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Bad Custom

The Meanings and Uses of a Legal Concept in Premodern Europe

Anthony Perron

The place and function of custom as a species of law—distinguished from custom as simply polite manners or cherished cultural traditions—has long been a source of research and debate among legal theorists and historians. One school of thought, reflecting the authority of written statute in modern jurisprudence, has relegated custom in a juridical sense to “primitive” societies, whereas proper law belongs to a world of state sovereignty. Other scholars have revisited the continuing validity of custom, including a trenchant body of work on the use (and manipulation) of custom in modern colonial regimes. At the same time, some have seen benefits in the acknowledgment of custom as a source of norms. A 2006 collection of articles, for instance, explored ways in which customary law might serve as a better foundation for the sustainable development of natural resources. As David Bederman has written, “Custom can be a signal strength for any legal system—preliterate or literate, primitive or modern.”

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Sue Stedman-Jones

This article concerns Émile Durkheim’s critique of the Action Française as expressed in his seminal articles of 1898, which was an important moment in the Dreyfus Affair, where Durkheim’s active engagement serves to challenge a still widespread view of him as a latter day traditionalist and positivist, He developed epistemological and political arguments against this proto-fascist movement, which have implications for his accounts of nationalism and internationalism.

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Frenchman, Jew, Positivist

Reading the Rules and Mapping Émile Durkheim in Germany

Wiebke Keim

This article investigates German-speaking scholarship’s reception of the programme of scientific sociology that Durkheim presented in The Rules of Sociological Method. It highlights intra-European historical dynamics and academic hierarchies. References to national, cultural, disciplinary and theoretical frames of reference are clearly discernible in the ways the Rules have been read and Durkheim has been mapped. First, his reception was embedded in a complex geometry of power between two nation states during a historical period of competitive nationalism. Second, it was affected by the way he was perceived within networks of academics who occupied unequal geo-cultural positions inside and across nation states. At times, the special location assigned to him as a Jewish intellectual played an important role. Third, his positioning as a positivist within the specific epistemological structuring of sociology is key to understanding how he was perceived east of the Rhine.

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From Neo-Kantianism to Durkheimian Sociology

Hermann Cohen and the Problem of Sacrifice

Stephen Turner

The phenomenon of sacrifice was a major problem in nineteenth-century social thought about religion for a variety of reasons. These surfaced in a spectacular way in a German trial in which the most prominent Jewish philosopher of the century, the neo-Kantian Hermann Cohen, was asked to be an expert witness. The text he produced on the nature of Judaism was widely circulated and influential. It presents what can be taken as the neo-Kantian approach to understanding ritual. But it also reveals the ways in which neo-Kantianism avoided becoming relativistic social science. In this case, it came to the edge and stopped. Cohen’s account is compared to the similar, but ‘empirical’, account of the same material in Marcel Mauss and Henri Hubert, which completed the transition.

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Henrik Egbert

This article illustrates how social structures and behaviours of scientists in the societal sub-system of open science resemble patterns analysed in The Gift, an essay written by Marcel Mauss nearly 100 years ago. The presented analysis goes beyond existing interpretations of gift-giving in science. The latter has mainly focussed on the exchange of knowledge and citations. I argue that The Gift explains also identity, competition, co-opetition, rituals and punishment. Mauss’s Gift is seen as a complementary model to existing economic and sociological approaches regularly used to analyse structures and behaviours in open science. By accentuating such an anthropological approach, I conclude that the Gift provides explanations for the stability and the expansion of the open science community.

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The Gift of The Nation

Marcel Mauss and the Intersocial Turn of Sociology

Francesco Callegaro

In order to question the modernist common sense of mainstream sociology, epitomised today by the charge of methodological nationalism, this article offers an overall reading of Marcel Mauss’s The Nation. Conceived during the Great War and written mainly in 1920, Mauss’s work radically re-examined both the nation and nationalism from a regenerated sociological viewpoint centered on the relations between societies. Distinguishing between partial relations of exchange and total relations of encounter, Mauss came to discover the gift as a total social fact, seeing it as the traditional unconscious spring of the federative dynamics that had to be reactivated in Europe to associate its nations in a great ‘Inter-nation’ and avoid the risk of a new total war. The Nation, by reviving the original ambition of Émile Durkheim’s sociology to be a way rethinking and reshaping the concepts and institutions of modernity, helps us explore the contradictions and pathologies involved in the concept and history of the nation, in a situation currently marked by the return of nationalism and the quest for a social Europe.

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Using Popular Culture to Trace and Assess Political Change

Niko Switek

The German federal election in September 2021 marked a significant transformation for German politics. As Chancellor Angela Merkel decided not to run again, the election spelled the end of her 16-year tenure; it also signaled a major shift in the German party system. The right-populist Alternative for Germany (AfD) entered the Bundestag again after their first entry in 2017, implying—for the first time since 1949—the establishment and sustained parliamentary presence of a party on the national level to the (far-)right of the Christian Democrats. The challenges facing the new parliament and government after the election are paramount. The climate crisis looms as large as ever. With the exception of the AfD, all German parties (and a distinct majority of voters) see this as the most pressing issue to tackle. However, the scope of action will be limited as the extensive state debt accumulated through covid-19 relief measures exerts pressure on the specific German model of social market economy. Finally, the international environment has seen drastic changes in the last years: While the election of u.s. President Joe Biden as successor to Donald Trump implies a return to normal for transatlantic relations, the uk exit from the eu shifts the balance between the remaining member states. After the Euro, refugee, and pandemic crises, European solidarity is strained, complicating Germany’s role as the eu’s “reluctant hegemon” or “gentle giant.” This reluctance or restraint connotes far more than a strategic policy choice: it is deeply rooted in the German history of the twentieth century that witnessed the cruelty and atrocities of the Nazi regime.

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Matthieu Béra

This article presents the sociological typology of crimes developed by Durkheim for his course in criminal sociology of 1892–1893, of which a complete set of notes by his nephew and student Mauss was found among descendants in 2018. It can be broken down into four types of crimes: ataxic (theft, vagrancy), altruistic (homicide), alcoholic (blows and wounds, insults), anomic (fraudulent bankruptcy, swindling). This original typology in many ways announced the typology of suicides that would appear in 1897, and shows Durkheim’s sociological theory at that time, while he was defending his thesis in 1893, at the end of that academic year. It sheds new light on the notions of regulation and integration and suggests the articulation between collective representations and social life, while Durkheim has not yet had his “revelation” (1894–1895).

Cet article présente la typologie sociologique des crimes élaborée par Durkheim pour son cours de sociologie criminelle de 1892–1893 dont un jeu de notes complet de son neveu et étudiant Mauss a été retrouvé chez des descendants en 2018. Elle se décompose en quatre types ou espèces de crimes : ataxiques (vols, vagabondage), altruistes (homicides), alcooliques (injures et coups et blessures) et anomiques. Cette typologie inédite préfigure, sur de nombreux aspects, la typologie des suicides qui paraîtra en 1897, et donne à voir la théorie sociologique de Durkheim à cet instant, alors qu’il soutient sa thèse à la fin de cette même année universitaire. Elle éclaire d’un nouveau jour les notions de régulation et d’intégration, alors à l’état de gestation, et donne à penser sur l’articulation entre les représentations collectives et la vie sociale, alors que Durkheim n’a pas encore eu sa « révélation » pour mener à bien son programme de sociologie religieuse (1894–1895).

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Leo Coleman

Bronisław Malinowski sought throughout his career to make a scientific contribution to understanding and reforming the international order by making analogies with ‘primitive’ societies. His ethnographic material was important to Marcel Mauss’s internationalist project in The Gift, and can still provide lessons in internationalism. This article examines Malinowski’s ethnographic figuration of ‘the evolution of primitive international law’, and documents a set of intellectual exchanges between him and Mauss. This illuminates an unexpected avenue of Durkheimian influence on British social anthropology and situates Malinowski in contemporary imperial and internationalist debates. Despite Malinowski’s early criticism of Émile Durkheim’s account of ‘collective ideas’, his later writing shows the (unacknowledged) influence of Mauss’s understandings of obligation and intersocial exchange. Unearthing the terms of this exchange between Malinowski and Mauss helps to recover the central normative lesson of the former’s final book and his ethnographic work as a whole – namely, that sovereignty should be dethroned as an organising principle of international order in favour of intersocial exchange and the obligations it produces.

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‘Nothing Is Less Universal than the Idea of Race’

Alfred Métraux, American Social Science and UNESCO’s Anti-Racist Campaign in 1950s Paris

Alice L. Conklin

In 1950, the cultural anthropologist Alfred Métraux, a student of Marcel Mauss, was appointed to head a new Race Bureau at UNESCO in Paris whose mission was to combat racism with the tools of social science. Métraux had worked in the Americas since the 1930s, and his appointment allowed French social scientists to join the global struggle to remove prejudice ‘from the minds of men’. To what extent did French scholars help shape Métraux’s efforts, given that at the time American sociologists and social psychologists dominated the study of race relations? Booklets commissioned by UNESCO and authored by French and American scientists in the early 1950s suggest that linguistic and conceptual barriers made cross-national discussions of race difficult, but not impossible. Thanks in part to Métraux’s campaign, the social scientific study of race relations in post-war France began earlier than is typically remembered.