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

Abstract

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.