to rationalize away from subjective notions of justice and to move closer to an undemanding of justice as something that, due to its “necessarily abstract character, infringes upon the ideals of substantive justice” (Weber, 813). Despite this apparent change in structure, however, Weber insists that legal change does constitute in anyway a sublimation of previous structures of law, but rather that it remains in continuous tension with other, earlier modes of justice as, for example, in situations in which jurors acquit those whom they know to be technically guilty because their behaviour matches a behaviour that is socially acceptable to their peers.
In contrast to Weber, who posits a tension filled theory of legal change based on rationality and a change in social production, Emile Durkheim presents a quasi-Darwinian view of social development in which society moves through progressive forms. This progression is founded on an increasingly collective conscience and sense of solidarity brought about, primarily, through the increasing concentration of the division of labour which brings individuals into closer and closer proximity and actively facilitates both communication and the progress of shared ideals. According to Durkheim, these shared ideals should be seen to lie at the heart of any understanding of law. For example, even the idea of crime itself, and the punishment that it necessarily invoked is understood in direct relation to that which defines “strong and defined states of the conscience collective” (Durkheim, 1973, 123). Later, he notes simply that we do not condemn something because it is a crime, but rather “it is a crime because we condemn it” (Durkheim, 124).
It is the evolution in social forms and therefore the increase in mutually recognized needs and desires of a collective population which brings about the permanent evolutions and changes within the legal system of a country. For example, at one point he notes that the introduction of prisons into society coincides both with the social recognition of particular crimes and also with the development of society to such an extent whereby it is possible for a criminal to become anonymous and to simply disappear into it given the unless he is arrested and actively held (Durkheim, 131). According to Durkheim, such a social contraction represents a qualitative change from other forms. This change is irreversible and is dependent upon varying states of what Durkheim terms mechanical and organic solidarity which form the basis for the collective conscience.
In conclusion, therefore, it is this difference between an understanding of change influenced by changes in production and qualitative evolution brought about by changes in social conscience which most obviously distinguishes the theories of Weber and Durkheim. While one sees legal structures in continual tension with changed, but not sublimated, social contradictions, the other understands a primarily harmonious relation between the social whole, the dominant mode of social production and the legal systems and institutions that result from them.