Sociology and Law

Sociology and Law:

The 150th Anniversary of Emile Durkheim
(1858-1917)

Edited by

Maria Serafimova, Stephen Hunt, and Mario Marinov,

with Vladimir Vladov,
Consulting Editor and translations from Bulgarian

Sociology and Law: The 150th Anniversary of Emile Durkheim (1858-1917),

Edited by Maria Serafimova, Stephen Hunt, and Mario Marinov,
with Vladimir Vladov, Consulting Editor and translations from Bulgarian
This book first published 2009
Cambridge Scholars Publishing
12 Back Chapman Street, Newcastle upon Tyne, NE6 2XX, UK

British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

Copyright 2009 by Maria Serafimova, Stephen Hunt, and Mario Marinov, with Vladimir Vladov,
Consulting Editor and translations from Bulgarian and contributors
All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system,
or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or
otherwise, without the prior permission of the copyright owner.
ISBN (10): 1-4438-0502-5, ISBN (13): 978-1-4438-0502-5

TABLE OF CONTENTS

Introduction ................................................................................................. 1
Maria Serafimova, Stephen Hunt, and Mario Marinov
PART ONE: THE LAW AS A FORM OF SOCIAL SOLIDARITY
Legal Sociology: Its Modern Dimensions
Sofka Mateeva ............................................................................................. 6
Legal-Sociological Parameters of the Fight Against Crime and Social
Deviance
Stefka Naumova ........................................................................................ 11
The Theory of State and Law In Post-Soviet Times: Some Reflections
Orest Martyshin ......................................................................................... 23
Human Rights, Religion, Values and Power in the Period of Relativism
Michaela Moravkov .............................................................................. 33
The Turnovo Constitution and the Establishment of Bonapartist
Statehood in Bulgaria
Georgi Naidenov ....................................................................................... 41
The Constitution as a Major External Institution: The Question of Legal
Neo-Institutional Analysis in Economic Sociology
Jeko Kiossev.............................................................................................. 48
Work Division, Domination and Solidarity In French Law Field: Scholars,
Judges, and the National Judicial School's Public Contest Oral Exam
Fernando Fontainha ................................................................................... 55
The Creation of the Proximity Judges: A Public Policy Analysis
of the French Judiciary Reform (2002-2006)
Pedro Heitor Barros Geraldo ..................................................................... 68

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Table of Contents

The Legal Consciousness of Civil Servants in the Context of Durkheims

Theory of Anomie
Nadezhda Yonkova ................................................................................... 78
PART TWO: ELEMENTARY FORMS OF NEW RELIGIOUS LIFE
Too Much or Too Little? Durkheims Suicide as a Model for Analysing
New Religions
Eileen Barker ............................................................................................. 94
The Elementary Forms of New Religious Life and the Law: Sects,
Cults and the Social Construction of Moral Panics
Massimo Introvigne................................................................................. 104
Durkheimien Approaches to Implicit and Quasi Religiosity:
Some Implications for an Analysis of World-Affirming New Religious
Movements
Stephen Hunt ........................................................................................... 116
Elementary Forms of New Religious Life in Bulgaria
Mario Marinov......................................................................................... 128
New Religiousness in Slovakia as one of the Factors of Postmodernism
Lucia Grekov........................................................................................ 139
The Place of Durkheims Elementary Forms of Religious Life
in the Development of the Sociology of Religion
John Rex .................................................................................................. 153
Durkheims Achievements in the Study of Religion
Zoran Matevski and Etem Aziri .............................................................. 158
Durkheim's Contribution to the Analyses of the Religious Phenomenon
Dushka Matevska .................................................................................... 163
Strongholds of Solidarity
Maria Serafimova .................................................................................... 170

Sociology and Law

vii

PART THREE: DIMENSIONS OF TOLERANCE

Paradise Lost or Barbarianism Returned: Durkheim and Contemporary
Ethnic Conflict
Stephan E. Nikolov.................................................................................. 188
Ethical, Social and Legal Regulations in the Cyberspace
Vladimir Dulov........................................................................................ 199
Internet Blogs and Solidarity in Society
Slavka Popova ......................................................................................... 211
A Comparative Analysis of Media Coverage of the Anomic Social Facts:
Newspapers Discourse in Romania and Canada
Valentina Marinescu................................................................................ 216
The Right to Communication
Dobrinka Peicheva................................................................................... 223
Sociology and Education in the Works of Durkheim
Valentina Milenkova ............................................................................... 235
Morals and Legitimacy in Civil Society: A New Perspective
on the Connection Between Sociology and Morals, as Viewed
in Modern Studies on Durkheim and His Attempt at Creating
Moral Sociology
Ralitsa Angelova ..................................................................................... 243
Moral Conformism: Its Modern Social-Epistemological Dimensions
Angel Tzvetkov ....................................................................................... 254
How to Revive Solidarity Today?
Iveta Yakova............................................................................................ 259
Anomic Suicide in Contemporary Bulgarian Society
Petrana Stoykova ..................................................................................... 268
Men on Maternity Leave
Shaban Darakchi...................................................................................... 278

INTRODUCTION
MARIA SERAFIMOVA, STEPHEN HUNT,
AND MARIO MARINOV

The works of Emile Durkheim have always attracted intellectual

interest throughout the world. They have been republished, translated,
interpreted, and remain a constant object of debate, commentary, and
analysis. Durkheim has greatly influenced Ferdinand de Saussure, Claude
Lvy-Strausss structuralism, the comparative Indo-European research of
Georges Dumzil, the system approach of Roland Barthes, even
theoreticians of post-modernity like Michel Foucault, and many others.
His place in the pantheon of social sciences is universally acknowledged.
Yet our image of a brilliant scholar of this stature can, and should, be
constantly enhanced.
Durkheim was able to achieve what Saint-Simon and Auguste Comte
before him were not. He was the first academic sociologist, the first
professor of sociology and, thanks to his forceful presence in academe, he
gave the science of sociology the status of a legitimate, autonomous and
respected university discipline.
Of all Durkheims conceptual frameworks that which is perhaps best
known framed social reality as a moral, social environment consisting of
supra-individual norms for thought and action. Institutions make the
reality of these norms possible. All human behaviour is determined by
institutions and norms that regulate human behaviour. In that sense
Durkheim spoke of artefacts, not natural facts.
Institutions and norms determine the relationships between people and
their collective representations, beliefs, and sentiments. Law, morals and
other spheres of the social order are generated within and by society, that
is, they produce and represent the substance of the social order. Social
reality thus has a supra-individual reality with a constraining effect on
individuals.
Durkheim asserted that the work of the sociologist is different from
that of the statesman. The essential question he raised concerned the
relationships between the individual person and social solidarity. Why is it

Introduction

that the more independent and individually orientated people become, the
more they are closely dependent on society? Here was a new form of
social solidarity, a purely moral phenomenon, which, in itself, was not
accurately observable and especially not measurable.
The only power that can serve as moderator for the selfishness of
individuals is the power of the encompassing group; and the only power
in turn that plays the role of moderator for the selfishness of a group is
that of a wider encompassing group. Indeed, wherever there is social
solidarity, its presence is displayed through perceptible consequences, and
despite its immaterial nature, solidarity does not remain in a purely
potential state.
For this internal fact that escapes us we may substitute an external
fact signifying the former; thus we can study the internal through the
external. Law is such a visible external symbol. Durkheim reaches the
interesting conclusion that penal law is more or less religious in its nature,
for at its core lies a feeling of respect for a force higher than that of
individual persons. Whatever be the particular symbolic form whereby it is
perceived by the mind, it is perceived in any case as a transcendent force,
and the feeling for such an object is precisely what lies at the basis of
religiousness.
The foremost duty of every society is to create a set of morals, but
Durkheim warns that such a task cannot be achieved in the scholars quiet
study
Between 29th-31st May, 2008, the Sociology Department at the Faculty
of Law and History of Southwest University Neofit Rilski held its third
international conference on Sociology and Law; the conference was
dedicated to the 150th anniversary of the birth of Emile Durkheim, the
great classic innovator of sociology.
The three main sessions of the conference were as follows: THE

LAW AS A FORM OF SOCIAL SOLIDARITY, ELEMENTARY

FORMS OF NEW RELIGIOUS LIFE, and DIMENSIONS OF
TOLERANCE. The sessions passed amidst exceptional interest on the
part of the participants and in an atmosphere of cooperation and dialogue.
Presented in this collection are the papers read at the conference by
scholars of different countries and of various institutional background and
worldview, united by the desire to analyze, interpret and present, each
from his/her perspective, the ideas of Emile Durkheim. The authors are
scholars of Sociology, Law, Political Science, History, Religious Studies,
Media Studies, Public Relations from Bulgaria, the United Kingdom,
Slovakia, Macedonia, Italy, France, Brazil, Romania, Russia.

Sociology and Law

Most of the texts deal with the relations between Sociology and Law
and refer to Emile Durkheim's academic heritage in dealing with specific
problems in their respective societies and fields of study.
Topics range from theoretical issues of Socio-Legal Studies and Law,
to analyses of constitutions, case studies from the judicial system and civil
servants. A special attention is given to the study of new religious
movements from a sociological and legal point of view and to Emile
Durkheim's place in the Sociology of Religion. Other topics cover
contemporary ethnic conflict, cyberspace, media, morality, education,
gender studies, etc.
The type of academic readership this book will appeal to includes
sociologists, lawyers, anthropologists, historians, scholars in cultural
studies, religious studies, students, researchers, etc.
The works of the classics of sociology are ever vital components
constituting modernity. Different, new readings of Machiavelli and
Montesquieu, of Rousseau and Voltaire, of Durkheim and Weber, of Freud
and Marx, are always possible. These rich facets of advancing thought
constantly reveal their inexhaustible potential.

PART ONE
THE LAW AS A FORM
OF SOCIAL SOLIDARITY

LEGAL SOCIOLOGY:
ITS MODERN DIMENSIONS
SOFKA MATEEVA

A historical overview of some of the fundamental sociological theories

of the middle of the 19th to the end of the 20th century would show that
problems related to law have always been present in one form or another
and in various degrees of concreteness within the fields addressed by
sociology. The negative attitude to law displayed by some representatives
of early positivism may be explained by the liberal character of their
philosophical, social and political views, which naturally clashed with
conservative attitudes regarding the change and development of the system
of law in those times.
Similarly to alchemy, positivist social theories possess a fundamental
virtue with regard to the development of science. Like the alchemists,
positivists based their thinking on an erroneous methodological approach,
but in their concrete research work they were able to elaborate methods
and techniques of analysis that are still successfully being used today: the
methods of the positivists have proven well adapted to the needs of applied
sociology in all its fields. Unfortunately, positivists were not able to detach
themselves from their deeply ingrained views about the conservative
character of the legislation in force in their times and in previous social
formations. They never overcame the notion that law had always been at
the service of the tyranny whereby those in power imposed upon society
their personal interests and the interests of their own class, social rank, and
family. That is why positivists tended to view law in general in a very
negative light. They failed to perceive the constructive and positive role
that law could play in the life of society when, in place of the despotic
legal order determined by class interests, it became possible to establish
democratic governance and to build up sufficiently reliable mechanisms
for regulating without conflict the public interests and the mutual relations
in society.
The classical thinkers of sociology naturally viewed law as being
connected with society and regarded it as a particular variety of spiritual

Legal Sociology: Its Modern Dimensions

social facts (E. Durkheim), as legally protected interest (R. Jering), as

the human inclination to imitation (G. Tarde). What is important and
noteworthy about these doctrines is that they viewed law as a codified
system of legal norms, as a social phenomenon that performed certain very
specific public functions and interacted with the other social phenomena in
society.
In earlier sociological theories the question of the delimitation of legal
sociology as a separate scientific field had not been raised. This was
natural and understandable, for sociology itself had considerable difficulty
in establishing social science as an independent field.
The Russian scholar S. Muromtsev was the first to categorically assert
that law must be studied as a social phenomenon when examining and
analyzing the causes of its emergence and development. According to him,
dogmatic law can develop successfully only when connected with
sociology. He was even convinced that the theory of law was essentially a
sociological discipline. As for the sociological study of law, S. Muromtsev
clearly asserted this could be pursued only in the framework of a separate
scientific discipline. His views set the beginning of legal sociology as an
independent scientific discipline.
We should immediately stress that, in scientific circles, the separation
and establishment of legal sociology as an interdisciplinary field situated
at the borderline between law and sociology and having points of contact
with nearly all other social sciences, has not been a smooth-going and
unquestioned process. The causes for its problematic status are numerous
and varied, but two of them merit special attention. The first cause is that
law, as a science, but also in practice, is a quite differentiated field, one to
which only the initiated have access, i.e. those professionally engaged in
it. For the majority of people law and the administration of justice are
mostly the activities of law enforcement and judicial organs and
institutions, activities with which people generally endeavour to have as
little contact as possible. In everyday perceptions and with regard to
scholarly partnership and interaction between non-jurist professionals and
the professional group of jurists, there is even today an element of reserve
displayed towards the legal sphere. There is still no full understanding of
the need to understand law as an essential, though certainly not the sole,
regulator of social relationships in the context of modern democratic civil
society.
The second cause is that, regrettably, law is still perceived as
something constant, and not as a dynamically changing normative system,
the mission of which is to assist in the harmonious development of social
relations in the context of contemporary democratic principles and norms

Sofka Mateeva

of governance of social life. This deformed and evidently unfounded view

still provokes reserve in some specialists in the fields of law and sociology
alike, and makes them hesitate to proceed clearly and categorically when
working in such an interdisciplinary field.
In this sense legal sociology, as an independent scientific discipline, is
still far from definitely established. On the one hand a claim has long since
been made for its presence among other independent sciences and social
science disciplines; it can be said to have gained acceptance by the
scientific community. But on the other hand, research in the field of legal
sociology, both at the theoretical and applied level, still does not meet the
needs of society in terms of scope, contents, scale, and depth.
Of course, gradually and consistently, legal sociology has become
firmly established in its theoretical and practical aspect. There is no doubt
it has a sufficiently well-defined field of research, its own research tasks,
and a set of methodological tools corresponding to these tasks.
There is still an on-going debate as to whether it belongs to the field of
law or of sociology. Both viewpoints have their justifications and
arguments. Unquestionably legal sociology deals with law, and in this
perspective it can be defined as a juridical discipline. At the same time it
can be regarded as part of the general field of sociology, inasmuch as it
employs many of the basic methods and research techniques of this
science.
Here it is important to consider another viewpoint, which, if adopted,
may put an end to this obviously unproductive academic debate. This
perspective concerns the assessment of the current needs of social practice
for an active study of the problems that, by definition, belong to the field
of legal sociology. The development of democratic processes in
contemporary society requires that law be viewed as a dynamically
changing system devoted to adequately meeting new social demands when
various social interests are brought into balance and harmonized (unlike
systems where they are crudely imposed).
When this requirement is seriously set in a practical perspective, the
need inevitably arises to expand and enrich the methodology, the set of
topics, and the information provision on which are based the conceptions
and concrete programmes for renewal of the legal norms and principles
currently in force. In that case law will objectively require a wider
interaction (at the theoretical and practical level) not only with sociology,
but with most of the other social sciences and disciplines dealing with
human behaviour in society and with analysis and assessment of social
realities. In this perspective we may estimate as constructive the idea that

Legal Sociology: Its Modern Dimensions

legal sociology is an independent scientific discipline of an interdisciplinary

kind.
It is a known fact that the study of processes and phenomena pertaining
to a given social sphere nearly always has an organic connection with
knowledge of the general and particular laws of social development, as
well as of the borderline problem fields, which, by definition are the
subject of other social sciences and disciplines. That is why, in parallel
with the regularities identified in the given social sphere that is the
concrete object of study, it is almost always necessary to take into account
and analyze other regularities pertaining to the borderline fields. If every
social science or discipline were limited only to the study of its own
narrowly defined field of activity, there would be many blanks left in
social science, and this would impair the overall view of social life in
society and naturally hamper the practical activity of studying social
relationships. In this connection D. Kerimov has stressed that Everyone
who strives for real collaboration between sciences in the framework of a
complex systematic study of his/her own respective science, is forced to
pass through borderline zones, to move through neutral fields towards
his/her partners*.
From this viewpoint legal sociology can be considered an
interdisciplinary field of scientific knowledge that combines the cognitive
resources of jurisprudence and of sociology. In this aspect, appellations
such as legal sociology, sociology of law, juridical sociology, etc.,
can be deemed synonymous.
Although legal sociology is a relatively new scientific field, it has
already achieved, according to A. Podgurecki, one of the international
coordinators and founders of legal sociology, an adequate level of
theoretical maturity and a firm position. Thus it is able to successfully
study the operation of law in its empirical dimensions and formulate
empirically verifiable hypotheses about how law impacts on social reality
and vice versa.
In specialized literature the limits of legal-sociological knowledge are a
fundamental issue: this is an exceptionally important problem, and one
that is still being debated. According to Podgurecki, the main research
topic of legal sociology is legal norms in their connection with moral
norms. This is certainly an important aspect of the field of legal sociology,
but it is definitely not, nor can it be, the only one. Most authors share the
view that there are three directions of research in legal sociology. They
*

Kerimov, D. A. Problems of the general theory of law and state, vol. 4, The state
ruled by law (Moscow, 2 002), 161 (in Russian)

10

Sofka Mateeva

are: 1) the social determination of law; 2) the social mechanism of the

effect of law, and 3) the effectiveness of legislation and administration of
justice. According to the Bulgarian author S. Naumova, the scope of legalsociological research should be considerably wider.
Despite the difference of views between various authors, it is evident
that legal sociology has a wide research field, which offers good
opportunities for theoretical analysis but also for fruitful empirical
research work. Particularly interesting in the theoretical and applied aspect
are issues related to: 1) the study of objective normative structures of
social life and of the mechanisms for normative self-regulation of the
separate social systems; 2) characterizing the legal nature of the social
norms actually functioning in society, norms that need to be legally
regulated; 3) clarifying the social determination of legislation and its social
legitimization; 4) specifying the mechanisms by which social conflicts are
resolved through coordination aided by law of the various existing
interests; and a number of other similar problems.
Regardless of its location whether in the field of law or of sociology
legal sociology is certainly devoted to solving interesting and
exceptionally complicated problems. These problems have arisen as a
result of the changes in social reality, and there is an insistent need that
they be studied in depth and resolved in the interest of social practice.
Hence the issue today is not whether but how specialists in the field of law
and of sociology will organize their collaboration and interaction in order
to respond to the real needs of their time. Any other position on the matter
would be unproductive and would greatly delay the development of social
science in this exceptionally important sphere, development that involves
our understanding the changes brought about by the democratization of
social life today.
The changes in social life within present-day civil society are occurring
in a scope and at a scale never witnessed before in the history of human
civilization. Social sciences, particularly law and sociology, cannot
silently pass by the problems engendered by these changes and leave the
task of resolving them to some future generation of scientists and
specialists. These circumstances afford an exceptional opportunity for
legal sociology to assert itself conclusively as an independent scientific
discipline and to really offer the kind of scientific analyses and research
that is expected of it.

LEGAL-SOCIOLOGICAL PARAMETERS
OF THE FIGHT AGAINST CRIME
AND SOCIAL DEVIANCE
STEFKA NAUMOVA

The problems of crime as a social phenomenon have always been in

the focus of attention of all civilized societies. In modern societies crime
has attained global dimensions and is taxing the resistance capacity of
politicians, legislators, and specialized state organs alike. The emergence
of new forms of criminal behaviour at the end of the 20th and beginning of
the 21st century has even provoked changes in the terminology of
specialists in criminology1and has raised the need for uniting efforts in the
search for adequate methods of counteracting this particularly dangerous
social phenomenon.
In theory and practice adequate clarity is still lacking as to whether it is
for law alone that the new forms of social deviance (especially corruption
and corruption-related crime) are a specific object of research, and, hence,
of a practical strategy for restriction. Many and various problems are
related to crime, which is indisputably a social phenomenon that until
recently remained outside the field of vision of pure legal science (theory
and legislature).
In the following analysis attention is focused on the legal-sociological
aspect of the problem, inasmuch as the purely legal and criminological
aspects of fighting crime have traditionally been set apart. We have nowise
attempted to set in contrast the positivistic-legal and the legal-sociological
1

Increasingly used in contemporary criminological literature are terms such as

globalization of crime, transnationality of modern crime, consolidation of
crime, etc. The reader will find detailed analyses of contemporary forms of
organized crime and research in this area in: Stankov, B. Organized Crime. Sofia:
Albatros Pbls., 2000 (in Bulgarian); Cf. also Boyadjieva, Y. International
Cooperation in Restricting Organized Crime and Money Laundering. Information
Bulletin. Scientific Research Institute of Criminology and Criminal Law at the
Ministry of Internal Affairs. (in Bulgarian)

12

Stefka Naumova

method of study; the aim has been to find common points of contact in the
conceptual and practical applied aspects of the matter. Nor will we
envisage a complementary (as laymen in the field of sociology of law
might see it) empirical analysis of data from concrete research; instead,
this is a conceptual presentation of a scientific thesis in the context of
theoretical legal-sociological analysis. More specifically, crime and its
concrete forms are viewed within the framework of the theory of the social
structure of society, together with its particular set of categories, which are
at times quite different from that of legal positivism. Moreover, legalsociological analysis, having many points in common with the
criminological approach, offers after all the possibility, even though as a
matter of convention in scientific classification, to delimit more clearly the
three basic research spheres: law (the legal approach), criminology (the
criminological approach), and legal sociology (the legal-sociological
approach). Such an approach is also needed for identifying and
distinguishing the basic forms of counteraction against crime and other
forms of social deviance. In this sense legal-sociological analysis is
indisputably the widest conceptual framework for encompassing various
social phenomena, including the phenomenon of crime. Criminology
predominantly studies the conditions and causes of crime; as for law
(criminal and criminal procedure), here the issue can be reduced to the
finding of adequate legislative solutions, inasmuch as penal responsibility
is indeed a very important, but certainly not the only possibility for
fighting crime.

1. Legal-sociological conception of social deviance

The analysis of contemporary forms of crime requires a preliminary
brief overview of the emergence of the notion of social deviance in legalsociological theory and practice.
The representatives of legal-sociological and criminological science
usually indicate Emile Durkheim as the founder of the general conception
of social pathology and social deviance. It is precisely in the framework of
this conception that new elements were later included, such as
corruption, organized crime, Mafia, money-laundering, etc.
Durkheim introduced the concept of anomie, meaning by it a situation in
which the varied functions within the social structure do not work
synchronically. This concept, first presented in De la division du travail
social 2, in its first variant referred to the social division of labour, which
2

Durkheim, Emile. De la division du travail social. Paris: Alka, 1893.

Legal-Sociological Parameters of the Fight Against Crime

and Social Deviance

13

does not produce social solidarity but manifests the rise of conflict
between various functions (or organs). In his later studies Durkheim
described anomie as a condition of society where norms are lacking. In
seeking the causes of social anomie (normlessness), Durkheim looked to
the very structure of society: he tried to identify and classify various social
phenomena within it as normal or pathological. In fact, by applying
his well-known rules of sociological method precisely to the sphere of
law as a basic social fact, Durkheim succeeded in discovering adequate
explanations for the social origin of deviant behaviour. Proceeding from
the belief that law (which he called a social fact) is indeed the
phenomenon with the most intense social impact, Durkheim reached the
conclusion that legal norms could serve as criteria for classifying
behaviour (which he referred to in his terminology as the state of things)
as normal or deviant.3
Mertons model of deviant behaviour is almost entirely based on
Durkheims conception of anomie, but he further develops and enriches it
in view of contemporary characteristics of social structure. Merton agreed
that there are situations where individuals or social groups regard the value
and obligatory characteristics of norms with a decreased degree of respect.
Together with this, he indicated social structure as the factor determining
the motivation of human behaviour. According to Merton there are two
main elements of this structure that exercise pressure or determine the
concrete orientations in the sphere of behaviour. These are the culturally
determined (in sociological terms) goals, and the institutionalized means
for goal attainment.
E. Lemert made a critical analysis of Mertons theory and indicated
that the model proposed by Merton oversimplified the complex process of
choice. Lemert pointed out that individuals in modern society operate with
a great amount of values and norms, which tend to clash with one another.
Moreover, the individual, being simultaneously a member of several
3

Merton, Robert K. Social Structure and Anomie American Sociological

Review, 1938; 3; Merton, R. K. Social Structure and Anomie. 1957; Merton, R. K.
Continuities in the Theory of Social Structure and Anomie, Social Theory and
Social Structure. New York, 1957; Merton, R. K. Anomie, Anomia and Social
Interaction: Context of Deviant Behavior in Clinard, M. B. (ed.) Anomie and
Deviant Behaviour. New York, the Free Press, 1964; Merton, R. K. Social Theory
and Social Structure. Enlarged Edition. (New York: The Free Press, 1968) p. 5861; Merton, R. K. Sociological Ambivalence and Other Essays. (New York: The
Free Press, 1976) p. 125-128; Parsons. T. The Social System. New York, 1951;
Parsons, T., E. A. Shils (eds) Toward a General Theory of Action. New York,
1951.

14

Stefka Naumova

groups with separate value systems, is under constant pressure due to these
differences between values and norms. This contradiction between
interests, values and norms (including legal norms) can be a source of
deviance. Individual behaviour (whether conforming or deviant) is,
according to Lemert, a chance result of the total pressure of the various
groups and their norms. When in a pressure situation, a person rarely
resorts to a plainly deviant course of behaviour. Instead the individual
tends to follow a line of behaviour that holds a potential risk of deviance.4
A. Cohen, who is a proponent of the broad view that social deviance is
any divergence from social norms, attempts to distinguish between social
deviance (a divergence form social norms) and crime (a divergence from
legal norms). He defines social deviance in the context of legalsociological and criminological categories, which inevitably reduce the
analysis to the problem of a distorted legal and moral consciousness.5 In
his studies of the sub-culture of criminals, Cohen stresses the connection
social inadaptability - frustration aggression deviant behaviour.
Unlike Merton in his model, Cohen tries to come down to the empirical
level and present a wide schema of different forms of deviant behaviour:
he includes the legal factor as a component among the mechanisms that
form attitudes and motives of deviant behaviour.
The theory of social deviance is equally attentive to the importance of
the legal factor in the general context of social structure in which the
causes of deviant behaviour are rooted. In this perspective the theory of
social disorganization is drawn closer to the model whereby it is possible
to distinguish more accurately between deviant behaviour and violation of
the law, between social pathology and crime, between concrete criminal
deeds and some new forms of social pathology, which undoubtedly
possess juridical characteristics, but the explanation of which cannot fit
into the framework of purely juridical analysis; the classical example of
such a form is corruption.

2. The legal factor and social deviance

Social conformity is broader than legal conformity. Deviations from
certain social norms are social deviance, but legal conformity is not always
equal to social conformity. At the legal-sociological level it is important to

Lemert, E. Human Deviance, Social Problems and Social Control. New York,
1967
5
Cohen, A. Delinquent Boys. The Culture of the Gang. Glencoe, 1955.

Legal-Sociological Parameters of the Fight Against Crime

and Social Deviance

15

ascertain the mutual connection between the legal factor and the
concrete socially measurable parameters of the phenomenon.
Schematically, this model can be represented thus:

16

Stefka Naumova

By using this model it is easier to identify the social-legal

characteristics and the possible range between the various manifested
forms of social deviance.
We can distinguish three basic categories of social deviance in which
the legal factor is clearly indicated:
A) Forms of deviance that indisputably hold a higher degree of threat
to the public and for which there is no doubt that the traditional legal
responsibility is of a penal kind;
B) Forms of deviance regarding which lawmakers periodically change
their views, moving between tolerant and rigorist attitudes.
C) Forms of deviation of a disputable kind, to which the classical
schema applies of reprehensibility in the perspective of other normative
systems (ethics, religion, customs), but for which the application of penal
responsibility is not the most effective method of counteraction.
Legal-sociological research is focused chiefly on identifying the
specific characteristics of those forms of social deviance for which clear
and unequivocal criteria for legal definition have not yet been established
and hence an adequate strategy for counteraction against their most
dangerous form, crime, has not yet been devised.

3. Social disorganization and pathology of institutions

The theory of criminal behaviour, as part of the theory of social
disorganization, varies within a rather wide range. It is at a much later
stage that the theory came to focus on the problem of the connection
between law and the different manifestations of corrupt behaviour.
We speak of pathology of institutions in cases when the social
disorganization and social deviance have penetrated into certain
government structures, when the holders of power positions in the
different branches (legislative, executive, and judiciary) are a source or a
channel of deviant behaviour. Moreover the scope may vary: ranging from
bureaucracy, to which Weber was the first to draw attention, passing
through white-collar crime6, and encompassing forms of deviance like
6

The concept of white-collar crime is thought to be relatively new in

criminological theory, even though the need for introducing it became obvious as
early as 1907, as Ross pointed out. (Ross, E.A. Sin and Society. Boston: Houghton,
Mifflin, 1907); it was confirmed in the 1930s by Morris (Morris, A. Criminology.
New York: Appleton, 1934), and it acquired the features of a science thanks to E.
Southerland. (Southerland, E. White-collar Criminality. 1940). Cf. also Aubert, V.
White-collar Crime and Social Structure, American Journal of Sociology, 58, p.
263-271.

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and Social Deviance

17

corruption, organized crime (Mafia-type organizations), which is a

conglomerate of institutional and non-institutional forms of social
behaviour, woven into the social structure in such a way that pathology
becomes the norm.
It is not by accident that the Watergate affair seems to have been the
dividing line between the theoretical perspective and the concrete
parameters used in describing corruption as a complex social phenomenon
that, if left uncontrolled, threatens to overturn the structure of society, so
that pathology will be the norm.
It was not very long ago that the pathology of institutions became the
object of both theoretical and empirical analysis. It was not studied earlier,
because in general the functioning of institutions has always contained a
bureaucratic element that can hardly be placed in the category of anomie.
Besides, even if the construction individual-oriented ethics grouporiented ethics is assumed as an initial scheme, it would be hard to find an
objective criterion for determining whether the functioning of a given
institution is normal (corresponding to commonly accepted values) or
pathological.7
It is important to ascertain how legal institutions (in the broadest sense)
can become a source of social deviance or else how they themselves can
contain an element of dysfunction, which leads to growing social deviance
in the legal sphere. But the question remains open regarding the social
characteristics of exercising power. This element goes beyond the purely
juridical analysis of institutional activity.

4. Legal and extra-legal measures for counteracting crime

and social deviance
Social deviance is a characteristic marker of contemporary industrial
society. It is not by accident that in legal-sociological and criminological
literature the term fight, elimination, overcoming, etc., have been
forsaken with respect to crime and other forms of social deviance.
Moreover the parameters of the phenomenon are constantly changing and
legislation itself is faced with a complex dilemma: to criminalize or to decriminalize.
In the legal-sociological aspect it is necessary to establish what the role
of legal and extra-legal mechanisms may be for mastering and controlling
those manifestations of social deviance that threaten the stability and
integrity of society.
7

Podgorecki, A. Patologia dzalania instiucji. (In: Zagadnienia patologii, p. 183).

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Stefka Naumova

Every society has some kind of legal system which, to various degrees,
satisfies public expectations regarding order, justice, and the balancing of
interests. To a great degree society, self-organized as a state, strives to
sustain the principles of the supremacy of the Constitution and of law, and
this serves as the chief guarantee that the sovereign (the people) possesses
defence mechanisms against social anomie. In the context of its legal
interpretation, the question seems elementary: as long as there are
legitimate mechanisms for a likewise legitimate legislation, the risks of
deviance are reduced to a minimum. But this is only seemingly so. Even in
the best organized society, the legitimacy of law can be questioned by the
very creators of law or by those who apply it. In a sociological aspect there
are at least two possible directions for reasoning on the problem. On one
hand the Constitution and the legislation based on it are factors
guaranteeing the legitimate stability of society and avoidance of social
anomie. On the other hand the realities of life produce ever new social
relations, new systems of values, and hence, new forms of social
disorganization and disintegration. Consequently, law can only correct
the possible misbalance, and it does so either preventively or subsequently.
At the concrete juridical level things have an even more pragmatic
dimension. Legislation in itself cannot restrict social deviation as if by
waving a magic wand. What is worse, law itself can at times be a source of
deviance: this may occur in periods of total change (for instance the
transition from a centralized to a market economy), but also in periods of
relative stability, when the clashes of values, hidden from the view of the
large social structures, arise and come to the fore, so that even
smouldering contradictions may lead to a breakdown of the whole social
system. In such cases law is not able to prevent the larger conflict, which
now becomes a secondary source of change; in its turn, change engenders
new relationships and the need for a new legal regulation.
Crime is not merely the accumulation of legally defined deeds in penal
law. This is particularly true with regard to forms of crime like corruption
(which is not simply the sum of passive and active bribery), international
terrorism, mass suicides committed under the influence of religious sects,
etc. This places lawmakers in a complicated situation: they have to find
the distinguishing criterion for achieving a balance between legal and
extra-legal sanctions. There are cases when a legislator changes his stand
many times over regarding certain deeds. As an example, it would suffice
to indicate the all too rigorist attitude long prevalent in the past among
legislators regarding homosexuality. In modern penal laws we see a more
tolerant attitude.

Legal-Sociological Parameters of the Fight Against Crime

and Social Deviance

19

When we refer to law as a source of social deviance, we should have

multiple factors in mind. The existence of a number of legal institutes or
regulations (for instance in the field of tax legislation, regime of licensing,
over-complicated regime of authorization etc.) are preeminent sources of
corruption, tax evasion, or other deviant behaviour.
It is not by accident that in the latest research on social deviance,
poverty is one of the most often discussed problems. In Durkheims view,
poverty is a normal social fact8. According to most of the major
sociological doctrines, it is an element of the social structure, and social
inequality is a condition of the existence of society.9 Opinions are divided
in the legal-sociological doctrines. Poverty (social inequality) is in itself
perceived by some as a pathological phenomenon. According to others
poverty (social inequality) generates a secondary pathology: crime,
alcohol abuse, aggressive behaviour, etc.10 The thesis that economic
factors (poverty in this case) are criminogenic can hardly be empirically
refuted, but in any case research on the issue is continuing. Many studies
focus on the connection between poverty and corruption; it is considered
that the poorer a society, the greater the risk of corruption behaviour. But
there is sufficient proof of the reverse thesis: for instance the sensational
scandals concerning corruption among representatives of the European
Commission or other accusations against well-known politicians in
developed Western countries.

4.1. From conceptual analysis to legal definitions of the basic

forms of social deviance
There are two ways in which legislation can have an impact on the
process of restricting crime and social deviance: by striking the right
8

Durkheim, E. Les regles de la mthode sociologique, p. 47

Considering the phenomenon of poverty in terms of social reintegration, G. Fotev
points out: Poverty can be treated as a pathological social fact if its weight (the
number and degree of poverty) go beyond the social norm and becomes a risk to
the stability of the social order and the constitution of the society in question.
When poverty and social exclusion are perceived as a legitimate and normal social
fact, a theoretical abstraction is made from the purely moral consideration of the
issue. Fotev, G. Crisis of Legitimacy. (Sofia: University Pbls. St. Kliment
Ohridski, Academic Pbls. Prof. Marin Drinov, 1999), p. 200.
10
Cf. Tarkovska, E. In Search of an Underclass in Poland Polish Sociological
Review, 1(125), 1999, p. 3-17; Grotowska-Leder, J. The Permanence of Poor
Status: The Temporal Aspects of Poverty. Polish Sociological Review, 1(125),
1999, p. 17-37.
9

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Stefka Naumova

balance of criminalization and through a wise application of penalties. It is

well-known that the weight of the penalty is not where the re-socializing
effect lies.
What does have great importance for stimulating or restricting social
deviance is the moral norms and values established over the ages, but also
current public opinion, the development of institutions of civil society, the
attained degree of legal consciousness (that of the legislator as well as that
of the people to whom legal norms are addressed).
This is the point of connection between legal decisions, public opinion
and the concrete social-political situation. There is one other essential
element: the need for going beyond the framework of national legislation
to the perspective of European standards. The public interest is considered
to be a generally applicable criterion: this is a sufficiently reliable category
when criminalizing certain deeds defined within the sociology of law as
forms of social pathology.
The criminological aspect of restricting social deviance (especially the
new forms of crime indicated above) has been quite well researched. In the
legal-sociological perspective there are several crucial problems which
indeed make up a relatively clear picture of the specifics of the
sociological method in this sphere. Of course, there is no unbridgeable gap
between the criminological and the legal-sociological methods, but they do
present some differences.
In this connection there is, first of all, the issue of the anticipating role
of legal-sociological analysis for identifying the factors or trends which, at
a given time, provoke a growth of social pathology, of which global crime
is part;
In second place, it is within the framework of legal-sociological
analysis that the issue is set regarding the already well-established models
used for analyzing society, models which can directly be projected onto
modern methods of analyzing crime and other forms of deviance, or can
be used in perfecting penal and penal procedure legislation;
Thirdly, there is the classical issue of the role of public opinion as a
specific manifestation of legal consciousness in assessing crime (the size,
degree of risk for a concrete society, the reversal of values, etc.).
In this respect periodical research serves to a great degree as a
corrective for legislators and for civil society in general.
To the first of these aspects we should refer a number of theoretical
and practically applied achievements of sociology of law, which have
proven their validity immediately or in time. Definitely numbering among
these achievements are the studies on ethnocentrism as a specific
psychological attitude in the framework of the classical division of social

Legal-Sociological Parameters of the Fight Against Crime

and Social Deviance

21

groups into in-groups and out-groups11, an attitude connected with

certain forms of social deviation. Falling within this aspect is the
anticipating legal-sociological analysis on problems of organized crime as
a sociological category, corruption as a social-legal phenomenon, Mafialike groups as a dysfunctional element in the sociological structure, the
growth of drug addiction among minors, violence against children, etc.
Under the second aspect we refer the applicability of categories of
legal sociology to matters of penal law. The categories in question are:
social group, reference group, social stratification, ethnocentrism,
individual legal consciousness, resocialization, and others. The results
obtained in this area are either attempts at introducing these categories in
penal legislation (the penal code and the penal procedure code) or the
creation of adequate legal definitions. Undoubtedly, the penal code itself
can be viewed as a certain hierarchy of values, and in this sense, every
change in this direction reflects a change in public legal consciousness.
Sociology of law has long ago given an unambiguous definition of the
above-mentioned concepts, and, through its specific methods, has studied
their importance for restricting social deviation and crime in the context of
the sociological structure. Much later these concepts were used in the
doctrine of penal law or as legal definitions.
We should also emphasize the importance of the Criminal Law
Convention on Corruption of the Council of Europe (Dec. 12, 1999),
ratified by the Republic of Bulgaria, which, as is well-known, refers to a
number of other forms besides active and passive bribery, and a number of
possible subjects of corruption. Here we should also indicate the activities
of Transparency International, which are unique in structure and extent, as
well as the ever wider measures taken in the framework of national and
international anti-corruption policy. Progress has clearly been made by the
legal defining of the concepts of organized criminal group (the new
section 20 of art. 93 of the Penal Code), human traffic (the new section
IX of Chapter II), by the introduction of probation, a long debated and
analyzed matter in legal-sociological and criminological studies.
The third specific aspect is the study of public opinion as a specific
form of legal consciousness.

11
For more details, cf. Naumova, S. Sociology of Law ( Sofia: Yurispress, 2000),
p. 108ff (in Bulgarian)

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Conclusion
Within the general system of counteracting crime, the specific features
of penal law measures have always been a focus of legal-sociological
studies. However, sociology of law studies the role of legal coercion in the
context of the general concept of social control through law in taking into
account the perpetual modification of the principle ubi societas ibi ius.
This brings to the fore the study of the dynamics of social relationships
that engender the dynamics of the legal system. Without a clear picture of
the state of public and individual legal consciousness, without delineating
the parameters of the connection power -realization of power conformism - deviance, we cannot succeed in creating rational models of
counteraction against those forms of social pathology which, once they
become a norm of conduct, may lead to the total disruption of humanitys
hierarchy of values, which serves as a backbone for society in general.