From Durkheim to Jellinek
A German Origin for a Theory of Penalty Concerned with Religious Feelings?
in Durkheimian StudiesAll currencies in US Dollar
Abstract
In his 1887 report about the positivist science of morals in Germany, Durkheim referred to two books: Der Zweck im Recht by Rudolf von Jhering and Die socialetische Bedeutung von Recht, Unrecht und Strafe by Georg von Jellinek. Despite the absence of commentary from Durkheim about this 1878 book from the ‘young’ Jellinek (later known as a master of public law), the analysis of this dissertation (rejected by the University of Vienna) shows that it contained a claim for a social-science-inspired understanding of crime and penalty and had some points of contact with Durkheim's argumentation, notably about the importance of religious feelings in the social reaction against crimes. The article proposes to deepen this comparison between Jellinek's and Durkheim's books with an investigation about their indirect sources.
Contributor Notes
Jean-Louis Halpérin is a professor of legal history since 1988, successively at the University Lyon III, at the University of Burgundy, and since 2003 at the École normale supérieure—PSL. He is a specialist of French, European, and Asiatic legal history in modern times. Among his recent books, Histoire de l'état des juristes: Allemagne XIXe-XXe siècles (Garnier, 2015) and with Frédéric Audren and Anne-Sophie Chambost, Histoires contemporaines du droit (Dalloz: 2020). ORCID: