Smith explores Emile Durkheim’s major objections to Herbert Spencer’s theory of a free society based on voluntary contracts.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

In The Division of Labor in Society, Emile Durkheim’s first book (1893), we find an extended criticism of Herbert Spencer’s notion of a voluntary “society of contract,” in contrast to a coercive “society of status”—labels that Spencer took from a book, Ancient Law (1861), by the legal historian Sir Henry Sumner Maine. Although Durkheim was influenced by Spencer and adopted some of his basic ideas, he disagreed in a number of important respects with Spencer’s analysis of a contractual society. Two issues will occupy most of my attention, viz., the stress that Spencer put on self‐​interest in a free, contractual society; and Spencer’s insistence that government in a free society should confine itself to the “negative” functions of protecting individual rights and enforcing voluntary contracts. In the course of exploring Durkheim’s objections to Spencer’s points, I will discuss some broad theoretical issues in sociology, such as what we mean—or should mean—when we speak of “society” and some problems that arise when we attribute to “society” certain causal powers, as Durkheim frequently did.

Durkheim vehemently disagreed with Spencer and other classical liberals that the pursuit of individual self‐​interest will result in a spontaneous social order. He wrote:

[I]f mutual interest draws men closer, it is never more than for a few moments. It can only create between them an external bond. In the fact of exchange the various agents involved remain apart from one another and once the operation is over, each one finds himself again ‘reassuming his self’ in its entirety. The different consciousnesses are only superficially in contact: they neither interpenetrate nor do they cleave closely to one another. Indeed, if we look to the heart of the matter, we shall see that every harmony of interests conceals a latent conflict, or one that is simply deferred. For where interest alone reigns, as nothing arises to check the egoisms confronting one another, each self finds itself in relation to the other on a war footing, and any truce in this perpetual antagonism cannot be of long duration. Self‐​interest is, in fact, the least constant thing in the world. Today it is useful for me to unite with you; tomorrow, the same reason will make me your enemy. Thus such a cause can give rise only to transitory links and associations of a fleeting kind.

…For in a contract not everything is contractual. The only undertakings worthy of the name are those that are desired by individuals, whose sole origin is this free act of the will. Conversely, the only obligation that has not been agreed by both sides is not in any way contractual. Wherever a contract exists, it is submitted to a regulatory force that is imposed by society and not by individuals; it is a force that becomes ever more weighty and complex.

Durkheim also insisted, contrary to Spencer, that the legal system of a society dominated by voluntary contractual agreements cannot rest on “negative” regulations alone. Such a thing is quite impossible, according to Durkheim. Indeed, the more a society becomes permeated with contractual agreements, the more positive regulations will be required in that society.

A legal system, according to Durkheim, will specify provisions for a valid contract that even the contracting parties cannot dispense with by mutual consent. For example, “It denies any binding power to undertakings entered into by one incapacitated mentally…or whose reasons are illegal, or made by a person who has no right to sell, or relating to a thing that cannot be sold.” Moreover, a legal system, not the contracting parties, will determine the formal conditions of a valid contract—so here again it is “society” that imposes rules that have not been determined or agreed upon by the contracting parties. An important function of contract law is “to determine the legal consequences” of contracts with effects that could not be foreseen or avoided beforehand. Those legal consequences, which are mandatory, are determined not by individuals but by “society and tradition,” as manifested in law. Durkheim concluded: “The law of contract therefore exercises over us a regulatory action of the utmost importance, since it determines in advance what we should do and what we can demand.”

Summing up, therefore, the contract is not sufficient by itself, but is only possible because of the regulation of contracts, which is of social origin. This is implicit, firstly because the function of contract is less to create new rules than to diversify pre‐​established rules in particular cases; secondly, because it has not, and cannot have, any power to bind save under certain conditions that need to be defined….Thus in any case the role of society cannot be reduced to a passive one of seeing that contracts are carried out. It also has to determine in what conditions they are capable of being executed and, if the need arise, restore them to their normal form. Agreement between the parties concerned cannot make a clause fair which of itself is unfair. There are rules of justice that social justice must prevent being violated, even if a clause has been agreed to by the parties concerned.

Durkheim, to repeat, sought to establish two points. First, self‐​interest alone is insufficient to sustain a society of contract, or a dependable social order of any kind, since the conflicting interests of individuals will frequently cause them to violate their agreements. A more stable moral foundation is required, a foundation rooted in moral norms that no individual can avoid or change. Second, contrary to Spencer, a free society based on voluntary contractual relationships cannot sustain itself solely by “negative” regulations and laws that merely protect the rights of individuals. Rather, a government must also enforce “positive” regulations relating to contracts, in the manner described above. I will discuss the second point in the remainder of this essay. Discussion of the first point must await my next essay.

We should distinguish, as Durkheim did not, informal agreements that are not legally enforceable from those formal agreements that are legally binding and so may be coercively enforced. We also should distinguish, as Durkheim did not, the preconditions of a legal contract from the obligations incurred after those conditions are met.

When Herbert Spencer and other classical liberals spoke of a society based on contract, they were not necessarily referring to legally binding agreements. Rather, a society of contract was viewed as a society in which individuals can engage in noninvasive voluntary interaction, based on mutual consent, without any coercive interference from government. The term “contract,” in this tradition, was a generic label for all such voluntary associations; it did not refer only to formal, legally binding agreements. And when Spencer argued that a government in a society of contract should be restricted to “negative” functions, he meant that the government of a free society should restrict its domestic activities to protecting the right of individuals to engage in voluntary interactions with other individuals—agreements that permit people to pursue their own goals as they see fit, rather than having their actions and goals coercively dictated by government.

Problems of the sort listed by Durkheim will arise even with informal agreements. In some cases there may be a blurred line between mutual consent and an association in which one party was subjected to unjust duress. Another problem—one more among many—is what external signs must be given to signal consent. (We find this problem in contemporary discussions of “date rape.”) It is the job of a legal system and courts of law to settle these and similar controversies. Given the complexity of social relationships, no general rule can possibly anticipate every conceivable problem that may arise in those gray areas on the border between voluntary and coercive associations. Such matters require the good faith application of general rules to particular cases. They require, in other words, judgments, specifically, legal judgments in which the pros and cons are assessed and a final decision is rendered by an impartial arbiter guided by abstract rules.

In formal contracts, Durkheim was obviously correct when he maintained that a legal system will ultimately determine which agreements are enforceable and which are not. Spencer would have agreed with this claim, but he would have insisted that individuals, not tradition or some vague entity called “society,” will determine the particulars. We may say until we are blue in the face that “society” determines this or determines that, but in the final analysis only individual human beings, not society, can make decisions and undertake actions. We may not know which individuals in the distant past established a precedent or embedded a custom or convention more deeply into the social fabric, but we do know that such individuals existed, even if we know nothing else about them. There was never a being called “society” that stalked the land and made things happen.

In addition, the particular identities of those anonymous individuals are usually irrelevant to our understanding of social phenomena, which is why we sometimes speak of “society” instead of mentioning specific people. “Society” typically denotes those anonymous others that we know are (or were) acting purposefully to achieve goals, but whose concrete identities we do not need to know in order to understand the social outcomes of their actions.

As I explained in a previous essay, what is usually essential to our understanding of social phenomena is knowledge of the social or political roles played by individuals, not the particular and unique attributes of those individuals. When we say that the police enforce drug laws, we do not mean that some weird entity called “the police” goes around arresting people. Rather, we mean that anonymous individuals acting in the legally defined role of police officers enforce drug laws. And in calling those people “anonymous,” we mean more than that their identities (in many cases) are unknown to us; we also and more importantly mean that their personal characteristics are irrelevant to the point we wish to make. The individual characteristics of those officers are immaterial to our generalization—we don’t care about the marital status or hobbies of specific policemen, for example—so we employ the abstraction “police” instead of enumerating and describing the officers individually. Indeed, the latter process would actually obscure the relevant point, namely, that in their role as police officers certain people have the legal authority to arrest drug consumers, a privilege that most people lack. What matters here is the legal authorization per se, not the individuals vested with that authority, for it is the legal authorization that defines what we mean by “policeman.” The same reasoning obviously applies to broader abstractions, such as “society” and “state.”

What are we to make of Durkheim’s claim that the role of law in defining what does and does not qualify as a valid contract constitutes a type of “positive” regulation of the sort that Spencer opposed? Well, since Spencer never denied that a legal system should determine the preconditions of a formal contract, this controversy reduces to a verbal quibble. But we should keep in mind the difference between defining a formal contract and enforcing that contract after the preconditions (as established by the legal definition) have been satisfied. A legal system may stipulate that contracts formed with young children are not enforceable; precious few if any liberal individualists would protest this proviso. Is this kind of stipulation “positive” or “negative” in character? Whatever term we may wish to use, I cannot see how it makes any substantive difference. It certainly doesn’t affect the points Spencer wished to make about a society of contract and the proper role of government in a free society.