Responsibility: A Study in Sociology

286 Pages·1978·10.928 MB·English

by  Paul Fauconnet

RESPONSIBILITY
A STUDY IN SOCIOLOGY
by
PAUL FAUCONNET
translated by
WILLIAM JEFFREY, Jr.

TRANSLATOR'S PREFACE
The whole enterprise whose ultimate product now lies before the
reader began some years ago in my irritation at a dictum of the late
Sir Henry Sumner Maine. In delivering the Rede Lecture for 1875, at
the Uciversity of Cambridge, Maine had remarked: "Except the blind
forces of Nature, nothing moves in this world which is not Greek in
its origin." My prompt reaction to this piece of overweening Victorian
certitude was "Rubbish!" The Anglo-American common law system is
something which "moves in this world", yet I am quite as certain as
Sir Henry that our legal system is not "Greek in its origin." Never-
theless, the infection had begun its insidious work.
The Greeks' unquestioned excellence in their literature, their
drama, and their historians, however, prompted me to wonder, What
was the ancient Greek legal system like? With the exception of some
fragmentary survivals at unusually high levels, eg., the very con-
cept of law itself, the ancient Greek legal system has left no dis-
cernible traces at the present day. On the other hand, I felt certain,
any society which achieved the civilizational level of the ancient
Greeks must have had a viable, functioning legal system. I began
looking around and reading.
In the course of this exploration, encounter with the many writings
of the late lamented Louis Gernet was inevitable. The title of one of
his essays caught my attention: "Time in archaic forms of law." In one
sectica of this paper Gernet discusses ancient mechanisms of proof,
particularly the effect of the flagrant quality in a particular delict:
"A delict marked by flagrancy gives rise, by that very fact, to an im-
mediate execution (death or enslavement). This continuity is essential:
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one does not prosecute or execute when there has been a lapse of time."
And then: "In this we can perceive and, as a result of Fauconnet's
analyses, more thoroughly understand a positive ideal of the criminal
law, namely, that the sanction forms an unbroken unity with the delic-
tual act."
Now, any scholar who has demonstrated--or even seriously inquired
into the possibility--that "the sanction forms an unbroken unity with
the delictual act" has done something I very much want to know more
about. Curiously Gernet had no footnote citation to "Fauconnet's
analyses," which suggested to me that Fauconnet's work was so well-
known and familiar as to require no ctiation. That may be the contem-
porary position in France, but in this country it meant some further
searching. This I did; the ponderously complex American inter-library
loan system functioned to great effect; and my decision to translate
finally crystallized.
2
Regardless of its intensity, one reader's pique at some lecturer's
remark is hardly a sufficient warrant for translating any book-length
work, let alone a book which is more than sixty years old. There must
be other "reasons" and, if the reader will bear with this translator
briefly, their formulation will perhaps serve the additional purpose
of confirming the reader in his decision to read Fauconnet's book.
Since the turn of the present century there has existed in the
United States a current, or an under-current, of interest in the scholar-
ly work of Emile Durkheim, the great French sociologist. This current
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of interest has been supported by--indeed, very largely manifested in--
translations of Durkheim's works into English. Our national track record
is a curious one. Of Durkheim's four book-length studies, the last was
translated first: the Elementary Forms of the Religious Life (1912)
(translated by J. Swain in 1915). The famous Division of Labor (1893)
came out in 1933, followed by the Rules of Sociological Method (1895)
in 1938. Not until 1951 was Durkheim's fourth book, Suicide (1897) put
into English, almost sixty years after the French original had appeared.
When I read Fauconnet's preface, I perceived at once the opportun-
ity of "continuing" the current of translating Durkheim into English.
True, Responsibility was not written by Durkheim, but its author acknow-
ledged the master's contribution. This would include not only the man-
uscript of Durkheim's Bordeaux lectures, but also the "contribution in
any writing supervised by the master, particularly a book which they had
planned to revise together.
The book's subtitle is "A study in sociology." This suggested to me
an interesting not to say different perspective, when appraised in the
light of the contemporary American usage of "sociology." There seemed an
opportunity to present once again the fascinating question of contrasting
traditions in sociological studies--the Continental and the American--
and the equally intriguing question whether the two traditions have any-
thing to say or to contribute to one another. Putting Fauconnet into
English would at least facilitate exploration of these questions on this
side of the Atlantic.
This "comparative" point just mentioned has other dimensions which
seem worth prefatory mention. Durkheim's use of legal data requires no
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further emphasis at this point. One of his principal methodological
rules, as the reader is perhaps aware, calls for a sufficiently broad
spectrum of empirical data in both spatial and temporal terms to ground,
with acceptable firmness, conclusions in whatever study in sociology
is undertaken. These two considerations come together in a field of
scholarship which has crystallized or matured since Durkheim's day:
comparative law or, if the reader should be troubled by any "purist"
considerations, comparative legal studies. "Responsibility" as
studied by Fauconnet means "criminal responsibility" and this, in
turn, necessarily involves "legal" data. The "coverage" exhibited by
Fauconnet's data appears to be broader than that incorporated in many
contemporary "sociological" studies, and this again is a point present-
ing the problem of contrasting traditions in scholarship.
In addition to the "comparative" and "Durkheimian" aspects briefly
mentioned above, Fauconnet's book--or so it seems to the translator--
makes another contribution. Whatever the reason or reasons may have
been in the recent past, "history", taken in its broad meaning, has not
been widely employed in sociological analysis. Quite obviously this
is not the place to become entangled in the "functional-structural"
debate. Fauconnet's work does, however, appear to the present writer
to offer a refreshingly different perspective, tracing as he does over
long ti-e-periods the broad sweep of ideas about "responsibility."
Some of his "history" may have been out-dated by later scholarly work--
some even may have been shown to be quite wrong--but Fauconnet's exam-
ple stands as an example of what scholars can do when they pay appro-
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priate attention to the historical aspects of the subject of their
researches.
3
I have reserved to this final position what I believe to be
another contribution in Fauconnet's work, and it is this: to the
corpus of materials in English on what is today labelled the "sociol-
ogy of law" this book constitutes a major addition. Whatever the under-
lying cause, the field of "sociology of law" is today exploding in what
appears to be all directions at once. I take it, however, that at
least one task for the sociology of law is to direct our attention to,
and study the many difficult problems involved in, locating--or re-
locating--legal rules in their societal context. Whatever else may be
involved, if sociology of law allocates these problems no attention or
effort, both "sociology" and "law" will be very considerably poorer.
4
Not unaware of the undesirability of a translator coming between
the impatient reader and the text, this translator has two relatively
small technical points on which to comment.
The first of these is the French word patient, a term used by
Fauconnet in the text here translated. I found it impossible to bring
myself to use the English "patient"I in translating the French. Despite
the word's unimpeachable literality, its use seemed to me to result
in unidiomatic English, with too-heavy "clinical overtones." I have
therefore resorted to the lawyer's thesaurus, and come up with sanc-
tionee, by analogy to "mortgagee," "devisee," or "bailee." The reader,
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I believe, will find the initial shock of this coinage wearing off
rapidly, and after a few repetitions, the term will be found to be a
perfectly natural member of the cluster under "sanction": "sanctioner,"
"to sanction," and "the sanction."
The other term is the Durkheimian representation. Once more, I
found the literal English equivalent generating rather unclear, if not
unidiomatic, sentences. Nor did it seem to me that italics or quotation
marks would serve my turn. What I felt was needed was a term or terms
which would emphasize both the "imaged" quality and the "intellectual"
or "conceptual" quality in representation. I have, therefore, chosen to
use "conceptualized image". Whatever "angularity" the chosen term may
unfortunately present to the reader, I judged its use would be easier
on the reader than the lacerated sight or nerves produced by recurrent
italics or reiterated quotation marks.
5
I close this prologue by expressing here my best thanks to those
of my friends and colleagues who have in various ways aided, abetted,
or encouraged me during this lengthy project. Without them, I should
never have completed the work. Paul Fauconnet's position and reputation
are secure; for the imperfections of this English version, I am alone
responsible.
PREFACE
:2ile Durkheim discussed responsibility in four lectures of his
course on "The Theory of Sanctions" presented in 1894 in the Faculty
of Letters at Bordeaux. When he suggested to me that I resume the
subject, he gave me the manuscript of his lectures. In addition to
this, I am indebted to Durkheim for my entire training as a sociolo-
gist. This is only to say that whatever of value is to be found in
this volume comes, directly or indirectly, from Durkheim. The authority
of his name, however, will not cloak the defects of my work. Together,
we had hoped to rework and improve it, but the World War and his pre-
mature death did not permit this.
I owe much to the counsel of Marcel Mauss, Directeur d'Etudes at
the Ecole des Hautes Etudes, who has kindly read my manuscript.
The work was concluded in 1914. With only a few exceptions, I
have not cited books published after that date.
PAUL FAUCONNET
TABLE OF CONTENTS
Preface .
INTRODUCTION
PART ONE. A DESCRIPTION OF RESPONSIBILITY
Chapter 1 The Responsible Subjects . ......
2 The Situations which Engender Responsibility
PART TWO. AN ANALYSIS OF RESPONSIBILITY
A. THE PRINCIPAL FACTOR AND THE FUNDAMENTAL FORMS
3 A Critical Examination of Doctrines
4 The Rationale of Responsibility . . . .
5 The Nature of Responsibility
6 The Function of Responsibility . . . .
B. THE SECONDARY FACTORS AND FORMS
7 The Influence of the Sanctionee on the
Sanction and on the-Crime . . . . .
8 Individual Responsibility
9 The Spiritualization of Responsibility .
APPENDIX: The Sentiment of Responsibility and the
Sentiment of Liberty
BIBLIOGRAPHY