Between facts and wills: Tönnies,Durkheim,and the sociological critique of modern obligation

The contents and consequences of a dispute

Durkheim’s reading begins by distinguishing between Gemeinschaft und Gesellschaft in a quite careful and positive way. Nevertheless, his interpretation seems to miss the centrality of the notion of will in which, as Tönnies points out, “ consists the whole thrust of this treatise” (Tönnies, 2001: 95) and that represents the theoretical foundation of his sociological theory.

According to Durkheim, Tönnies’ notion of community is characterized by an absence of distinction between the parts composing it. Community thus corresponds to communism – understood as a grounding type of socialization, not as a political regime – in its most realized version because of this abolition of individuality. The consent defining the very notion of community – Durkheim recalls that Tönnies uses the Latin expression (consensus) – proceeds every forms of contract and deliberation, and this cohesion finds its source in blood relationships. Community has a natural origin; it is an organic concept. Family is the primary type of community, but there are other examples such as the communalization of space in the village, neighborhood social relations, associations, and corporations. In community, property is shared, and thus, the contract has no reason to exist. Thus, since social relations are based on natural and spontaneous agreement of individuals, according to Durkheim’s reading of Tönnies, we can say that there is no individual will in community: “ The life of the group is not a work of individual wills but is completely directed by group habits, customs, and traditions” (Durkheim 1975 [1889]: 385).

If Tönnies’ community can be compared to the notion of collective used by Hegel – what Durkheim calls a “ mystic concept of the State” in his Professional Ethics and Civic Morals (Durkheim, 2003: 64) – his society, according to Durkheim, is made of atomized individuals and should be compared to Bentham’s individualism and Spencer’s conception of social relations in industrial societies.

The question Durkheim poses is, then, to understand how society can emerge from community in the passage from the traditional to the modern world. Durkheim is criticizing what he sees as Tönnies’ implicit philosophy of history. How can we explain the emergence of the free and individual wills characteristic of modern societies? Durkheim finds in Community and Society a morphological answer to this question. The emergence of individual will corresponds to the geographical extension of exchanges, to the externalization of social relations, and to the emergence of urban milieus characterized by the passage from the village to the city. The morphological transformation of social life would naturally produce a pluralization of social wills that previously were unified via communitarian relations.

According to Durkheim, Tönnies proposed a scheme of philosophy of history indebted to Spencer’s account of industrialization and Sumner Henry Maine’s juridical and anthropological evolution from status to contract. Tönnies’ society, characterized by atomic individualism, seems to Durkheim entirely dependent on the State, which regulates its inescapable anomie via the monopoly of power. In line with Hobbes’ conception of the State, Tönnies would have conceived it as purely artificial. At the end of his review, Durkheim puts into evidence his distance from Tönnies’ perspective. For Durkheim, the quasi-ontological opposition between community and society, via the contrast between a natural and an artificial condition, does not plausibly explain the passage to modernity. Society, says Durkheim, 4 years before the publication of The Division of Social Labour, is not “ less organic” than community, and as Durkheim suggests, we would need an entire book to explain this specific aspect.

According to Durkheim, Tönnies has not been able to understand the very nature of society because he has followed a dialectical method, the same method, says Durkheim (1973): “so dear to the German logician” (p. 1198). Instead of this dialectical approach, Durkheim says, one should use the inductive method of the experimental sciences, recovering the moral life hidden within the customs and laws of modern societies.

We can find Tönnies’ ([1898] 1929) first response to Durkheim’s critique in the third volume of his Soziologische Studien und Kritiken. It is not surprising that Tönnies organizes his defence by starting with the fact that, according to his perspective, all social phenomena are mental phenomena grounded on human will. This is the conceptual ground of the theory of Community and Society and more generally of all its Rein Soziologie. The social forms of community and society are grounded on two specific kinds of wills: the natural will (Wesenwille) and the arbitrary will (Kürwille) (Bond, 2013: 15–39).

According to Tönnies, this observation is what allows him to respond to Durkheim’s main concern, the “ evolution” from one form of collective organization to another, the historical passage from community to society. Tönnies clarifies that he has never thought about the passage to modernity in purely ontological terms because he characterizes both community and society in essentially reflexive terms. Neither community or society can be distinguished as things; rather, they should be seen as “forms of volition” by which we can define different kinds of social relations.

The passage to the modern world is then a transformation of the ensemble of types of thoughts (Gesamtdenkungsart) supported by the increase in the quantity and the extension of social relations, that is, by their morphology. Nevertheless, this remains a change of forms of volition and then of forms of understanding and representation. According to Tönnies, the passage to the modern world is neither purely morphological nor concerned with a collective deliberation (i.e. the contractual hypothesis). From this perspective, Tönnies addresses the second criticism of Durkheim, according to which the State, which has a monopoly on power, would be the main guarantee of social order, regulating the natural anomie of individualistic, liberal societies. Nevertheless, according to Tönnies, the State is not the concept that allows the existence of modern society, but the reverse: it is because of a different articulation of wills in modern society, not because of a different (intellectual) representation of social relations, that the State arises in modern society.

Two more elements are at our disposal for this analysis of Durkheim’s and Tönnies’ reviews and comments: Tönnies’ reviews of The Division of Social Labour and the Rules of Sociological Method. After the “surprise” of seeing Durkheim’s use of the notions of mechanic and organic in his Division of Social Labour, Tönnies opposes Paul Barth’s suggestion that Durkheim and he used in an inverted way the same notions – antinomy famously one of the most common forms of canonization in French and German sociology – opposing Durkheim’s progressive optimism to Tönnies’ social pessimism. ² According to Tönnies, once again, we should not distinguish between the nature of social forms but instead between two different forms of association, that is, between types of consciousness and “forms of human will.”

These forms of human will are equally positive; nevertheless – and on this point, Tönnies underlines his distance from Durkheim – social change can be understood as a kind of “emanation” from an essential form: the natural will (Wesenwille):

From the point of view of natural will, every kind of thought […] is nothing else then an emanation and a specific expression of its general nature. In parallel, society is nothing else then a specific state of community and it can’t get entirely rid of it, neither it can just stand on itself.

If, then, Tönnies defends the idea that the type of consciousness (and will) defines the very nature of social aggregation (community and society), he conserves a dimension that we could call metaphysical, inspired by Spinozist thought (Tönnies, 2016), for which community represents the esse objectivum (the objective being) of social formations.

According to Durkheim, Tönnies cannot conceive the true nature of social relations in society because he defends a purely atomistic conception of them and thus cannot define what he considers the main point of sociological normativity, that is, the distinction between the normal and the pathological. Tönnies, however, turns this critique back onto Durkheim by pointing out that when Durkheim makes a natural distinction between mechanic and organic solidarity, between modern and pre-modern solidarity, he reifies their opposition. The division of labour and the idea of organic solidarity have, then, to be understood according to Tönnies in strong continuity with Spencerian organicism.

The second review that Tönnies dedicated to The Rules of Sociological Method is mostly sympathetic to Durkheim. Nevertheless, his understanding of the methodological issues exposed by Durkheim remains quite partial. Tönnies affirms that what the French sociologist calls a “social fact” corresponds to what he calls “social will.” Against Tarde’s critique of Durkheim objectivism, Tönnies affirms that Tarde does not understand that the formation of concepts, similar to that of the “social fact,” is a main methodological issue, but he goes on to admit that Durkheimiam sociology lacks psychological insight because of his failure to recognize that the social facts are voluntary facts.

We can now see how Tönnies’ reading of Durkheim is characterized by a kind of oscillation. Even if a “social fact” seems to correspond to what he calls “social will,” that is, the social fact has to be considered as the grounding reality of social analysis, this concept, according to Tönnies, does not take into consideration the role of intentionality (or desire) in making obligations. Nevertheless, we know that Durkheim answers this criticism in a note that he added in the second edition of The Rules of Sociological Method. I will come back to this point in a second part of this article, but for now, this is the key idea I want to focus:

The coercive power that we attribute to the social fact represents so small a part of its totality that it can equally well display the opposite characteristic. For, while institutions bear down upon us, we nevertheless cling to them; they impose obligations upon us, and yet we love them; they place constraints upon us, and yet we find satisfaction in the way they function, and in that very constraint. This antithesis is one that moralists have often pointed out as existing between the two notions of the good and of duty, which express two different aspects, but both equally real, of moral life. Now there are perhaps no collective practices which do not exert this dual influence upon us, which, moreover, is only apparent in contradiction.

But even if Tönnies can distinguish the notion of “social fact” from a naive positivism, he never read this note in the second preface of Durkheim’s main methodological work, and he never acknowledged that Durkheim refers to a desire beyond the constrictive power of social facts (“we cling to them”), that is, he speaks of a desire experienced by individuals in social life within constrictions. This, properly speaking, is what makes the duality of moral life for Durkheim (Karsenti, 2005).

Tönnies develops his review by recalling how Durkheim wanted to overcome contractual theory and natural law individualism. He acknowledges that Durkheim’s work, unlike Tarde’s, develops a true definition of the social considered as a new object that cannot be thought either in a purely naturalist or in a purely artificialist way. Nevertheless, according to the German sociologist, Durkheim fails to properly define what the social is. To fill this gap, Tönnies proposes in the conclusion a definition of the social in terms of reciprocal interaction perceived by the individuals as real even if they are just representations.

We can now summarize the theoretical divergences in the exchanges between Durkheim and Tönnies. We can classify Durkheim’s criticism as a political, an ontological, and a methodological critique:

On the other side, Tönnies’ rebuttal consists of the following:

This mutual criticism of Durkheim and Tönnies has been responsible for not only their reception, but it has also influenced the reception of French and German sociology more broadly. The reciprocal denunciation of an ontology (Durkheim’s organicism and Tönnies’ individualism), unable to focus on the very nature of modern society, is one of the classical topoi of it. Nevertheless, both criticisms actually reveal the incapacity of the antagonists to see what was at stake in the other’s project.

According to Durkheim, Tönnies essentially proposed a conception of modern individualism, one that is unable to understand what is properly social in it because it is based on the ideological opposition between pre-modern social relations (communitarian) and modern ones (societal). Nevertheless, this criticism does not take into account the fact that according to Tönnies only social forms are grounded on different forms of social will. To put it differently, according to Tönnies, no social form (not community and not society) exists in “reality”; rather, these are, first, specific forms of consciousness, that is, in Tönnies’ language, specific forms of social will.

On the other side, Tönnies interprets the distinction between mechanical and organic solidarity as an ontological opposition deriving from Spencer. Durkheim, refusing every psychological characterization, would not be able to acknowledge what is intentional in sanctions, insisting instead on the externality of social facts. Durkheim’s readers know well how, even before Durkheim’s 1895, there was already an ambivalence about sanctions and desires at the core of his sociological reflection. At the same time, though, we have to emphasize that this change introduced by Durkheim in the second preface of The Rules of Sociological Method was unknown to Tönnies.

It seems then that Durkheim’s and Tönnies’ mutual criticism appears to miss what is actually a shared critical issue in their theories: a sociological reformulation of the concept of obligation able to overcome both contractual voluntarism and natural law individualism. To understand this issue properly, in the next section I will try to take seriously Tönnies’ statement that he would have used the term social will for what Durkheim defined as social fact.

Sociology, obligation, and state: Two answers for a same issue

My perspective, in order to understand what is at stake in the relation between the two sociologists, is based on the conviction that the common critical aim of Durkheim’s and Tönnies’ sociologies can be found only by focusing on what at first sight seems to be their main epistemological disagreement. This disagreement primarily concerns the nature of the constraint interpreted by Tönnies as a dimension that cannot make explicit the purposive character of social phenomena as well as Durkheim’s critique of Tönnies sociology as having an individualist and natural-law-based understanding of the modern social order. What is at stake here is the opposition between social fact and social will.

Nevertheless, I would argue that the divergence between Durkheim and Tönnies is basically grounded on a crucial preliminary agreement. This agreement consists, critically, of two shared understandings, one negative and one positive. The negative lies in their shared assumption that the way modern political thought, from Hobbes to Kant, has reflected on the nature of moral obligations, in terms of both a social contract and a prescriptive (moral) natural law, is based on faulty assumptions. Modern philosophical reflection on obligation, because it has dissociated the moral sphere from the juridical sphere, has disarticulated the intentionality of action (the fact that we act because we want and we desire something) from the normativity of law (its mandatory and constraining character). ³ The positive commonality is that both Durkheim and Tönnies assume that sociology’s task should be rethinking the lost unity of moral intentionality and law in order to produce a sociological understanding of obligation. ⁴ This new form of understanding, according to both authors, would inescapably change the philosophical conception of the main modern political concepts, particularly the key concept of modern political theory, that of the State. Simultaneously, both authors critique what they consider the reductionist manner by which, in the aftermath of French revolution, historicism and political economy attempted to address the failure of the natural law and social contract traditions, that is, by trying to bypass them and deny any intentionality to obligation, rather than understanding it either in terms of the maximization and spontaneous convergence of individual interests or in terms of the historical sedimentation of customary rules deprived of any normative contents.

This does not mean that sociology has represented, as recently suggested by some scholars, a renewal of the natural law tradition, given that natural law has been one of the main polemical targets of sociological critique (Chernilo, 2013). ⁵ Nevertheless, sociology, reflecting on the double crisis of natural law tradition on one side and of nineteenth-century reductionism on the other, aimed to establish a different understanding of moral and juridical normativity. In order to elaborate this critique, sociology has radically interrogated the two main instances constituting moral obligation: the will (as well as desires) and the law (as well as norms). We can see how the criticisms of Durkheim’s constraining character of social facts by Tönnies, along with his overlooking of Tönnies’ notion of social, will paradoxically reveal that for both authors the sociological re-articulation of will and law, that is, to offer a viable conception of obligation that is neither individualistic nor reductionist, represents the most compelling task of sociological theory.

Notoriously, the notion of constraint represents for Durkheim the reason he proposes that sociology should become a new science of obligation because, as he said in The Division of Social Labor, “He who speaks of obligation speaks at the same time of constraint” (Durkheim, 1984 [1893]: 43). Nevertheless, constraint, according to Durkheim, would not be able to explain by itself what an obligation is. Rather, constraint represents the way the sociologist can determine “the facts that science must deal with” (Durkheim, 2014: 147). Constraint is the symptom able to reveal the existence of social facts and thus to observe human morality objectivized in law and customs. Nevertheless, as we have previously observed via the quotation added by Durkheim in the second edition of the Rules of sociological Method, constraint establishes an ambivalent relation toward subjective intentionality, that is, social facts are mandatory, but they are also wanted and desired by subjects, as Durkheim explains thoroughly in “La détermination du fait moral” and more generally in most of his work. Law, considered as a rule of action, is simultaneously undergone and desired; it is made of sanctions and wishes. Society as a totality of moral facts is sociologically understandable by its internal variations of desire and constraints.

The critical consequences of the sociological understanding of the notion of obligation concern the entire sociology of Durkheim, but what is relevant in order to understand the convergence with Tönnies’ thought is the critique that he addresses to the main natural law conceptual categories.

Durkheim points out that, according to the theorists of natural law, social order depends on will, but without possible mediations between the individual and the State. Consequently, the political order has been conceived in terms of power constraining individual action, with no convincing justification about the reasons for individual obedience to the law. Natural law theorists invented the modern problem of obligation, furnishing an unbearable, contradicting solution:

Neither Hobbes nor Rousseau appear to have noticed the complete contradiction that exists in admitting that the individual is himself the creator of a machine whose essential role is to exercise domination and constraint over him. Alternatively, it may have seemed to them that, in order to get rid of this contradiction, it was sufficient to conceal it from the eyes of its victims by the skilful device of the social contract.

Differently, political economy individualism refused to furnish a theory of obligation. The composition of interests follows a natural order, with no need of any form of moral constraint. Obligation, sociologically understood, consists instead in the possibility of defining constraint in a way that both uses and expands natural law theories. As in these theories, constraint is determined by will, but unlike them, this volition does not emerge from individual will but from the collective dimension of social facts, whose sources drive us back to religion, allowing sociologists to understand the very nature of moral authority. Durkheim works from this assumption to say that social facts have to be considered as a way to rearticulate the relation between will and law at work in moral life, which natural law tradition was unable to understand because it was based on an incorrect model of individualism.

Durkheim’s treatment of the history of the institution of contract throughout modernity is a very representative example of this critical attitude toward natural law. Different from utilitarian and Marxian criticism, Durkheim (2003) accepts that property, as stated by Kant, is grounded on will in the first instance (pp. 126–127). The institution of contract, being based on the exchange of properties, would be based on will as well. But what sociology of religion allows him to understand is that the will, considered as a moral fact, emerged through religious ritual and practices that liberate property from the ownership of the Gods. From this perspective, the history of the modern contractual institution can be understood as a way to let individual wills become more and more autonomous:

The idea governing this development is that the consent is truly itself, and binds truly and absolutely the one who consents, only on condition that it has been freely given. Anything that lessens the liberty of the contracting party, lessens the binding force of the contract.

The institution of contract guarantees the consensual promise of the contractors without any reference to a third element that ensures its validity, such as in pre-modern forms of contracts, the “ritual,” and the “real” contract. For this reason, as stated by Durkheim, the consensual contract represents a “revolutionary innovation in the law” (Durkheim, 2003: 203).

In this sense, as stated since The Division of Labour in Society, “The contract is indeed the supreme legal expression of cooperation” (Durkheim, 1984: 79). By interpreting will as a moral fact, sociology allows a different understanding of contractual institutions and anticipates some of the transformations that seem to be embedded in it. The passage from the consensual contract to the “just contract” to which the last chapter of Durkheim’s Civic Morals and Professional Ethics is devoted is basically based on the observation that the emergence of social rights was catalyzed by the changing character of cooperation in modern societies. The task of sociology is then to understand this new understanding of cooperation embedded in morals and law understood as social facts, giving voice to new expectations of justice emerging from societies themselves imagining new institutions able to fulfill these expectations.

Thus, sociology, according to Durkheim, must, without violating its objectivist and scientific ambition, be ethical and political and able to transform our understanding of modern political concepts, which inevitably produces a critique of the way philosophical natural law has understood them. The main consequence of this re-articulation of the notion of will and law promoted by sociology would then be a new understanding of the notion of State. Instead of the concept of obligation, previously centered via the relation between individual and sovereign, sociology allows for a rethinking of the core of modern political association and thus the relation between justice and institutions. Rethinking the entire social life in terms of moral institutions, sociology makes it possible to conceptualize the State itself not in terms of a sovereign power but in terms of a “political society.” This move allows Durkheim (2003) to distinguish between the State understood in terms of public services, from the State understood as a moral institution where specific kind of collective representations is formed and a specific kind of collective consciousness – “higher, clearer and with a more vivid sense of itself” – arises:

So we may say that there is a collective psychic life, but this life is not diffused throughout the entire social body: although collective, it is localised in a specific organ. And this localisation does not come about simply through concentration on a given point of a life having its origins outside this point. It is in part at this very point that it has its beginning. When the State takes thought and makes a decision, we must not say that it is the society that thinks and decides through the State, but that the State thinks and decides for it. It is not simply an instrument for canalizing and concentrating. It is, in a certain sense, the organizing centre of the secondary groups themselves.

Through the psychic life of the State, the plurality of secondary groups reaches unity, which means that both the natural law opposition between civil society and State and the mystical union between the individual and the sovereign power – that is, the solution used by natural law theories in order to conceptualize the State – are overcome. The state is neither about a negative protection of individual rights nor based on a form of primary identification such as that of secondary groups. Instead, it is a specific kind of psychic life, and the task of sociology is to protect and expand a positive conception of freedom that can only be substantiated via the sociological vision of the changing character of modern cooperation that is revealed by the transformation of the institution of contract.

The sociological critique of natural law tradition is equally represented in Tönnies’ thought. Nevertheless, if we follow Durkheim’s criticism, Tönnies is stuck in an individualistic, natural law conception of modern society. Like Thomas Hobbes, the father of modern contractual theory, to whom Tönnies dedicated several studies and a monography that was very influential on Hobbes’ reception in the twentieth century (Tönnies, 1896; Ferraresi 2014; Ricciardi 1997), the german sociologist is forced to think about political constraint in a purely artificial way. Tönnies would then reproduce the ideological premise of natural law theories, according to which the will of the people should be constrained by political power, consequently according to a primacy to the State monopoly of power on society.

However, what Durkheim fails to put into evidence is that Tönnies’ notion of will does not just characterize modern individualistic society but communitarian social forms of association as well. It is not surprising, then, that Tönnies defends his position from Durkheim’s criticism. We know that since the beginning, as recalled by Tönnies himself, one of the main aims of his work was via the concepts of community and society to overcome the opposition between civil society and State as it had been represented since Scottish Enlightenment and Hegel.

In Communnity and Society, the book reviewed by Durkheim in 1889, Tönnies maintains that a natural law cannot be associated exclusively with society as it has been stated by modern natural law theorists. Tönnies’ argument sounds heretical because it contradicts the main basics of modern natural law, that is, its unity – by proposing the existence of two different kinds of natural law: a communitarian natural law and a societarian natural law. The first is based on commons and concerns the “spontenous interaction of real bodies continuously living together” (Tönnies, 2001: 182); it can exercise a natural form of constriction on individuals. The second, by contrast, would be based on a collective person “designed to give some coherent foundation to such an artificial and to impose order on the complex of force, power and means” (Tönnies, 2001: 182). Tönnies (2001) can thus conclude that “In general terms Gemeinschft is made up of the union of natural wills, while Gesellschaft is made up of the union of rational, arbitrary wills” (p. 86).

Both these forms of natural law are based on will, and these wills “are seen as causing and predisposing a person to act” (Tönnies, 2001: 96). According to Tönnies, we cannot take the opposition between modern individualism and ancient naturalism – stated by modern natural law conceptions – for granted. Both communitarian natural law and societarian natural law, both community and society, are grounded on will, and even though these wills can be distinguished, they both express the same relation between the whole and the parts. ⁶

Tönnies derives the distinction between two different kinds of natural from Otto von Gierk’s re-elaboration of the Genossenschaftsrecht and his critique of Hobbes’ artificialism. As von Gierke points out, Hobbes’ theory, because it is based on the artificial person of the State, would have been unable to think the universitas of a social body before its political constitution (Gierke, 1934). In order to conceive of the constitution of a political body, we have to reconfigure its plurality, based on intermediate bodies such as corporations, associations, and families.

Community and society, then – even if expressing the historical evolution from ancient to modern world – coexist in modernity in the form of two different expressions of social will. The co-presence of these two social forms can be properly understood by sociology and more particularly by a sociology theoretically grounded in forms of social will. Hence, sociology cannot merely explain, ala Otto von Gierke, the distinction between two forms of natural law. Instead, it has the unique ability to understand their shared basis in a general causality inspired in Tönnies by Spinoza’s monism and his conception of attributes of thought and their extension both expressing the very essence of nature itself (Tönnies, 2016). The general, living causality of nature expresses itself in different forms of intentionality: one based on natural belonging and customarily reproduced by the spontaneous cooperation embedded in communitarian forms of association based on shared property and the other grounded on the artificial person of the State, expressed by the arbitrary will of every individual, grounded on private property and guaranteed by contracts.

Community, according to Tönnies, is about habits and customs. When we speak about habits, we generally take in consideration the fact that habits are facts in our lives – like having the habits of getting up early at morning – or that they have a normative content – that is, they are precepts that have a prescriptive effect on our action. But, recalls Tönnies (1961), the most noteworthy meaning of habits is that of expressing a particular form of will, that is, “a psychic disposition which sets into motion and pervades a certain action […] Will ever has its roots in “wishing” (p. 30). This threefold characterization is what makes habit into custom, which in turn gives habit a properly social meaning.

For this reason, within customs is located a different relation to obligation, an obligation that different from that of societal natural law is not based on subjective rights and private property but instead on mutual assistance and cooperation:

It [communitarian natural law] would not distinguish and separate subjective rights from obligations in such a way as is required in associational relationships, where the law of contract contrasts the subjective or claim of one party with the duty or obligation of the other. On the contrary, the right would directly imply the obligation: the right of dominion (Herrschaft) would involve the legal obligation to use it for the legal claim to protection and assistance […] Everybody would be placed in his proper station, with rights and duties connected with it; every man would have a natural right not only of existence but of participation, with corresponding obligations.

Because it makes it possible to understand differently the “spheres” of social will contained in community and society, sociology opens up a new understanding of natural law. These spheres are sociologically characterized by a series of oppositions such as the ones opposing self and person, possessions and wealth, land and money, family law and the law of contracts.

Sociology, then, has the crucial ability to reconstruct the unity of the communitarian and societal natural law that was lost during the transition to modernity because of the individualistic natural law perspective:

If the theory that I’m putting forward is going to retain the concept of natural law in its twofold sense, it must include the proposition that law can be understood as a collective expression of both natural will and rational will.

For this reason, sociology, being able to rearticulate different forms of social will with a specific kind of normativity, can be considered as a science of obligation able to overcome – as Tönnies (1971) underlines in the introduction of Community and Society as well as in other essays – both the voluntarism of modern individualism and organic conceptions of belonging, ⁷ renewing our conception of authority:

This is the most important case for sociological consideration: that human beings give themselves commands which they themselves obey – in commanding they perform a social action, in obeying they act as individuals.

Sociology is thus able as well to synthetize enlightened natural law and the historical school of law. If since the end of French revolution the enlightenment has been in crisis, one that is particularly evident in the German Historical School since Hugo and Savigny, sociology promises the renewal of its main ambition, that of escaping natural law individualist premises (Bickel, 1991).

Tönnies’ sociology cannot be considered nostalgia for a pre-modern communitarian form of organization of social life, as he clarifies even in the last prefaces of Community and Society, as such nostalgia is one of his polemical targets of his criticism of romantic and historical school anti-modernism. Sociology instead should be considered a science that can target the abstraction of natural law without indulging in reactionary opposition to the modern ambition of a rationally self-governed society. The ethical aim of sociology corresponds to the possibility of overcoming natural law and rescuing a conception of justice immanent to modern society itself; its critical ambition corresponds to opening emerging forms of belonging.

If community and society can be opposed, sociology’s task is to think past the seeming opposition between these two forms and to try to let these forms live within and side by side each other. ⁸

Just as sociology makes it possible to understand the double character of natural law, it also makes it possible to understand the State’s “hybrid, dualistic character” (Tönnies, 2001: 236). This dualistic character can be characterized for being, on one hand, the conventional relation between the citizens and the artificial person of the Sovereign defending their freedom by its power and, on the other, being society itself:

The State is the same thing as Society, or at least […] it embodies the social rationality implied in the idea of Society as a single all-embracing rational ‘subject’. This is Society as an intrinsic unity, not as a specific person distinct from and side by side with other persons, but as the absolute person from which all other persons derive their whole existence.

The seeming absoluteness of the modern State is entirely qualified by the sociological understanding of what a society is. The State’s absolute nature does not coincide with its absolute power, but with the absoluteness of society, properly understood via the notion of community and the different relation to the notions of socialization, work, and property contained in it. According to Tönnies, the task of sociology would not just analytically oppose these two faces of the modern State but understand the movement within it, understanding the transformations that the new social expectations of the working class will provoke. The ethical and political role of sociology, after having requalified the notion of modern obligation by showing two different expressions of social will, would be then to use them in order to understand the notion of State beyond the characterization of it given by natural law theories via the opposition of subjective rights and sovereignty. Rethinking this opposition in terms of an opposition between what Tönnies calls the “Sovereignty of the State” and the “Sovereignty of Society,” sociology shows that the second meaning of sovereignty corresponds with the democratic and reflective constitution of modern societies, exemplified by the power of public opinion and by the changing expectations of social justice that entirely bypass the negative conception of freedom and property that is embedded in modern contractual societies:

This relation [between public power and property, NdA], and the relation dependent upon it, may substantially change in the course of the time. An organic commonwealth may spring into existence which, tough not sanctioned by any religious idea, and not claiming any supernatural dignity, still, as a product of human reason and conscious will, may be considered to be real in higher sense than those products, as long as they are conceived as mere instruments serving the interests and objects of private individuals.

Durkheim and Tönnies shared a common criticism of natural law traditions. They were both convinced that the natural law tradition was based on flawed conceptual premises that grounded the relation between will and the law on purely individualistic assumptions. They also share a conviction that sociology would provoke a different understanding of modern political concepts, thus, at least, theoretically reforming our concept of the state itself. The notion of social facts in Durkheim and the notion of social wills in Tönnies both point to a complete reformulation of the relation between will and law. In this perspective, if we attend to the exchange between Durkheim and Tönnies, in light of what we have observed about their common focus on obligation and on a sociological critique of modern natural law, we can see that the misleading interpretation by the first and the silence about a fundamental aspect of the theory of the second are not incidental. Instead, they represent the proof that these authors shared the idea according to which sociological theory, by rearticulating the relation between will and law, would offer a radical renewal of our understanding of obligation and authority and provoke an overall revision of our political categories, even promoting a new understanding of the concept of State itself.

Their disagreement prevented them both from seeing what was at stake in the theory of the other. Reading their contrast as a sign of a shared understanding about a central epistemological and political issue of classical sociology makes it possible for us to think of their contributions beyond the opposition that has been largely canonized in the discipline and seen as marking the difference between national traditions. If we move past this history, we can better understand the commonality between these two thinkers and thus also enlighten ourselves more precisely about their differences.