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8/10/2019 Albrow_Legal Positivism and Bourgeois Materialism Max Weber's View of the Sociology
1/19
ardiff University
Legal Positivism and Bourgeois Materialism: Max Weber's View of the Sociology of LawAuthor(s): Martin AlbrowSource: British Journal of Law and Society, Vol. 2, No. 1 (Summer, 1975), pp. 14-31Published by: Wileyon behalf of Cardiff University
Stable URL: http://www.jstor.org/stable/1409782.Accessed: 12/05/2014 12:10
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2/19
LEGAL
POSITIVISM AND
BOURGEOIS
MATERIALISM:
MAX
WEBER'S
VIEW
OF
THE
SOCIOLOGY
OF LAW
My
intention
s to
give
an
accountof
Max
Weber's
ociology
of
law but
with
special
reference
o
problems
of
basic
method.1
Much of
Max
Weber's
ontribution
o
sociology
has
been
methodological
n
nature
and
whathe
has
written
on
law
is
no
exception
to
this.
Underlying is accountof thedevelopment f modern awwithits lengthyexcursionsnto
the
history
of
legal
thought
and its
many
analyses
of
the
interplay
f
economic
and
social
factorswith the
professional
nterests
nd
outlook
of
lawyers,
an
account
of both
dazzling
erudition
and
impenetrable
tyle,
there
s
a
general
heory
of
the
nature
and
development
of law. This
theory
stems
from Weber'sbasic
assumptions
bout
the methods
of social
science
generally.
In
particular
Weber's
account of
the
relationsbetween
aw
and
sociology
and his
analysis
of
the
development
f
law
are not
accidentally
inked.
His assertions hat the
legal
point
of
view is directed
o
determining
he
validity
of
law
while he
sociologist
s interested
in what
happens
when
people
act
in
society
with
aw in
mind,
hat
thesetwo
points
of view
are
quite
distinct
with
no
overlap,
and
his beliefthat
legal
thought
has
its
own
logic
which
has been
expressed
n the
general
historical
rend o the
increasing
ormal
rationality
f
law
are
part
of a
single
viewof the
world,
albeita
complex
and
sophisticated
iew
which
defies
the
temerity
of
any
commentator
who
seeks,
as I
do,
to
give
it
a
label.
In
showing
how
this
view of the
world
is
expressed
n
his
sociology
of law I
hope
simultaneously
o
indicate
its
scope
and limitations or
us
in
any
programme
or
the
sociology
of
law in
contemporary
onditions.For
in
spite
of its
prodigious
cholarship
Weber's
ociology
of
law has
commanded
elatively
ittle nfluence nd
this
has
moreto
do
with the
conceptual
ramework nd ntellectual utlookwhich
are
timebound
han with the
impenetrabilityf the style.
There
s a
paradox
n this. Weber
was trainedand
practised
or
a
time
as a
lawyer.
His
dissertation
was on
law
in relation
o mediaeval
rading
companies.
His
interest n and
respect
or
the
law were
sustained
hroughout
his life.
He was
a
frequent
and
successful
litigant.
t
was
perhaps
he
sectorof social
ife he knewbest.
Why
should
t
be that
his work
on
law
hashad so much ess influence
n
subsequent enerations
hanhisworkon
politics,
religion,
ociological heory
and the
philosophy
f socialscience?
Perhaps
quallyneglected
have
been
his ideas
in
economics,
n which
subject
he held his
chair
The
quick
answer
s
that
it
was
precisely
n
those
areas hat
he
was
most
a
prisoner
of
the dominant heoriesof his time.
They
provide
he
uncritically
eld
assumptions
f this
most
criticalof theorists.He
accepts
he
paradigms
f the
legal
and economic cience
of
his
time
and
his
originality
n
the other
spheres
stems
very
much
from the
application
of
a
special
amalgam
of thesetwo forms of
thought
to
subjects
beyond
their normal
scope.
Weber
called himself
bourgeois.
He was
proud
to
accept
that label. Law and
economics
1 This
paper
s based
on
a
talk
given
to
the Seminar
on the
Sociology
of
Law
at
the
Centre or
Socio-Legal
Studies,
Oxford,
on the 31
January
1975.
I
am
grateful
to the
participants
or the
points
raised
in
discussion.
14
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are the
natural nstruments f the
bourgeoisie.
For him
they
are
constructed ut
of
a
pure
and timeless
rationality.
But
it is
precisely
n
eras
of
rapid
social
and
technical
hange
hat
they
have to
be
continually
efashioned.
oday
we
rightly
have ittle
trust n what
appeared
to
be timeless
principles
t
the
beginning
f the twentieth
entury.
Allusion o
Weber'sown
image
of himself
brings
out
a
contextual
point
which
s
vital
to
the
understanding
f his
sociological
analysis
of
law.
A
major
arget
or Weber
hroughout
his life was the historicalmaterialism f Karl Marx. Justas in his accountof the riseof
capitalism
e
attributed
o
the
religious
deas
of Protestantism
n
mportant
nd
ndependent
causal
position,
so
he refuses o
see law as
any
mere
reflection f
the
material nterests
of
the
capitalist
class.
Indeedhis
writing
on the
sociology
of
law
is in
the contextof
a
much
broader
and more
ambitious
account
of
the
general
relationsof the
economy
to
other
spheres
f
social
ife
which ees he
growth
f
capitalism
s
one
special
acet
of the
rationaliza-
tion of
modern
society
in
all
respects.
In
this
general
process
religion,
aw,
economics,
science,
politics
all
have
both
ndependent
nd
dependent
ositions
n relation o
each
other
and none
has
priority.
It
is
a
multi-factor
pproach
o societal
analysis
where
sociology
emergesvery
much
as
the
discipline
which
traces the
bonds
betweenthese institutional
areas.
Weberian
ociology
s
therefore
ery
muchthe
response
o and
bourgeois
quivalent
of Marxism
n
both
scope
and
generality.
If Marx
s the
major
antecedent
f Weber's
nterest
n the
sociology
of
law,
it
is
in
a
very
general
and
unspecified
orm.
Weber
was not
interested
n Marx's
workin
any very
scholarlyway
and
to some extent
his
attackwas
on
vulgar
Marxism
n the broadest
ense.
In
the
scholarly
ontext
here
s
a
minor
antecedent
whichdeserves
mention.
n
1894Rudolf
Stammler
had
published
Wirtschaft
undRecht
nach
der
materialistischen
Geschichtsauffassung
(Economy
and
Law
according
o
the Materialist
Conception
f
History).
He
attempted
o
show
on
the
basis
of
epistemological
onsiderations
hat
it was
impossible
o view the
economyasfundamentalo society.Through nalysingheidea of social ife he cameto the
conclusion
hat
its essence
wasin
activity
n accordance
with common
rules.
Theserules
he
identified
s law
and
he saw
law
as both constitutive
f and
determining
ocial
life.
In
1907
Weberwrote
a substantial efutation
of
Stammler
n
a
review
of the
second
edition
of
his
book.2
This contains
an
analysis
of whatis involved
n
studying
ules
of
any
kind
and
in
particular
makes
distinctions
between
the evaluation,
interpretation
nd
empirical
tudy
of the effects
of rules.
He usesthe
example
of
a
game
of cards
to
illustrate
his
argument
nd
proceeds
o the
point
that,
complex
hough
he
analysis
of a
game
of
cards
is,
the
case
of
law
is
much
more
complicated
ecause,
unlike
a
game
of
cards,
he
reality
or
which aw is relevants not totallydefinedby law. As he said whenstudying he place
of
Protestantism
n
the
rise
of
capitalism
he was
intentnot
to
replace
a one-sidedversion
of
history
with one
that
was
equally
one-sided.
n
avoiding
Marx's
economicdeterminism
e
wished
also
to avoid Stammler's
egal
idealism.
I
mention
this
still untranslated
aper
of Weber'sbecause
t
provides
the
methodo-
logical
foundations
or his
sociology
of lawand because
t is
neglected
by
Max
Rheinstein
2
"R.
Stammler's
Ueberwindung
er materialistischen
Geschichts
auffassung",
n Max
Weber,
Gesammelte
Aufsdtze
zur
Wissenschaftslehre
1968
J.
C.
B. Mohr
(Paul
Siebeck),
Tubingen)
291-359.
15
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8/10/2019 Albrow_Legal Positivism and Bourgeois Materialism Max Weber's View of the Sociology
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The
distinctionbetween
he two
approaches
o
law
leads Weber
nto
a
consideration
of
the
concept
of
law. It
is
already
clear
n
his
essay
on
Stammler
hat
Weber
regards
he
methodological
roblems
of
the
study
of law
as
being
n
principle
no
different
rom
those
in
the
study
of
any
set
of
rules,
be
they
conventionsor
merely
he
rules
of a
game
of
cards.
Law
in
this
respect
has
no
special
dignity.
This
position
is
elaborated
n
Law
in
Economy
and
Society.
In
all
determinate ocial
groups
there are rules.
Sometimes hese
amount
to
merecustom,wherenobody reallythinkswhat he is doinghas any realimportance nd
there
s
no
sense
of
obligation
nvolved
n
following
the rule.
But more
important
s
the
fact that
in
social
groups
he
actors
regularly
ave the
idea
of a
legitimate
rder,
or set
of
rules
which
nvolves
a
degree
of
obligation.
Though
his
set of
rules
may
not be
respected
by
everyone
and
indeed
some
may
flout
it
or
use
it
in a
cynical
way,
nonetheless
t is
the
fact that to
a
substantial umber
t
has
a
binding
orcewhich
gives
t an
importance
n both
social
life and
sociological
analysis.
Such
a
social
order
can be
called
convention,
says
Weber,
f
it
is sustained
merelyby
approval
or
disapproval.
t
"will
be called
law if
it
is
externally
uaranteed
y
the
probability
hat coercion
physical
or
psychological),
o
bring
about
conformity
or
avenge
violation,
will be
applied
by
a
staff
of
people holding
them-
selvesspeciallyready or the purpose."s
We
may
ask:
"Is this Weber he
lawyer's
oncept
of
law,
or Weber
he
sociologist's?"
This
s
not
easy
to
answer.
Rheinstein
oints
out the
similarity
etween
Weber's dea
of law
and that
of
Austin's
definition
of law as the
command
of
the
sovereign.
He
also notes
the
connection
between
Weber's
iews
and
those
of
Kelsenwho
developed
pure
heory
of
law,
devoid
of
ethics,
a
doctrine
of
legal positivism.
n other
words
there
s
nothing
n
Weber's
formulation
which
automatically
ules
t out
of consideration
s
a
concept
of
law for
juris-
prudence.
Moreover
t
might
seem
to be
implied
by
Weber's
emphasis
on the
inherent
differences
n
the
sociologist's
and
lawyer'spoints
of view that
they
would
necessarily
e
pointsof view on the samephenomenon.Afterall aretheynot the sameset of ruleswhich
the
academic
awyer
tests
for
their
coherence
and
the
sociologist
for their
effectson
the
real
world?
But
at
other
points
t seems
hat Weber
s
advocating
concept
of law
which s
peculiar
to the
sociologist.
As he
says:
"In
our context
he
concept
of law
will be defined
as an
order
which
depends
on an enforcement
taff.
In
otherconnections
different efinitions
may
well
be
appropriate."6
n
other
words,
you
choose
your
concept
according
o the
intellectual
purpose
you
have.
Weber
adds
that
the
legal
terminologymay
be
quite
different.
Thus
this
definition,
he
notes,
excludes
nternational
aw as
a form
of law becuase
t has no
supra-
national
enforcement
agency.
Yet,
again,
there
is no reason
why
this
point
may
not
be
madebyan academicawyerand Weberagrees hat t has beentimeandagain.Thesection
which
Rheinstein
heads with
"The
Sociological
Concept
of Law" overstates
Weber's
commitment
o the
notion
of
a
sociological
concept,
for
the
German
edition entitles
his
section:
"The
juristic
and
sociological
concept
and
meaning
of the
legal
order"
and
the
discussion
which
follows
is
largely
aboutthe
respective
oints
of
view.7
5
Rheinstein,p.
cit.,
p.
5.
6
Ibid.,
p.
6.
7
Ibid., p.
11.
Max
Weber,
Wirtschaft
und
Gesellschaft
1956
J. C. B. Mohr
(Paul
Siebeck),Tubingen)
181.
17
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Whateverhe balance
t
is
apparent
hatthe two
issues,
he
disciplinary
iewpoint
upon
the
subject
matterand the
constitutionof
that
subject
matter,
are
closely
intertwined
or
Weber
so that
at
one
point
at
least
they
seem
to
merge.
In
his
essay
on
Stammler
he
distinguished
etween
the
ideal
and
empirical
validity
of a
legal
proposition.
The
ideal
validity
of
a
legalproposition
meant hat
the
jurist
who
sought
"juristic
ruth"
would
find
a
bindingrelationship
etween
certain
concepts
and
he
would be
obliged
ntellectually
o
posit that suchand such a rule shouldbe accepted.But the empirical alidityof a legal
proposition
imply
consisted n
the
chance hat
it
had a
demonstrable
ffect
n the
world.
In this sense
"Empirical
alidity
s
ultimately
s
much
a
feature
of
'juristic
rror'
as
'juristic
truth'."8
Weber
lludes o
this
notionof
empirical
alidity
n
another
definition e
offers:
"'Law',
as
understood
by
us,
is
simply
an
'order
system'
endowed
with
certain
pecific
guarantees
of
the
probability
f
its
empirical
alidity".9
n
this
case we
clearly
have
a
definition
which
is
dominated
by
what Weberconsiders
o
be
the
methodological
ecessities
of
empirical
science.
But
we
are
thereby
eft
in
considerable ifficulties
or it is clear
that what
the
sociologistconsidersas lawmayturnout to be quitedifferent romwhatthejuristdoes.
Can
the
sociologist
consider
as law
a
system
of rules from
whichthe
lawyer
would
with-
hold the
term?
The
methodological
enets
of
the
sociologist
now
appear
o determine
what
can be called
aw.
Under
hesecircumstances
hat
happens
o the
point
of
view
of
the
actor
be
he
lawyer, urist,
udge,
egislator,
itigant
or
simply
citizen?What
happens
o the famous
insistence
on
the
subjectivemeaning
of
action
which
s
so often
associated
with
Max
Weber
and which
s
exemplified
n
this self-same ontext
by
the
view
he takes
of ethics?
Whether
or
not a normative dea
which is
actually
held
by
human
beings belongs
to
the realm
of
ethics,
or,
in
other
words,
whether
or not
a
given
norm is
one of 'mere'
aw or convention must
be
decided
by
the
sociologistexclusively
n
accordance
with that notion
of
the 'ethical'whichis
actually
heldbythepeoplenquestion.10
If
the
"people
n
question"
re
the
court
of
appeal
n
the case
of
ethics,
why
are
they
not in
the
case
of
law?
This
is
a
question
o
which
we shall have
to return.
When
Weber
eaves he
topic
of law n
general
nd
proceeds
o a discussion
f
the main
substantive
ields
of
law,
it is
apparent
hat
sociological
viewsof law
must have a
more
intimate
onceptual
elationship
ith
egal
views
han
Weber's
oncern
o establish
ociology
as
an
empirical
discipline
might
suggest.
The first
major
distinction
he
considers
s
that
between
public
and
private
aw,
of
great
mportance
n German
egal
theory.
Immediately
he
adopts
what
he calls the
"sociological
est"anddefines
public
aw"as the total
body
of
those normswhichregulate he activitiesof the state as such"and privatelaw as "the
totality,
not
of
those
norms
which relate
to the state as
such,
but
of
those
norms
which,
while
ssuing
romthe
state,
regulate
onduct
otherthan
state
activity."
He
goes
on:
"This
kind
of
definition
s rather
non-technical,
nd,
therefore,
difficult
o
apply.
But it
seems
nevertheless
o
constitute he
basis
of almostall other
attempted
distinctions
of the
two
8
Max
Weber, Wissenschaftslehre
p.
cit.,
p.
347.
9
Rheinstein,op.
cit.,
p.
9.
to
Op.
cit.,
p.
8.
18
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great
branches
f the
law."11
Here
then the
non-juristic oncept
s
not
simply
a
specialized
viewpoint
rom
empirical
cience,
it
apparently
xpresses
something awyers
attempt
to
conceptualize
ut
to
which
they
can
only
approximate.Legal
theories and
practices
hen
appear
as
a
variable
surface
expression
of
deepercategories
of social
action and
types
of social
structure
which
the
sociologist
reveals,or,
to
use another
simile,
as the
dialect
forms
of a
more
universal
anguage.
Inhis
rejection
f theeconomicdeterminism f Marxand the
legal
dealism f
Stammler
Weber
has
come
close
to a
position
which
one
could call
sociological
determinism.
The
content
of
legal
theories s
relatively
unimportant,
what
matters
s
political
organization,
the real institutionsof
political society.
These are
the infra-structure. ut in
emphasising
this
social
structural
basis,
Weber s
simultaneously
roviding
a
general
account of
legal
thinking.
f
we recallthe
distinction
he
drew
n
the
essay
on
Stammler,
etween
he
social
scientist's
nterest
n
law
and
the
jurist's,
a
key
aspect
of
it
was the
emphasis
and commit-
ment
by
the
jurist
to
normsof
pure
rationality.
ustas the
sociologist
was
interested
imply
in
the
fact
that norms
wereor werenot
observed,
o the
lawyer
was
simply
nterested
n
the
technical orrectness f argument.
It
is
not
therefore
urprising
hat
Weber
moves
directly
rom
considering
he
types
of
political
and
social
arrangements nderlying
he
specialized
ields
of
law
to
a
consideration
of
the formal
structure
nd
techniques
f
legal thought.
think
Rheinstein
s
right
o
make
a
separate
chapter
headed
"Categories
f
Legal Thought"
out
of
a
section
which
in
the
German
dition
runs
straight
n from
the
consideration
f
substantiveields
of
law.12
n
the
brief
space
of four
sides
we
get
the
central
deas
underlying
Weber'swhole
approach
o law.
The
various
schools
of
legal thought
can
be
seen
as
having developed
and
become
differentiated rom
each
other
according
to the
type
of
political
organization
and
the
"internal
structure
of
legal
thought".
Weber then
addresses
himself to
the
problem
of
advancinga set of adequatecategories or the analysisof the structure f legal thought.
Paradoxes
are
already
beginning
o
multiply.
What
was to have been an
empirical
study
of law
in
the
world
begins
to
be an
analysis
of
legal
theories.
Weber'sconcern
o
advance
a
sociological
view of
law
turnsout
to be
an
attempt
o advance
a
theory
of law
which
depends
on
identifying
he
common
elements
n
any system
of
legal
thought
and
showing
how
they
have
developed
hrough
he
history
of
law,
and it is with this that the
rest
of his
sociology
of
law
is
concerned,
with
a
wealth
of
historical
llustration nd con-
ceptual
refinement,
ut
clearly
directed o
confronting
urists'
heories
of law. So it
is that
Weber's
"empirical"
tudy
of law
begins
o revolve
around
whathe heldto be the heartof
the dogmatic urist'sconcern n law, the most idealand leastempiricalaspectof all, the
nature
of
legal
rationality.
This
is
the central
notion in the Weberianaccount of law in
economy
and
society,
as
is
the
concept
of
rationality
he centralnotion in the total
corpus
of Weber's
work.
The
idea of
rationality
an
be
applied
o law
in several
ways
according
o Weber.As far
as
a
body
of law as
a whole
is
concerned
t amounts
essentially
o
systemization,
he
con-
11
Ibid.,
p.
41.
12
Ibid.,
pp.
61-4.
19
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struction
of a
gapless
system
of
rules. In
the
actual
making
of law
it
involves
a
basic
distinction
between
ormaland
substantive
ationality.
Formal
rationality
an
simply
be
a
matterof
attending
o
certain
procedural
ormulae,
ymbolic
acts,
signature
nd
so
on,
but
more
mportantly
n
the
modern
world
nvolves he
formation f
legalconcepts
of a
highly
abstract
nature he
meaning
of
which s
analysed
and
madeclear
in
being applied
to
any
concrete
et of
facts.
Substantive
ationality
n
the otherhand nvolves he
decision
of
legal
problemsby referenceo ethical mperatives, ormsof a utilitarian r expedientialkind.
This form of
rationality
n
law
is
always
n
tension
with the
formal
kindof
rationality.
t
is
this latter
which is
peculiarly
egal.
"The
peculiarly
professional egalistic,
and
abstract
approach
o the
law
in
the modern
ense s
possibleonly
in
the measure hat law
is
formal
in
character."
hus
"dogmatic
egal
science"
becomesboth the
source
of the
independence
of
the
legal
profession
and a
measure f
the
empirical
evelopment
f law:
Present-day
egal
science,
at
least
in
those
forms
whichhave
achieved
he
highest
measure
of
methodological
nd
ogical
ationality,
.e.
thosewhich
have
been
produced
hrough
he
legal
science
of
the
Pandectists'
ivil
Law,
proceeds
rom he
following
ive
postulates:
iz.
first,
hat
every
oncrete
legal
decision
be
the
'application'
f an
abstract
egal
proposition
o
a
concrete fact
situation';
second, hat it mustbe possiblen everyconcrete ase to derive he decision romabstractegal
propositions
y
means
of
legal
logic;
third,
hat the
law must
actually
or
virtually
onstitute
'gapless'
ystem
f
legalpropositions,
r
must,
at
least,
be treated s
if
it
were uch
a
gapless
ystem;
fourth,
hat whatever
annotbe
'construed'
egally
n
rational erms
s
also
legally
rrelevant;
nd
fifth,
hat
every
ocial
actionof human
beings
must
always
be
visualized s either
an
'application'
or
'execution'
f
legal
propositions,
r
as
an
'infringement'
hereof.13
It
is
to
the
development
f
these
formal
qualities
of
law
that
Weber
addresses
himself
n
the
rest
of
his
sociology
of
law.
Weber's Account
of
the
Development
of
Modern
Law
Weber's
historicalaccount
of
law
consists
of
relatively
ew themes
woven
together
o
giveaveryrich exture.Bare ummaryandoscant ustice o thisrichness ut bare ummary
is
necessary
because
oo
easily
is
the
reader
overwhelmed
y
the eruditionand
repeated
flashes
of
insight.
The
themes nclude he
ways
n whichnew law
is
generated,
he relation
between
aw and the
economy,
n
particular
he
way
law
facilitates conomic
development,
the
weight
of
economic
and
political
factors in
determining
he
balance
of formal
and
substantive
ationality
n
law,
the intellectual
utlook and interests
of
lawyers
as a
factor
in
legal
development,
ut
above
all
the tension
between
ormal
and
substantive
ationality
as an
ever
present
element.
Right
away
t must
be
said
thatthere
s
clearly
an
intimate onnection
betweenWeber's
methodologicalnddefinitional pproacho lawwhichwehavealreadydiscussed ndthis
account
of
the tension
between
ormal
and substantive
ationality.
His
sociological
posi-
tivism n
respect
of
the
concept
of law excludes he
possibility
f
any
kind of consideration
of the values
which
jurists
normally
discuss.
In
particular
t
resolutely
and
deliberately
avoids
any
discussionof
justice
or
any
consideration
which
might distinguish
between
enforced
odes
of
rules
according
o the
values
which
hey express. This
s the
counterpart
in
anothercontext of his
determination
o define
the
State
in terms
which exclude
any
13
Ibid.,
p.
64.
20
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8/10/2019 Albrow_Legal Positivism and Bourgeois Materialism Max Weber's View of the Sociology
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ideas
available
to the
legal experts
of
the
time.15While
bourgeoisgroups
demand
a
calculableaw and thusaredecisive or a
general
rend
o
formal
aw,
they
have
no
influence
on the
development
f the most
highly
rationalizedorms."This
ogical
systematization
f
the law
has been the
consequence
f
the intrinsic ntellectual eeds
of
the
legal
theorists
and their
disciples,
he
doctors,
.e.
of a
typical
aristocracy
f
legal literati."16
or
Weber
the test
case for the
independence
f
legal
structure
rom economic
nterests
s
very
much
England.The historyof the development f the legal structure f organizationss very
different n
England
rom that on
the
continent
and
yet
capitalistdevelopment
ook
place
in
both.17
Actually
Weber's reatment
f
the
English
situationrevealsdifficulties
n his
entire
discussion
of
the
relations
of
law
and
the
economy.
In
any
case
for him
English
aw
was
inferior
o the
continental
n
its lower
degree
of
rationalization.He
sees it as
empirical,
complicated
nd
expensive
and "it
may
indeedbe
said
that
England
achieved
apitalistic
supremacy mong
the
nations
not
because
of,
but rather
n
spite
of,
its
judicial
system."18
But at the same time
Weber
cannot
avoid
commenting
n
the class basis
of
British
aw.
He seesit as a blatantcaseof one law for the rich and onefor thepoor.Onlythe rich can
afford
itigation
and
the
poor
put up
with
the
"Khadi-justice"
f
the
justices
of the
peace.
This denial
of
justice
was
in
close
conformity
with the interests
of the
propertied, specially
the
capitalistic,
classes.
But
such
a dual
judicial
policy
of formal
adjudication
of
disputes
within the
upper
class,
combined
with
arbitrariness
r de
facto denegation
of
justice
for the
economically
weak
is not
always possible.19
Weber'sattitude
o
England
s
worth
a
paper
n
itself,
but
what
must
nterestus
here
is that Weber's
own
judgment
on what
benefits
or does not benefit
which class
appears
indeterminate
nd uncertain.
t
is
difficult o avoid
the
conclusion
hat,
evenon his
account,
the
structure
f
legal thought
s
veryepiphenomenal.
conomic
development
akes
place
regardless.
The
bourgeoisie
always gets
the law
to suit
it.
By concentrating
n
law as
technique
he makes
t
appear
mportant
or the
independence
nd
prosperity
f those
who
live from
the law and
nothing
more.
Nothing
could be
more
indicative
of
the
profound
antinomies
nd
paradoxes
of his
view
of
the relation
of formal
and
substantive onsiderations
n
law
than
his
discussionof
contract.
For
Weber
egal
rights
are
the
"reflex"
f
legal
regulation
nd
rights
are a
source
of
power.
In
so far
as
law
creates
rights,
t
givespower
o
particular
ndividualswhich
they
can
then
exploit.
Certain
tructures
f
rights
can thereforeavour he
emergence
f
certain
kinds of
economic
relation.
In the modem world
the extent
of contractual
reedom
s
so
great that one can designatemodernsocietyas of the contractual ype. Whatever he
individual
or
corporate
group)
sees
as in his
interests,
economic or
otherwise,
he
can
organize
on
the basis
of
a contractual
elationship
with
otherswhich he law will
recognize
15
Ibid.,
p.
131.
16
Ibid.,
p.
278.
17
Ibid.,
pp.
176-188.
18
Ibid.,
p.
231.
19
Ibid.,
p.
230.
22
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and
enforce
f
need
be.
The
result
s
that
market
orces of the
economy
have
a
scope
for
development
eyond
anything
xperienced
efore.This
legal
"freedom" ecomes
he basis
of
economic
servitude
or wide
strata
of
society.
On such
themesWeber's
ealismamounts
o
a
critique
of
contemporary
ociety
owing
muchto
and
quite
as
trenchant s
Marx's. t wouldbe
quitewrong
o
imagine
hat
because
Weber
accepts
the
bourgeois egal
and
economic
science
of
his time
that this
translates
itself
into a
complacent
acceptance
f
the
status
quo.
On
the
contrary,
his
whole
analysis
of rationalization
s
a
despairing
ndictment
f
the fate of
both
bourgeoisie
nd
proletariat.
Now
this
might
appear
o be
a decisive
argument
n
favour
of
seeing
he
development
of
legal
technique
as
a
major
actor
n
economic
development,
nd
indeed
this
appears
o
be
why
Weber
ntroduces
his
theme.
But
towards
he end
of Law
in
Economy
nd
Society
it
appears
hat
the
development
f modern
commercial
aw
in
particular
as
quite
another
significance,
or
it
gives very
full
scope
to
industrial
and
commercial
pressure
groups
to
have
transactions efined
as
commercial ven
when
they
are not
conducted
by
merchants,
so
that out of
economic
expediency
commercial
meaning
may
be
imposed
on
what
was
not intended s such.20Alternatively,hereal ntentionsof theparties o a contractmaybe
taken nto
account
and this in Weber's
iew
s
equally
destructive
f
the formal character
of
law.
Thus:
In
the
sphere
f
private
aw the concern or a
party's
mental
attitudehas
quite generally
ntailed
evaluation
by
the
judge.
Good faith and fair
dealing'
or the
'good'
usage
of
trade
or,
in other
words,
ethical
ategories
avebecome he
test
of what the
parties
are entitled
o
mean
by
their
'intention'.
Yet,
the reference
o the
'good'
usage
of
trade
mplies
n
substance
he
recognition
f
such
attitudes
whichare
held
by
the
average
arty
oncerned ith
he
case, .e.,
a
general
nd
purely
business riterion
f an
essentially
actual
nature,
uch
as the
average xpectation
f the
parties
n a
given
ransaction.t
is thisstandard
hich
he
aw
has
consequently
o
accept.21
So it appears hat muchof the development f modern aw in relation o economic
affairs
can
only
derogate
from the
formality
of
law and
the
independence
f
judicial
decision.
"Logically
onsistent
ormal
egal thinking"
s
incompatible
with the "fact that
the
legally
relevant
agreements
and activities
of
private parties
are aimed
at
economic
results
and orientated
owards
conomically
etermined
xpectations
..
Lawyers'
aw
has
neverbeen
and never
will be
brought
nto
conformity
with
lay
expectation
unless t
totally
renounces
that formal
character which
is
immanent
in
it."22
As with
his
discussionof the
relation
of
the
economy
and
law
so Weber's
analysis
of
the
relationsof law
and
politics
is
focussed
on
the
tension
of
formal
and
substantive
rationality.ButhereWeber eesa moredirect nfluence f political actorsonthelaw,which
is
hardly
surprising
ince
his
definition
of
law contains that element
of
realism
which
emphasizes
coercion,
enforcement
gencies
and hence
political
power.
In
this sense
the
relations
of
law
and
politics
are
much
more
conceptual
han
empirical
nd
this means
hat
the
attempt
to
analyse
their relationsas two
separate
variables,
contingently
elated,
as
20
Ibid.,
pp.
302-3.
21
Ibid.,
p.
307.
22
Ibid.,
p.
308.
23
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Weberdoes
with
aw
and
the
economy
s
less
possible.
Thus
Weber howshow the
develop-
ment
of much modem
law
involved
he
incorporation
f
separate egal
codes into
a
single
jurisdiction
hrough
he creationof
special
rights
and
that the
centralization
f
the
State
involves
such
an extension
of
legal
concepts.
But
here too
formally
rational
law
finds
its
independence
nd
clashes
with
both
political
xpedience
nd
the
attempt
o
regulate
tateaffairs
ccording
o
moral
or
economic
principles.ndeedWeber
develops
a
theory
which eesthe
lawyers
cquiring
n
independent
power
positionby
their
ability
o
becomedetached rom
he
competing
nterests
n a
plural
society.
The
patriarchal
monarchwould
find
that
in
using
juristic
experts
he
would have
handed
over his
capacity
to
organize
his
affairs
autonomously.
Formal
ustice
reduces
arbitrariness
nd
favours hose with economic
power
at
the
expense
of
those with
political
power.
The
enlightened
despots
of
the
eighteenth
entury
n
particular
ought
to
avoid
juristic
hair-splitting
nd
to avoid
the elaboration
of law
by
professional
urists.
The
PrussianGeneral
Code
of
1794
was
an
attempt
at
systematic
ationalism
f
a
substantively
rationalkind.But for
Weber his
code,
which
ndeed
urvived
nly
until
1896,
was
a failure.
Its
clarity
was obscured
by taking
"as
its
point
of
departure
ot formal
egalconcepts
but
the
practical
elations
of life."23
This
discussionof
the Prussian
Code
leads
Weber nto
an account
of
the FrenchCivil
Code and a
concluding
eneral
discussion
of the
conflicts
between ormaland
substantive
rationality
n
modern
egal thought.
It
is at this
point
that
one can
see
all
the more
clearly
that
Weber's
analysis
must be
seen as much
as
a
contribution
o
juristic
debate
as
to
a
sociology
of
law and it
becomes
quite
obvious
that
Weber
s
in
fact
espousing
a
particular
juristic
doctrine.
The
French
Code
attempts
o base
its
laws
on a
normative tandard
of
natural
aw.
The sources
of
natural
aw
doctrine
are
various,
temming
rom
Stoicismand
Christianity,
mediaeval
English
ideas
of
individual
rights,
and the
eighteenth
century
enlightenment.n Weber'sdefinition"Natural aw is the sum total of all those norms
which
are valid
independently
f,
and
superior
o,
any positive
aw and
which
owe their
dignity
not to
arbitrary
nactment
but,
on
the
contrary,provide
he
very
legitimation
or
the
binding
orce
of
positive
aw."24
Natural
aw
was often
expressed
n
very
formal
axioms
but
in
practice,
argues
Weber,
and
ndeed
necessarily,
atural
aw deas
nvolve
bringing
nto
the
discussion
f
law
problems
of
practicality
nd
usefulness.
t involves
he
English
oncept
of
reasonablenessather
han
rationality
f
logic
of
the
Roman
Law. Such
notions,
notes
Weber,
play
a
vital
part
in
all
socialist
movements.But nonetheless
e
considers hese
metajuristicustifications
f
law
to
be everywhere n the retreat. ntellectual cepticism nd the relativizationf moralshas
led
to
seeing
such
metaphysical
laims as
the mere
expression
of
compromises
between
conflictinggroups.
So
legal
positivism
has
advanced
rresistibly
nd the
legal
profession
becomes
a
conservative
orce
simply
concerned
o
preserve
he
law
of
the
moment from
either
proletarian
demands
or social
justice
or
patriarchal
welfare-statism.
n
this
con-
servatism
he
command
by
the
legal profession
of the technical
xpertise
of formal
legal
23
Ibid.,
pp.
280-1.
24
Ibid.,
p.
288.
24
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rationality
s
its
greatpower
asset
and
also
its
intellectual
elight.
The
formal
expertise
of
the
lawyer
and the
conception
of
law as
a
gapless
omplex
of
norms,
actorswhich
originally
facilitated
he
reception
of
Roman
Civil
law,
had
given
to
the
legal profession
that
power
resourcewhich
transcended
nd
indeed
made
rrelevant he
substance
f
Roman
aw.
All kinds of
countervailing
endencies
o
the advanceof formalistic
egal
rationalism
might
exist
n the
modernworld.
Weber
gives
a
resum6
f
them.
We
have
already
mentioned
his viewof commercialaw.Anglo-Americandeaswith their owlevelof rationalism,rude
empiricism
nd relative
accessibility
o
the
layman
represent
n
exception.
The
jury
system
represents
form
of
"popular"
nd rrational
ustice.
Sometimes
urists
hemselves,
larmed
by
the technical
perfection
hey
attain,
advocate
he
introduction
f
substantive
onsidera-
tions
into
the
law
and
in
the
short term
at
least
make
of
law
something
morethan
a set
of
techniques.
They
react
against
being
"slot
machine"
awyers
nd advocate
udicial
creative-
ness25
s
they
believe
s
characteristic
f the
Anglo-American
ystem.
Weberallows
that
these
countervailing
endencies
have
strength
but
it
is
quite
clear
wherehe
feels
the future o
lie in
the
legal
profession.
"In
any
case,
the
juristic
precision
of
judicial opinions
will
be seriouslympaired
f
sociological, conomic,
or
ethical
argument
were to
take
the
place
of
legal
concepts",
". . .
it will
be
inevitable
that,
as a
result
of
technical
and economic
developments,
he
legal
ignorance
of the
layman
will
increase.
Inevitably
he
notion must
expand
hat the
law
is
a rational
echnical
apparatus,
which
s
continually
transformable
n
the
light
of
expediential
onsiderations
nd devoid of
all
sacredness
f
content."26
Legal
Positivism
nd
Bourgeois
Materialism
It
is
impossible
o
give
a
short
overall
characterization
f
Weber's
study
of law
in
society
except
by
seeing
t
as
an
account
aiming
at
the
same
evelof
generality
nd
answer-
ing
the
same
range
of
basic
problems
as the
Marxist
nterpretation
f
society.
It is then
a
total
paradigm
and a
substantial
ritique
wouldamountto a
major
study
at several evels
of
analysis.
As far as his
theory
of law is concerned
I would
suggest
calling
it
"legal
positivism".
But
as
a
general
account of
law in
society
perhaps
he best label would
be
"bourgeois
materialism".
For
this is
an
account
which
places
nterests
at
the
centre,
but insteadof the
polariza-
tion of
society
into the
two
great
camps
of
capitalists
and
proletariat
t dissolves
society
into a
number
of
conflicting
but
interdependent
nterests,
none
more
basic
than the
others
and with
different ources
of
power.
Among
these
interest
groups
awyers
appear
n
the
broadest
sense
as an
independent
roup
with
their
own
interests
and
motivations,
which
areas often ntellectual seconomic,and withtheirown sourcesof power,a command ver
legal
logic
and rational
techniques
which make their
specialized
kills
indispensable
n
economic
and
political
life.
Weber's
concept
of law then
underpins
he
independence
f
lawyers
as
an interest
group,
contributes
o
a
vision
of
society
as
a
plurality
of
competing
groups
and
is
part
of an
empirical
multiple-factor
methodology
of social science.
It is
also
part
of
a
general
nterpretation
f
history.
25
Ibid.,
p.
309.
26
Ibid.,
pp.
320-21.
25
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Just as
with Marx
it
is
possible
to wonder
at the
innumerable
incisive
analyses
and
yet
find
the total
paradigm
defective,
so
it
is
with
Weber.
I
find
myself
parting
with
Weber
at
so
many
specific
points
that
I
am
bound
to
admit a
systematic
divergence
from
him which
can
only
suggest
a
different
view
of
the world
in
general
and
of
social science
in
particular.
Without
in
any
sense
attempting
a
"general
refutation"
of
Weber,
which is
quite
beyond
the
scope
of this
paper,
I
would like
to draw
attention
to
a
variety
of
points
where
it is
possible to come to quite differentpositions from those that Weberadopted. Most of these
points
have
already
been
signposted
in
the
analysis
above.
Let
us
consider
first
the two
versions of the
relations
of law and
sociology
in Max
Weber,
the
early
one
in
the
essay
on
Stammler
where he
suggests
it is
the
function
of the
jurist
to
see
whether
the actual
behaviour measure
up
to
ideal
norms,
and the later one
in
his
sociology
of
law
where he
emphasizes
the construction
of a
general
system
of
legal
propositions.
In
the
first case the
jurist
is
using
a
value
standard
but
he
is
measuring
the
real world
against
it. In
the
second he
clearly
has moved
to
a
more abstract
plane
of
activity.
We can
only guess
at
the
reasons
Weber
had
for
this shift
but
its
functions
within
his
thought
are
clear.
In
the
first
instance
the
jurist
has a
ratherclose relation
with
the
real
world.
More-
over
it
stimulates
the
questions
"Does
not
the
jurist
share
something
of
empirical
science
here?;
Cannot
the
jurist
be
perfectly
objective
in his
analysis
of
the behaviour
of
those
involved
in
the
legal
process?"
My
interpretation
of
this
shift
is that Weber
withdraws from
the
possibility
that value
judgment
might
in
some sense
be
regarded
as
both
part
of
empirical
science
and
objective.
His
effort
to free
sociology
of
value
judgment
is renowned
and
has
had enormous influence.
But
in
his
essay
on Stammler
it looks
distinctly
shaky.
For is
it
not essential
to
the
idea
of
legal
judgment
that
it is
objective?
This
means that
the
judge
rightly
understands the
legal
rule
he
is
implementing
and
correctly
applies
it
to the facts he considers. Indeed
sociological
studies of law defacto make the assumption that objectivity in the use of law is possible,
even
if
widely
broken.
For
instance
the
basis
of
many
statistical
studies of court
judgments
is
that
there
are features
of verdicts taken
over
a
wide
number of cases
which
suggest
that
some
categories
of
person
receive
more
favoured treatment
than others.
Implicit
in
these
studies
is
a
notion of
how
verdicts would
be
distributed
if bias did not enter
in.
Absurd
though
it
may
seem,
this
simple
statement,
value
judgments
may
be
objective,
is
quite
at
odds
with the
views
of
Max
Weber
and
I would
say
the
vast
majority
of
sociologists
since
him. Indeed
for
the vast
majority
it is a
patent
contradiction
in terms
to
say
this,
for
value-judgments
are
held to be in their nature
subjective.
This is not
the
place
to review the philosophical doctrines and technical ideologies which underlie this view.
I
regard
it
as
an
aberration
of
high
capitalism.
Briefly,
the whole
point
of
talking
about
value-judgment
s to
indicate
the
objective
nature
of
it. What
is
subjective
in
evaluation
is the
personal
commitment
to value
(though
even
that
is
open
to rational
influences,
which
again
Weber
would
deny).
It is not
infrequent
that
value-judgments
are
made
by
those not
committed
to them. The
judge
may
not
agree
with the
law
he is
asked
to
interpret
and
administer,
but that does
not
help
those who
suffer
his
unwilling
verdict.
This
capacity
to
express
value-judgments
and
remain detached
from
26
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15/19
them
is
characteristic
f
modern
ife.
Both
lawyers
and
sociologists
often
feel
themselves
in this
position.
Both
sociologists
and
lawyers
are
interested
n
the
meaning
of
rules
and
the
way
they
are
applied
n
social life. Thereare
differences
n orientation
between
awyers
and
sociolo-
gists
but these differences
o
not
hinge
upon
the
commitment
f
the
lawyer
as
against
he
detachment
nd
empiricism
f the
sociologist,
Now
if
this
is
so,
Weber's ontrastbetween
the
sociological
and
juristic
point
of
view on
law
is
ill-founded.
Moreover
his criticism
mustalso
extend
o his
concept
of law
for
we showed
how
intimately
t was
connected
with
his
methodological
iews.
In fact we
found
that
Weber's
reatment
f
the
concept
of
law
was
at
variance
with
his
ideas on how the
sociologist
considers
ethics and
conventions,
namely "exclusively
n
accordance
with
the
notion
of
the
'ethical'
which
s
actually
held
by
the
people
n
question".
I
think
again
this
is
to be
explained
by
his
determination
o
invent
a
rigid
dichotomy
between
he idea
of lawandthe
idea
of socialscience.
For if one considers
his dictum
n
respect
of
ethics
and
conventions,
hat
is
from
the
point
of view
of the actor
which
Weber
is famouslyassociatedwith in contextsother than law, it becomesapparentthat the
sociologist
must take
on some
of the
functions
which
in
respect
of law
he thinks
are
exclusive
o the
lawyer.
To writeabout
the rules
of
everyday
ife involves
a
conceptual
reativity
n
the
part
of
the
writer.
One
cannot
turn
to a Code
of
everyday
ules.
One
has first
to write
an
account
of those
rules
one
believes
are
held
by
the
actors
n
question
andthen
to
ascertain
whether
or
not the
rules
are observed.
Eventhat
is a
simplification
f
a
complexprocedure
or
very
often
the
existence
of
the
rule
is
only
inferred
rom
socialreactions
o
its
breach.
In
the
study
of
the norms
of
everyday
ife or in what
used
to be called
the
sociology
of
morals
thereis a simultaneous rocessof abstractionromrealityandjudgmenton that reality.
In
this
respect
he
sociologist
has
all
those functions
which
n
respect
of law Weber
eserved
to the
jurist.
He
both
clarifies
alues
and
makes
udgments
n terms
of them.
(I
happen
also
to believe
that
this cannot
be
donewithout
commitments
o values
but this
is beside
the
point
here).
Now
if
Weber
were
to
allow
the
sociologist
o do this
in
respect
of law
it is clear
that
he
would
be
allowing
himto have
the same functions
as the
jurist
and
giving
him
a
con-
structive
part
in
the
definition
of law
as
well as the
legal
process.
This
would
certainly
derogate
rom
the
dignity
of law
and its
independence.
Hence
we
get
Weber's
nsistence
thatthe sociologist'sconceptof law is differentromthe lawyer's, n insistencewhichwe
found
had
an
increasingly
ollow
ring
to it as Weber
akes
on the role
of
partisan
or
a
particular
uristic
heory
n
his
account
of Law
in
Economy
nd
Society.
Weber's
concept
of law
is
unacceptable
recisely
because
he wishes
to
argue
for
a
fundamental
istinction
between
ociological
nd
legalpoints
of view.
We have
to
recognise
that
in a
very
mportant
ensethe
jurist'sconception
of lawis
already
ociological.
By
that
I mean
that
as
a
general
concept
t
already
nvolves
an abstraction
rom
a
multiplicity
f
concrete
circumstances
nd
in its universal
pplicability
cross
the boundaries
f
different
27
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cultures
expresses
a
highly
abstract notion.
While
the
practising
lawyer,
barrister
or
solicitor,
probably
has some
general
idea
of this
exceedingly
abstract
entity,
he
is able
to
conduct
his
daily
work without
concerning
himself with
it. In
general
he is
concerned
with
the
law
of
this
or
that,
at most
with
English
law,
if
he works
in
that
social
system.
"Law"
in
the
general
and
abstract
is
a
jurisprudential
creation
based
upon
a
joint
process
of
conceptual
abstraction
and
empirical
generalization.
What
Weber wants
to
do
is
to confine the
conceptual
abstraction
to the
jurist
and the
empirical generalization
to the
sociologist.
This
is
not
possible.
They
are
phases
of
the
same
dialectical
process.
The
conceptual
abstraction
is
performed
in
the context
of
encounter
with
different
systems
of
law: the
empirical
generalization
takes
place
against
the
background
of decisions
on what
is to be
understood
by
law.
Weber
wishes to offer
a
"sociological concept
of law"
without
attending
to
the
meaning
of law
as
understood
by
jurists,
or indeed
by
anyone
else
in
society.
This
cannot
be
done
in
a
sensible
way
and
in
the
event it is
not
surprising
that
Weber's
own
treatment
of
the
sociology
of law
shows
that
he
regards
his
view
of
law
as
a
valid
juristic
doctrine
ousting
the
rival claims
of
other
schools.
An attack on these methodological tenets impliesa criticismof Weber'sdevelopmental
account
of law
in
society,
for,
as
I
have
stressed
already,
the account
of
a
strict
separation
of
formal
and substantive
rationality
in law
is
founded
on
this
methodology.
The
lawyer
is
removed
from
any
interest
in the
real world
and finds
both his intellectual
satisfaction
and
his
power
position
in the
immanent
logical
coherence
of
the
system
of
legal propositions.
Rheinstein,
who
greatly
admires
Weber,
already
suggests
that this
rigid
separation
of
formal
and
substantive
rationality
is
taken
too
far. His criticism
is made
in the mildest
of terms
but
it
is nonetheless
telling.
"Even
the most
highly
abstract
legal
concepts
have been
derived
from
typical
constellations
of
actual
life
and
in
connection
with
considerations
of
some
social
policy,
that
is
substantive
rationality."27
Rheinstein
illustrates
this
by taking
the
highly
abstract
concept
of dominium
and
arguing
that
this
describes
the
complex
situation
in a
community
where members
are
ascribed
the
right
to
enjoy
a
tangible good.
It
only
makes
sense
in a
community
which
ascribes
enjoyment
of
goods
to
individuals.
The
concept
may
be
put
to uses
for which
it
was
not
intended,
but
then
these
conclusions
"have been drawn
by
law
specialists
who have
lost
sight
of
the
actualities
of life
which lie behind
the
concepts."28
While
also
an admirer
of
Weber,
I would be
much
more
inclined
to
severity
than
Rheinstein
because
it
is
on
the distinction
of formal
and substantive
rationality
that
the
whole of Weber'shistoricaldevelopmentalaccount depends. It is an account founded upon
an
untenable
belief
in the
irreducibility
of law
and in its
possession
of the
same
character-
istics
as
formal
logic.
On Weber's
analysis
it is indeed
possible
for law
to
operate
like
the
slot
machine:
feed in the facts
and the
judgment
emerges.
Just as in
his
analysis
of
bureaucracy
the
one
thing
which is taken
for
granted
is that
there will
be no
problems
in
the
interpretation
of
rules,
so
in his account
of law
it is
possible
for the
interpretation
of
a
27
Ibid.,
p.
Ivii.
28
Ibid.
28
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17/19
rule to have the
determinacy
f
pure
logic.
Repeatedly
he
uses
the
phrase
"the
logical
interpretation
f
meaning".
But
meaning
s
not
interpreted
y logic.
Meaning
s
understood
throughexperience.Logic
refers o the structure f
an
argument,
ot to
the
meaning
of
its
terms.
The "correct"
r
"objective"
nterpretation
f rules
depends
on
shared
understand-
ings
and
not on
logic.
It is the
degree
of
deductive
ogic
involved
n
the German
view of Roman aw
which
impresses
Weberand leads him to see it as the
apogee
of
rationality,
hat
gapless ystem
of
propositions
n
which
t is
possible
o derive
a
decision
n
every
concrete
egal
case
by
means
of
legal
ogic.
This kind of
"rationality"
s
properly
alled
"rationalism". or
the
ability
o
include he
whole worldwithina
single
set of
propositions
s
not of
itselfrational.The
fact,
for
instance,
hat
I
may
assert hat
all that
happens
n
the
world
s an
expression
f
either
the
"yin"
or
the
"yang"
factor does
not,
in
spite
of the
promising omprehensiveness
f
my
belief,
guarantee
ationality.
Weberadheres
o a form of
"pan-logism"
which
has its extreme
orm
in
the
ideas
of
Hegel,
but
characterizes
much of German
hought.
In Weber'sdismissiveattitude o the
empiricism f English aw and his rejectionof the idea of reasonableness ecauseof its
technical
mprecision
we
can
see the
expression
of one
of the
major
cultural
cleavages
n
the
Western
world. It
is
a
cleavage
represented
ery
obviously
n different
ystems
of
legal
thought
and
practice,
but also
in
philosophy,
administration
nd
science and is still a
significant
actor
in
the lack
of mutual
understanding
etween
the
Anglo-Saxon
and
Germanic
worlds.
When
the
extraordinary
nd
irrational
ascination
with
formal
ogic
is
recognized
n
Weber's
work,
then the
source
of so
many
of his
paradoxical
nterpretations
f the
develop-
ment
of modem
aw becomes
apparent.
Only
f
one believes
hatthe intentions
f the
parties
to a contractare irrelevanto formal egallogicis it possible o consider he mostmodem
developments
f commercial
aw as
somehow
a breakwith
the
necessary
ower
of
formal
law.
Only
on this basis
is
it
possible
o
reject
n
principle
he
participation
f
juries
n
the
legal
process.
Only
in
this
way
is
it
possible
to see
juristic
precision
uffering hrough
he
"intrusion"
f
sociological,
conomic
or ethical
argument.
In an
important
ense
Weber's
mphasis
on
formal
rationality
rivializes he
functions
of
law
in
society.
As is
apparent
by
his
own historical
analysis
t is difficult
o show
any
clear
relation
between
ormal
law and the modern
economy. Very
different
egal
forms
provide
the
framework
or
capitalistic
development.
Propositions
f
any
content
whatso-
evercanbe partof a legalsystem.Lawhas no substance,t becomesmereform.Lawyers
become
he
narrow
repr