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Truth Claims and Value-Freedom in the Treatment of Legitimacy: The Case of Weber Author(s): David Campbell Reviewed work(s): Source: Journal of Law and Society, Vol. 13, No. 2 (Summer, 1986), pp. 207-224 Published by: Blackwell Publishing on behalf of Cardiff University Stable URL: http://www.jstor.org/stable/1410281 . Accessed: 23/12/2011 23:37
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JOURNALOF LAW AND SOCIETY VOLUME13,NUMBER 2, SUMMER 1986

0263-323X$3.00

TRUTH CLAIMS AND VALUE-FREEDOM IN THE TREATMENT OF LEGITIMACY: THE CASE OF WEBER
DAVIDCAMPBELL* INTRODUCTION Actorswho believethat a social orderis legitimate hold that the analytically claimto legitimacy of the orderis true.It is frequently that a distanced argued theoretical on an order's must one of two distinct commentary adopt stability lineswhenaddressing suchbeliefs.Onewouldbe simplyto takenote of these beliefsanddiscussthe legitimacy divorcedfromits truthclaim. theyrecognise would thus be as a Legitimacy represented just psychologicalphenomenon whoserelationship to truthis ignoredfor thepurposes of empirical study.The otherapproachwouldbe to assessthe truthfulness of the claimto legitimacy andeitherendorsethe beliefs,andwiththemthe order's stability,or not. The firstof these lines is taken to be the interestof empiricalscienceseekingto thesecondis theseparate interest of ethicsseeking explaintheorder's stability; to pass practical judgmenton that stability.
In this paper I shall argue that the separation of these two interests is

WhilstI could directmy criticismto eitherthe fundamentally insupportable. scienceor the ethics which follows from this separation,I will concentrate upon the formerhere. I will contend that the value-freeempiricalstudy of whichpurportto legitimacyis impossible,and that scientificcommentaries have carried it out merely conceal the value-judgments they necessarily contain. I do not say this in order to claim that empiricalsocial study is impossible.Rather it is to argue that, properlyconceived,the interestof committedto practical empiricalsocial scienceis one which is intrinsically intervention. of this not limits the valueof science Suppression only practical but actuallyleadsto empirical incoherence. I will arguethis througha consideration of Weber'spursuitof a value-free treatmentof legitimacy.I shall use this device because,as we will see, his treatment raisesthe fundamental issuesposed by any suchattempt,and does
*School of Law, Lancashire Polytechnic, Preston, PRI 2TQ
This paper was drafted during studies at the University of Michigan School of Law, which I should like to take this opportunity to thank for its hospitality. I should also like to thank Dave Burnet and especially John Holmwood for their comments.

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so in a waywhichis not opento the mostobviousobjections to value-freedom whichcan be levelledat, forexample,legalpositivism. Weberclearlyconducts his politics as a polemical interventionin the public consideration of legitimationclaims, particularlythe competing claims of capitalismand socialism.In his sociology,by contrast,he unequivocally setsout to pursuean account of legitimacy that does not evaluate the truth claims of the of beliefs in legitimationsexamined.For Weber,value-freeunderstanding of is the their truth the of scientific discussion legitimacy irrespective requisite of legitimacy. Weber'sapparentsuccessin arriving at such an understanding necessarily restson a hiddenarticulation of specificvalue-judgments. Weber's"observational understanding" of particularhistorical legitimationclaims in fact containsa systematicevaluationof those claimsfrom the perspective of his own resigned of truth the of The hidden acceptance legal-rational legitimacy. then, destroysWeber'saspirationsto expressionof these value-judgments, for whilstit is clearlyforbidden value-freedom, by his formalmethod,we will in that it is see fact intrinsically by much of what is valuablein the required contentof his sociology. empirical

THE CONTRADICTORY FORM OF WEBER'STREATMENT OF LEGITIMACY of legitimacyis developedthroughouthis Weber'sformalconceptualisation constructionof a sociologicalapparatusfor the examinationof action in and Society.2 Beliefsin legitimacyare a type of orientationto an Economy order:
Action . . . may be guided by the belief in the existenceof a legitimateorder.The of the that actionwill actuallybe so governedwill be called the "validity" probability orderin question.3

to the highestpossibledegreeof stabilityof an order: Validitycorresponds

of a widevariety inconcrete of actionto anorderinvolves cases,theorientation Naturally, the order motives.Butthecircumstance that,alongwiththe othersourcesof conformity, is also held by at least some of the actors . . . to be binding,naturallyincreasesthe thatactionwill in factconformto it, often to a veryconsiderable degree.An probability muchless stable is generally orderwhichis adhered to frommotivesof pureexpediency basis throughthe fact that the corresponding than one upheldon a purelycustomary behaviour hasbecomehabitual . . . Buteventhistypeof orderis in turnmuchlessstable of beingconsidered thanonewhichenjoystheprestige or, as it maybe expressed, binding, of "legitimacy".4

in two respects which is characteristically Thisconceptof legitimacy Weberian we mustnote. Firstly, it clearly articulatesthe particularkind of explanationWeber's sociologytriesto put forward.An orientationis firstidentifiedas a beliefin and thenan explanation of stabilityon the basisof the probability legitimacy 208

of that belief being held is built up. In his own terms, to which I will return, Weber initially observationally understands the meaning of a particular orientation to an order to be a belief in the order's legitimacy. He then proceeds to motivationally understand the order's stability as the probability of actors guiding themselves according to that belief, a probability measured as validity. There are two typologies of legitimations in Economy and Society corresponding to this two-stage explanation of stability.5 The first, classified according to observationally understood beliefs in particular claims to legitimacy, is of concepts adequate at the level of meaning to the diversity of ways in which "The actors may ascribe legitimation to a social order . . . "6 The second, listing different grounds of validity, is of concepts motivationally understood to be causally adequate to the ways in which "The legitimacy of an order can be guaranteed . . . "7 Secondly, Weber's treatment of legitimacy is informed by a rigid fact/value dichotomy. Sociology's subject is only the existence of stability. Legitimacy is to figure only in the explanation of the empirical consequences of particular orientations, treating it solely as a means of producing stability through validity:
Naturally, the legitimacy of a system of domination may be treated sociologically only as the probability that to a relevant degree the relevant attitudes will exist and the corresponding practical conduct ensue.8

Weber's discussion analytically involves values as the bases of beliefs in legitimacy. Values must be identified so that legitimacy might be understood as a specific form of orientation. However, the value itself is, as strongly as can be insisted, to be incidental to sociological commentary on its existence.9 The value may be taken to be expressed in the empirical fact of action orientated by beliefs in legitimacy, and this is all that is material to science, though of course a non-scientific ethical interest in the substance of the value can be taken, if it is strictly demarcated.10This scientific agnosticism is made particularly clear in the concept of charismatic domination:
The term "charisma" will be applied to a certain quality of an individual personality by virtue of which it is considered extraordinary and treated as endowed with supernatural, superhuman or at least specifically exceptional powers or qualities . . . how the quality in question would be ultimately judged from any ethical, aesthetic or other such point of view is naturally entirely indifferent for the purposes of definition. What is alone important is how the individual is actually regarded by those subject to charismatic domination . . .

It is on this value-free basis that Weber feels able to run his treatment of legitimacy together with considerations of power to produce a typology of forms of legitimate domination.12 Domination becomes valid when the actors subject to it believe in its legitimacy:
Custom, personal advantage, purely affectual or ideal motives of solidarity, do not form a sufficiently reliable basis for a given domination. In addition there is normally a further element, the belief in legitimacy.13

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The concept of legitimate domination is to express an agnosticism similar to that afforded by treatments of legitimacy in broadly contemporaneous elite theory exemplified by Mosca's "political formula".'4 When Weber holds that beliefs in legitimacy maintain the stability of an order of domination he by no means wishes to confer any actual legitimacy upon that order. He merely wants to point to the empirical significance of validity:
Experience shows that in no instance does domination voluntarily limit itself to the appeal to material or affectual or ideal motives as the basis for its continuance. In addition every such system attempts to establish and to cultivate the belief in its legitimacy.'

I will take up Weber's methodology of sociological explanation and valuefreedom at greater length in a little while. For the moment, I want to set out the central problem bound up in the value-free treatment of legitimacy, and I will do this by arguing that Weber's commitment to such a treatment produces a major contradiction in his work, preventing the coherent formulation of the explanation he purports to put forward. Faced with an orientation that increases stability, it is a task common to both the ethical and the scientific interests to understand that orientation as a belief in legitimacy in order to ascertain the character of their subject matter. Scientific value-freedom can hardly consist in this first step, for ethics must also be value-free in this sense. It would be impossible to contest the actual legitimacy of an order if one did not understand its stability as resting on validity in the first place. The political writings in which Weber set out his scepticism about the 1917 Revolution whilst allowing that a sincere preference for socialist rather than capitalist economic organisation at least significantly underpinned it are a case in point.16 Nor, for Weber, can science and ethics part in their reference to meanings with a value content. When actors orient action through beliefs in legitimacy, sociology has to observationally understand their orientation as such and convey that understanding. Consider the following account of attitudes developed under the prophetic religions:
To exploit unscrupulously one's particular class position in relation to less powerful neighbours in the manner typical of precapitalist times - through the merciless enslavement of debtors and the aggrandisement of land holdings - meets with considerable social condemnation and religious censure . . . 7

Had Weber failed to use value-laden terms in the above account he would simply have failed to identify "condemnation" and "censure"and the reasons for it -"unscrupulousness" and "mercilessness". The social acts would have escaped the sociological account, for the facts are values. Of course, if, as it seems in the above quotation, Weber allows actors' value judgments to stand as such, then the resultant passage into his accounts of actors' understandings will create the value position of effective affirmation of the actors' beliefs. In another context, Weber considers it unfortunate that it is too pedantic and cumbersome to use only a pure sociological terminology which would obviate the use of actors' own expressions in sociological writing.1 I am certain that this is a mistaken complaint, but Weber is certainly 210

registering the problem with value-free discussion of legitimation beliefs. What Weber himself does about this problem is take over the actors' terms but then try to distance himself from their meanings by a use of quotation marks and qualifying circumlocutions that in German is so overwhelming as to be really irreproduciblein English.19This must be read as a rudimentaryattempt to develop a sociological meta-language of legitimacy which works with, but is not committed to, the actors' beliefs. To put such words as "unscrupulousness" in inverted commas perhaps allows Weber to say that this is so according to standards about which he is agnostic. All this can, I think, be said of a theoretical distance taken from actors' beliefs in both ethics and science. But, having gone this far together, on Weber's account these two interests must now part. The former can go on to inquire into the correctness of the beliefs in legitimacy under consideration. The latter must remain at the level of the beliefs. This would seem to mean allowing, for scientific purposes and with no actual endorsement by any means intended, the truth of the beliefs. Whatever one's ethical opinion of the beliefs, science can pursue its interest only by adopting a complete agnosticism which allows any claim to legitimacy to stand whilst its empirical consequences are pursued. As actors did orient themselves according to the beliefs (assuming that they did), it would be empirically mistaken to deny those beliefs a place in explanation. One must allow the beliefs as a fact, and not deny this fact because one disagrees with it. Though Joseph Smith may well have been a swindler, for example, it would be an error to deny the force of his charisma in creating mormonism.2 The eschewing of possible penetration into the truth claims of legitimations is regarded by Weber as the cost of science, but it is surely not only ethical but also empirical penetration that is lost. If one allows a legitimation claim, however reservedly, one cannot go beyond the actors' own understandings of their acts. The actors' beliefs will contain their own explanation of those acts, based on the legitimation being true. If the sociologist may possibly know of the legitimation being false, to eschew replacing the actors' own comprehension with an explanation that is superior is a simple renunciation of the scientific interest. The same can be said of a refusal independently to confirm a legitimation one knows to be true, for it also constitutes an empirical penetration of beliefs independently to show them to be correct. If we knew that Smith was a swindler, then an account which deepened our knowledge of his influence by showing it to be the product not of genuine charismatic commitment but of pretence would be a superior empirical account than that which those who believed in him could put forward. Weber is led to his profession of agnosticism because he conflates the scientific recognition of beliefs with acceptance of the beliefs as, for scientific purposes, true. Value-free representation of beliefs must refrain from challenging those beliefs. But, of course, one can understand actors' beliefs as beliefs in the truth of a legitimation whilst simultaneously denying that truth and thereby denying the adequacy of the actors' self-understanding. It would certainly be a disastrous error to deny that actors acted from beliefs in 211

legitimacy because one does not agree with the legitimation. However, as we can register the belief and our evaluation of it, we need not make this error; whilst on the other hand there is a compulsion empirically to penetrate the beliefs' truth claim. I say compulsion here, for this is not merely a question of what is desirable for science but rather it is a question of what is necessary. Setting aside objections to this, let us allow that Weber could always use actors' value-laden descriptions of their acts in a way that conveyed his distance from those value positions. The results of this would surely have very little explanatory content. Apart from conveying the initial identification of the general orientation of the action as being through beliefs in legitimacy, we are told nothing if we are presented with detailed understandings which certainly turn on the legitimation being true which are then put in inverted commas precisely to enter a reservation about that truth. That is to say, we are told nothing if the inverted commas are taken seriously. But in the absence of any alternative account we would either stop reading or, by the force of Weber's omission of anything else, be bound to read the use of the actor's terms as an affirmation. This may be an affirmation only up to a certain point, but the certain point seems to be a purely formal rhetorical caveat about value-freedom. To be perfectly frank, though it takes us rather ahead in the argument, Weber does not really present us with this choice between tautologous affirmation of actors' meanings or no explanation at all. Rather his own sociological accounts can always be seen to take a value stance with regard to the legitimations discussed. It is a stance which, by continuous reservation about the truth of those legitimations, and by its effective putting forward of explanations of alterations in stability not in the actors' own terms but in those of Weber's scheme of legitimate domination, turns agnosticism into cynicism. The two are not, as Weber seems to believe, the same thing. Weber fundamentally claims that legitimation claims arise from:
. . the generally observable need of any power, or even of any advantage of life, to justify itself. The fates of human beings are not equal. Men differ in their states of health or wealth or social status or what not. Simple observation shows that in every such situation he who is more favoured feels the never ceasing need to look upon his position as in some way "legitimate", upon his advantages as "deserved", and the other's disadvantage as being brought about by the latter's "fault". That the purely accidental causes of the differencemay be ever so obvious makes no difference. This same need makes itself felt in the relation between positively and negatively privileged groups of human beings. Every highly privileged group develops the myth of its natural . . . superiority. Under conditions of stable distribution of power and, consequently, of status order, that myth is accepted by the negatively privileged strata.21

Accounts of legitimations on this basis cannot be the same as those put forward by those who believe the legitimations to be true (except in the case when the legitimation is itself couched in terms of cynical disenchantment) and, indeed, we will see that they are not when we examine Weber's own accounts. 212

TheconclusionI thinkwe mustreachis that,beyonda preliminary stageof the denotationof beliefsin legitimacyas subjectmatter,a stage commonto both ethicaland scientificcommentary, value-freedom contradictsnot only the formerbut also the latter interest.It is a limitationon science in the peculiarlystrong sense that it prevents the coherent formulationof any sociological explanation at all.22 Once one goes beyond the stage of preliminaryidentification and embarks upon detailed description and explanationproper,one must eitheremploy(and to all intentsand purposes the actors'value-based or takea distance therebyaffirm) self-understandings, from those understandings which itself, in consequenceof the explanations now put forward either being the same as or different from the lay takesup a valueposition.Value-freedom cannot understandings, necessarily avoid taking up this position, but it can removedoing so from the social consciousdirectionandmakethe character of the positionadopted scientists, difficultto ascertain.This is, as we shall see, preciselywhat happenswith Weber. Thecontradiction betweenvalue-freedom andexplanation has,as a matter of fact,visiteditselfuponthe Englishspeaking of Weber's treatment reception of legitimacyin a peculiarlydirect manner.It has createdan irresolvable ambiguityin the translationof the key compositeconceptWeberarrivesat, that of legitimatedomination.In the Hendersonand Parsonstranslation of
part one of Wirtschaftund Gesellschaft as The Theoryof Social and Economic Organisation, "legitime Herrschaft" is rendered as "authority".23 Roth and

Wittich'spartial revision of this to a combinationof "domination"and is surelymorein linewiththe senseWeberintended, andI have, "authority"24 following the argumentsof Bendix25and Mommsen26,consistentlyused "domination" here.Weber's intentis to focusmerelyon theempirical stability of an order,thechanceof actionbeingin compliance withit. Hencenot only is legitimacy treated in the way we have seen, but law27 and political are to be reducedto their exerciseof coercion to secure organisations28 and churches30 to theirexerciseof disapproval. conventions29 compliance; There is a rhetoricaltendencyto separateHerrschaft from Macht (power) in Englishby the use of authority,31 and clearlyWebermeansto encouraged reduceall ordersto a questionof Macht.Dominationis therefore the better but thereis morethanan etymologicalpoint at issuehere. translation, Withthe formulation Webermeansto runtogethera "legitime Herrschaft" direct understandingof actors' beliefs as beliefs in legitimacy and a sociologicalexplanationof stabilityin terms of power. But this is not the of conceptswhichit seemsin combination simplematterof the unproblematic the almost mathematicallyaustere prose of Economyand Society. The of an ordercannotbe languagewhichrenders genuinebeliefin the legitimacy the language whichrenders the sociologicalaccountof thatorder'sstabilityin termsof power.Thelatterlanguage mustopposethe truthclaimat the basisof the legitimation. Thecuttingthroughof actors'beliefsin an order'slegitimacy by sociological accounts of the mechanismsof securingcompliancewith 213

power relations is not agnostic as to the legitimation's truth claim; it is a dismissal of that claim. Weber wants the very same concept to express fitness of obedience and the coercive basis of obedience. This simply cannot be done.32 One has to convey one or the other, though one may then go on to convey either as understood in terms of the other. If one wants to follow Weber's intentions, one should convey cynicism.33 But the possibility of finding a commitment to the fitness of obedience in Weber's treatment of legitimacy cannot be ruled out, and indeed it becomes manifest in his discussion of legal-rational domination. Though there would seem to be little doubt that the rendering "authority" owes much to the consensual elements in Parsons' functionalism, explicitly represented in those writings where he attempts to strip "power" of its connotations of opposition and conflict, it is a rendering which draws attention to this side of the contradiction in Weber's treatment of legitimacy.34 Having, I trust, preliminarilyset out the contradiction that seems immanent in a value-free empirical discussion of legitimacy, I would like now to examine the elements of such a discussion in greater detail.

IDENTIFYING BELIEFS IN LEGITIMACY For Weber sociology is, of course, the science of interpretativeunderstanding:
is a scienceconcerningitself with the interpretative of Sociology .. understanding socialactionand thereby witha causalexplanation of its courseandconsequences.35

As such, sociology has two constituent operations, observational (aktuelles Verstehen)and motivational understanding (motivationsmassig):
of Understanding maybe of two kinds:the firstis thedirectobservational understanding the subjectivemeaning of the given act as such, includingverbal utterances . . may, however,be of anothersort, namelyexplanatory understanding Understanding . . .This is . . . understanding of motivationwhichconsistsin placingthe act in an andmoreinclusive contextof meaning.36 intelligible

A basic identification of an act as expressing a particular meaning is achieved through observational understanding, and this is preliminary to placing that act in an explanatory context by motivational understanding. The relation of these operations is that of two discrete, sequentially ordered stages of understanding. For example:
We . . .understandan outbreak of angeras manifested exclamby facialexpressions, of irrational This is directobservational ationsor irrational movements. understanding of anger emotional reactions. . . we havea motivational of theoutburst understanding if we knowthatit has beenprovoked byjealousy,injured pride,or an insult.

This conception of sociological explanation turns, of course, upon Weber's famous attempt to develop a complementary rather than an antagonistic contrast between understanding (verstehen)and explanation (erklaren), that 214

is, between hermeneutic and positivistic types of explanation, within what is now known as the methodological crisis (Methodenstreit) of German social studies (Geisteswissenschaften). The impetus of his attempt was an abiding recognition of the peculiar quality of understanding in sociological explanation coupled to a criticism, particularly directed towards intuitionism,38 of verstehenas a sufficient(or, in the strict sense of direct re-living of the act being considered, even necessary)39 basis of understanding. Weber took from marginalist economics a stress on predictive rigour in explanation,40 and sought to complete interpretative sociology based on observational understanding by incorporating into it the positivistic elements of the stage of motivational understanding. In this respect, Weber's method represents one a form of the most substantial attempts to bring into the Geisteswissenschaften of causal account based on the pattern of the (positivistically understood) natural sciences. Let us examine the consequences of this conception of sociology for the very identification of beliefs in legitimacy. As Weber makes clear, the very possibility of sociology arises because some physical deeds, which he terms actions, express a meaning. Other deeds constitute behaviour which does not arise from actors' having a meaning but rather tends to be the product of psychophysical stimulae.41 Accounting for the characters of orders will obviously involve reference to behaviour as well as action, not to speak of reference to the range of natural sciences,42 but sociology offers a unique quality in its explanation of action. This quality is the understanding in the sense of gaining a comprehension of what the action meant to the actors which sociology can achieve.43 Now, this is not only a resource for sociology but also a duty for the sociologist, for sociology must identify its subject matter in this way. The meaningful quality of action must be grasped in order to comprehend at all the science's subject matter:
Take two people who in other respects have no social relationship and who "exchange" two objects with each other. They could be savages of different tribes, or a European and a savage who meet in darkest Africa. Quite rightly one puts emphasis on the fact that a simple depiction of the overtly perceivable course of events, the muscle movements and, if there is "speaking", the sounds, which make up the "physical" events in no way captures their "essence". For this "essence" consists of the "meaning" which each imputes to the external behaviour and this "meaning" of their present behaviour in turn sets the "regulation" of their behaviour in the future. Without this "meaning", one says, an "exchange" would neither be possible in reality, nor even conceivable. Quite so!44

This drawing out of an essential task of sociology poses a most important initial problem for the empirical study of legitimacy. We recall that the thrust of Weber's treatment of legitimacy is to reduce it to neutral validity and thence to stability (and with it law to coercion, convention to condemnation, etc.). He goes about this whilst also setting himself the task of identifying the existence of an order held to be legitimate by using concepts adequate at the level of meaning to the actors' beliefs, that is to say, given value-freedom, concepts which do not challenge the actors' own sense of that legitimacy. When the identificatory work of Weber's sociology is clearly set out in this way, it becomes, I think, apparent that he cannot do both. 215

If we consider some of Weber's own discussions this readily emerges. When discussing the patriarchal belief typical of traditional domination,45 he says that, for example:
Under patriarchaldomination . . . the belief in authority is based on personal relations that are perceived as natural. This belief is rooted in filial piety, in a close and permanent living together of all dependents of the household which results in an external and spiritual "community of fate". The woman is dependent because of the normal superiority of the physical and intellectual energies of the male; and the child because of his objective helplessness; the grown-up because of habituation, the persistent influence of education and the effect of firmly rooted memories from childhood and adolescence; and the servant because from childhood on the facts of life have taught him that he lacks protection outside the master's power sphere and that he must submit to him to gain that protection. Paternal power and filial piety are not primarilybased on the actual blood relationship, no matter how normal this relationship may be for them.46

In this he is clearly understanding the bare fact of a belief in legitimacy in a way quite different from the way it is actually understood by the subject actors, as the equivocation over "perceived as natural" should alert us. The concrete content of the fact, its meaning for the actors, is replaced by its meaning for Weber.47Such a shift is not in itself illegitimate, so long as it is recognised and its explanatory power held up as an issue. A concrete belief in a master's right might well be the product of ingrained habituation,48 producing virtual behaviour rooted in immemorial tradition.49 But to say this is to dispute the actors' own understandings, recognising them to be based in legitimacy but then rejectingtheir own, let us say, belief in the natural givenness of hierarchy. These remarks are obviously critical of Weber, but it is as well to point out that they are able to be made only because Weber sets himself understanding as an issue when addressing legitimations. This is typically not the case with legal positivist attempts to make the reduction of law to coercion in order to give a value-free empirical account of legitimacy. Though these attempts involve a purported descriptive sociology50 of observable dispositions,5 ' how the description or observation is to be made is not raised as a question. These discussions claim to be able to identify a legal system through sets of behaviour, but the principles of identification are those of the describer, not the described. A truly paradoxical situation arises out of this. Legal philosophy of this sort has in fact never adequately addressed the political philosophical issues of legal legitimacy, and, indeed, there remains an ethical void here essentially as it was left by Austin.52 To point out that such difficult problems remain here is, of course, in itself, no criticism. Strangely, however, irresolution here is represented as value-freedom when attention is turned to the empirical study of beliefs in legitimacy, which are reduced to being the products of coercion, a position which is thought to be agnostic about the claims of those beliefs. It becomes difficult to distinguish the gunman from the tax collector53 when one's supposed observations have had the effect of reducing both to coercion. (There may indeed be no ethical difference, though I doubt it, but this is not the point.) If one reduces gunman and tax collector to coercion and then bases one's account of tax-paying in these terms, this is not a value-free discussion of such acts, it is a rival account 216

to the actor's own, which is presumably based in a belief in the legitimacy of the tax or the general legitimacy of the tax-paying. In the alternative, if the actors actually believed that coercion was at the basis of the tax, then it is not value-free in effect to agree with this. Confusion over this point arises in that there is little proper empirical study going on here, for the nature of the beliefs studied is never taken into account except as through the legal positivist's eyes. It is only when legal positivism's ethical reservations about law are confused with empirical study that the opposition of coercion to the very meaning of beliefs in legal legitimacy can be ignored. What empirical content is present may be called behavourist, both to draw attention to the contrast with Weber and to locate legal positivism within a certain idea of sociological method. For this method, the understanding of meaning is not regarded as central to sociology, rather it is thought to be irrelevant as the subjects of sociology are physical motions. A legal system of social control apparatuses54 can easily be described in a purportedly valuefree way on this basis, for the problem of coming to terms with the subject actors' own meanings appears never to arise. The suspicion remains, however, at least in the best of legal positivist writing,55 that the social control apparatuses described in this way, ignoring their at least extremely strong empirical connection with legitimation claims, simply leave out of the description a central element of the legal system which they purport to explain. Until understanding is made central to the legal positivist idea of empiricial study, no resolution of this difficulty can really be expected. Though the empirical difficulties in even identifying the subject matter of discussions of legitimacy which attend value-free stances are thus brought to light by Weber, I want to go on to show in some detail that his commitment to such a stance means that he cannot deal with them. EXPLAINING BELIEFS IN LEGITIMACY We must be clear about the seriously limited way in which even Weber's conception of value-free sociology addresses problems of understanding. Though positivistic elements are added to observational understanding, the causal explanation remains, precisely, an addition to verstehen. The significance of this which I want to emphasise is that this addition as such can do nothing to improve the rigour of the separate, initial stage of observational understanding, which in Weber remains no more than a philosophically naive empathy.56 The scientific certainty (Evidenz)57 of observational understanding, its adequacy at the level of meaning (sinnhafteAdaquanz),is, Weber tells us, determined by the sociologist assessing how far the meaning attributed to the act is the typical basis of such an act.58 This is really nothing more than an appeal to verisimilitude. In effect, Weber treats meanings as simply available through acts, and pays almost no attention to making explicit how the sociologist is to observationally understand, and yet, of course, 217

he continuously puts forward the results of this operation. It is this unproblematic availability and communicability of meaning that allows the separation of observational and motivational understanding, for the latter need only be added to what is left as self-supporting, if not self-sufficient, empathy. I suggest that value-freedom at least strongly disposes Weber towards this position, for detailed consideration of how we are to understand arises as an issue only when we appreciate our inevitable distance from the subject beliefs, and value-freedom claims to have given up this distance. Paradoxically, Weber tends to lose his valuable advances upon behaviourism as his inattention to the difficulties of understanding converges with the simple behaviourist overriding of it. By default, the extreme formalism of the prose of Economy and Society seems to represent a neo-Kantian parallel to logical positivist claims to a neutral scientific observation language.59 There is, I think, a response which can be made to this criticism of Weber which arises from his setting out of observational understanding. This is to say that it is simply incorrect to claim that Weber did not spend time in elaborating observational understanding, and to point to his extended comments on the difference between understanding rational and irrational actions.60 Action is not sharply contrasted to behaviour by Weber but rather it is gradually distinguished, and even amongst those deeds which are granted the status of action distinctions of, as it were, degree of meaningfulness are recognised. Weber classifies four kinds of social action:
that in fourways.It maybe:(1) purposive-rational, Socialaction . . . maybe orientated and as to the behaviour of objectsin the environment is, determined by the expectations of the fortheattainment areusedas "conditions" theseexpectations otherhumanbeings; thatis, determined andcalculated actors'ownrationally ends;(2) value-rational, pursued or by a consciousbeliefin the valuefor its own sakeof someethical,aesthetic,religious of its prospects of success; otherformof behaviour, (3) affectual (especially independently emotional),that is, determinedby the actors' specificaffects and feeling states; (4) habituation.61 thatis, determined traditional, by ingrained

This classification constitutes a rough continuum along which Weber claims one can find a progressive clarification of observational understanding. Behaviour has no meaning and cannot be sociologically understood, and the almost psychophysically habitual or emotional traditional and affectual actions together with the ultimately affectual value-rational action can be understood less clearly than the paradigmatically rational purposiverationality:
endsby choosing certain whata personis doingwhenhe triesto achieve [W]eunderstand hasaccustomed as experience meanson thebasisof thefactsof thesituation, appropriate actionpossesses, of such rationally us to interpret them.The interpretation purposeful of the choice of means,the highestpossibledegreeof verifiable for the understanding certainty... on the other hand, many ultimate ends or values toward which experienceshows that human action can be orientatedoften cannot be understood
completely ... .62

218

All this is, however,ratheroff our point. Put forwardin the tone of selfthe evidence that is the very problem with observationalunderstanding, actiondoes not speakto thedeepening of of rationalandirrational distinction out of one of the at all. It is rather thequalityof thatunderstanding just setting its results,albeit a most importantone for Weber- the distinctionbetween deeds.Therecan be no doubt,of course,that rationalandirrational relatively in formulating this distinction Weber is addressing a most important issue - the structureof moderntechnical-rationality. But the contemporary underway he formulatesit, basically on the basis of verisimilitudinous musttendmoretowardsthe unmediated, ideologicalreproduction standings, of attitudes based in the cultural milieu of that structurethan towards on legitimation claims.63 scientific commentary in observational which Thereis in fact a strongcircularity understanding as follows fromthe way Weberpresentsthe extentof his own understanding of actions underconsideration. the measureof the intrinsicmeaningfulness as to theconceptionof rationality Weberhimselfdisplaysa basiccommitment and on this basis action becomesproperlyavailable technicalpredictability, for his sociologyonly to the extentthat it is purposive-rationally predictable. It is the centralfeatureof thatsociology,evenas muchas, say, is the casewith the economist Pareto's opposition of reason and sentiment,64that it is dominatedby orientationsto the modernwesternorder,65and all underValue-freedom preventsany standingis carriedout underthis domination.66 evaluative domination to that by obstructingany overtly perchallenge spectivefrombeingtaken. Thisis not to allow,to takeup whatI trustis now a cleartheme,thatWeber managesto avoidpassingevaluationsin whathe saysabout the legitimations arefounded he discusses. Thecharacters of the typesof legitimate domination in the typologyof social action. Traditional dominationrestson traditional of affectual of action,charismatic dominationon a combination orientations and value-rationalorientations.These types of action, though diverse on other counts, cruciallyexpress a common contrast to the rationalityof action through their defining feature, delineated by purposive-rational of irrational Traditional observational orientation. legitimacy understanding, tendsto be grounded in habituation whichis at themargins of meaningfulness at all. Charisma is irrational to the verydegreethataffectual commitment to a figure opposes the rational calculation of means. The thrust of Weber's of the subject sociology is to dismiss the adequacyof the understandings andWeber's actors,for if theseweretruetheywouldbe theirown explanation commentarywould be redundant,and to put forward his concepts of traditional and charismatic legitimacy, which explain these lay underorientations: standingsas beingbasedin irrational
traditional behaviour. . . liesverycloseto theborderline of whatcanjustifiably Strictly be calledmeaningfully oriented action,andindeedis oftenon the otherside . . . Purely affectual behaviour of whatcan be considered also standson the borderline "meaningfully" oriented,and often it, too, goes over the line . . .[Value-rational action is from the affectualtype by its clearly self-consciousformulationof the distinguished

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ultimatevaluesgoverningthe action and the consistently plannedorientation. . . to those values.At the same time the two typeshave a commonelement,namelythat the of a resultanteriorto it, but in meaningof the action does not lie in the achievement action carryingout the specifictype of action for its own sake . . . Value-rational rationalaction. From the relationsto instrumentally may . . . have variousdifferent is alwaysirrational.67 latterpointof view,however, value-rationality

This is by no meansvalue-free.Its whole explanatory power rests on it not so. being is presentin the butan evaluation A quitedifferent nonetheless, evaluation, discussion of legal-rationaldomination,68which is based on purposiverational orientationsdefinedin terms of their parallelitywith (economic) formof rationality: calculationas the paradigmatic
results rational . . . whentheend,themeansandthesecondary Actionis instrumentally of consideration Thisinvolvesrational takeninto accountandweighed. areall rationally of theendto thesecondary meansto an end,of therelations thealternative consequences, of actionin of different of therelative andfinally possibleends.Determination importance withthis type.69 or traditional termsis thusincompatible eitheraffectual

The value position which Weber's treatmentof this legitimationsilently is that of the principalfatalisticelementsof his culturallocation. articulates legitimationsare acceptedas displayingthe rationalitythat Legal-rational its they claim. Legal-rationaldomination is explained by understanding claimsas true: legitimation
has alwaysbeen its The decisivereasonfor the advanceof bureaucratic organisation The fully developed over any other form of organisation. purelytechnicalsuperiority bureaucratic exactlyas does the machine compareswith otherorganisations apparatus of modesof production. withnon-mechanical Precision, knowledge speed,unambiguity, reductionof frictionand the files, continuity,discretion,unity, strict subordination, materialand personalcosts - these are raised to the optimumpoint in the strictly form.70 in its monocratic andespecially bureaucratic administration,

of legitimation set of observational Whathappensin Weber's understandings claims should now be clear to anyone familiar with his writings. They a set of evaluationswhichaccordwith the projectthat dominated articulate his laterwork- theuniversal Theymakeup, in fact, historyof rationalisation. and charismatic of traditional Orders of that the two halves71 project. which turn on beliefs from domination draw their validity legitimation whichcannotsustain(economic)rationality: orientations
the whichtendsto restrict It is not only the financial regimes policyof most patrimonial developmentof rational economic activity, but above all the characterof their areableto develop . . . Thisis not, however,trueof the typeof the typesof capitalism profit-makingenterprisewith heavy investmentsin fixed capital and a rational organisationof free labour which is orientatedto the market purchasesof private in to allsortsof irrationalities is altogether too sensitive Thistypeof capitalism consumers. of law [and]taxation,for these upsetthe basis of calculability. . . the administration Pure charismais specificallyforeign to economicconsiderations. . . It is not that of propertyor even of acquisition. . . The charismaalwaysdemandsa renunciation heroicwarriorand his followersseek booty; the electiveruleror the charismatic party meansof power.Whatis despised,so long as the genuinely the material leaderrequires
administrative practices . . . under the dominance of a patrimonial regime . . . certain

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charismatic type is adheredto, is traditionalor rationaleverydayeconomising. . . Fromthe point of view of rationaleconomicactivity,charismatic want satisfaction is a typical anti-economicforce. It repudiatesany sort of economic involvementin the everyday routine world. It can tolerate, with an attitude of complete emotional acts.72 indifference, only irregular, unsystematic acquisitive

By contrast, legal-rational domination turns on its complete - indeed utterly compelling for Weber - fitness for economic rationality:
ThePuritan wantedto workin a calling; we areforcedto do so. For whenasceticism was carried out of monastic cellsintoeveryday it life,andbeganto dominate worldly morality did its partin building the tremendous cosmosof the modern economicorder.Thisorder is now bound to the technicaland economicconditionsof machineproduction which today determinethe lives of all who are born into this mechanism,not only those concerned witheconomicacquisition, withirresistible force.Perhaps it willcontinueto do so untilthe lastton of fossilised coal is burnt.In Baxter's viewthecareforexternal goods shouldonlylie on the shoulders of the "saintlikea lightcloak,whichcan be thrownaside at any moment". Butfatedecreed thatthecloakshouldbecomean ironcage.73

In sum, the treatment of traditional and charismatic legitimations produces evaluations of them which grounds his account of why economic rationality could not develop outside of the modern west;74 the treatment of legalrational domination shows why it could develop there, and serves as the basis of his discussion of how it did so.75 Let me be clear. I do not object to the presence of the theme of rationalism in Weber's understanding of lay beliefs in legitimacy. I think this presence is indeed the basis of what is the really valuable empirical content of his work, though not a content with which I am by any means in complete agreement. What I do object to is the way that presence is generated, for his commitment to value-freedom compels him to deny the distance he takes from actors' beliefs. By this denial both practical and empirical strength are lost. If actors' beliefs are shown by social explanation to contain mistakes, then these must be criticised by any social science striving for adequacy to its subject matter. Some evaluation will inevitably enter into any account of those beliefs; either ideologically in the form of an obscured evaluation or potentially openly. These beliefs are capable of being reflexively examined by those who profess them, and the relation of social scientific and lay discourses may strive towards attaining an overt dialogue of potentially emancipatory, demystifying critique. In Weber, critique is lost as dialogue is suppressed. The valuefreedom of observational understanding will allow of no overt consideration of this relationship, and Weber effectively has no alternative but to accept or reject in an immediate fashion the various beliefs he discusses. His valuefreedom is a defaulting of the potential for critique, not thereby to become value-free as this potential cannot be completely suppressed, but to have positions dictated ideologically. The products of this dictation for the empirical content of Weber's sociology are a set of mistakes about the character of legitimations based both on irrational and rational orientations. Leaving aside the detailed criticisms which may be made of Weber's accounts of the economic ethics of the world 221

religions,76 despite his clear intention to be empirically adequate, valuefreedom limits Weber's understanding of the real characters of the beliefs he discusses as the dialogical issues bound up in this are suppressed. Weber continually diminishes the contextual material rationality of traditional orientations by assessing these against a conception of rationality as such identified with capitalist economic rationality.77 The most important error he makes is a consistent though confused78 overestimation of the necessity of legal-rational domination for material productivity,79 and thus of that domination's inevitability.80Given in this form, this is surely more an eloquent reproduction of a central contemporary ideology rather than a real empiricial analysis of the beliefs discussed. This is not to dismiss the substance of Weber's studies. My argument has in large part turned on locating his sociology within the very development of technical-rationality with which his work is concerned. Therefore I may agree, for example, that from Weber's treatment of legal-rational domination there may be recovered one of the most important contributions to the analysis of bureaucracies. Such work of substantive renewal has not been my aim in this paper.81 Rather, in my critique of value-freedom, I have tried to describe the epistemological limitation which this sets upon his substantive sociology. Denying through value-freedom the possibility of explicit evaluation of its adequacy to its subject matter, Weber's sociology falls beneath the level of selfconsciousness, and is in fact largely given as an unconsidered acceptance of themes drawn from its cultural location. In the ambience of helpless resignation with which he has done much to surround technical-rationality, Weber has produced a definitive articulation of that rationality's ideological dominance. But, starting with the fatalistic conclusions it shields from scrutiny, Weber's value-free sociology could do no more. That it is not of relevance to practical emancipation is clear. It is vital to recognise that it could not be emancipatory because it is not science.

NOTES AND REFERENCES

See J. Habermas, Legitimation Crisis (1976), pp. 97-8. M. Weber, Economy and Society (1978) (hereafter ES), pp. 941-55, 31-8, 212-301. Id., p. 31. In quoting from Weber, I have occasionally amended the translations. Id. On the distinction between these see id., p. 33, n. 20. Based on T. Parsons, The Structureof Social Action (1968), pp. 658-9, this is Parsons' note to Weber, The Theory of Social and Economic Organisation (1947) (hereafter TSEO), p. 126, n. 51 which Roth and Wittich reproduce. Id., p. 36. Id., p. 33.
Id., p. 214.

2 3

4
5

6 7 8

Id., p. 33.

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10

Id., pp. 32-3, 325-33. As Webertells us, id., pp. 4, 32, he herereiterates partof a polemic againstStammler's philosophyof law, whichhe considersgreatlyconfusedin largepart andthe dogmatictreatments betweenthe empirical becauseit failsto strictlydistinguish of
law, made in a 1907 review of the latter's Wirtschaftund Recht nacht der Materialistischen Weber, Critique of Stammler (1977) (hereafter CS). Geschichtsauffung: ES, p. 251. Id.,pp. 941-8, 212-5. Id., p. 213. See G. Mosca, The Ruling Class (1939). ES, p. 213.

1 12
13 14

15 16
17 18

in Max Weber, ed. J.E.T.Eldridge) Weber,"Socialism", pp. 199-212.(1971;

ES, p. 582. Id., p. 14.

'9

in Weber, in thisrespect remarks Onthedifficulties of translating Weber seethetranslators' FromMax Weber FMW),pp. vi-vii;and the editors'commentin ES, pp. (1948)(hereafter
cvii-cviii. Id., pp. 242, 1112. Id., p. 953.

20
21 22

To pursuefurther of Webersee Habermas, the followingcriticisms Crisis,op. Legitimation Problemsin the Modern State", in Comcit., pp. 95-117; Habermas,"Legitimation
municationand the Evolution of Society (1979), pp. 199-200; H. F. Pitkin, Wittgensteinand Justice (1972), pp. 260-6; W. G. Runciman, Social Science and Political Theory(1969), pp. 56-63; L. Strauss, Natural Right and History (1953), pp. 49-64; and E. Voegelin, The New Science of Politics (1952), pp. 13-26.

23 24

notesto TSEO,pp. 131,n. 59, 152,n. 83. See Parsons' See Roth'snote to ES, p. 53, n. 31, in whichBendixand Shilsand Rheinstein arecited as for the use of"domination". authority
See R. Bendix, Max Weber(1960), p. 481, n. 13. See W. J. Mommsen,The Age of Bureaucracy (1974), p. 72, n. 1, who cites Aron and

25 26

27
28 29 30 31 32

Runciman as authority for the use of "domination".

ES, p. 34. Id., p. 54. Id., p. 34. Id., p. 54.

33

34

SeeJ. H. Westergaard and H. Resler,Class in a Capitalist Society (1976),pp. 144-7. SeeP. M. Blau,"Critical Remarks on Weber's in Max Weber (1970; Theoryof Authority", ed. D. Wrong),p. 156;and pp. 54-8 of Wrong's introduction to thiscollection. See Bendix,op. cit., p. 418, n. 13.Thisis Bendix's of his use of "domination". explanation See Parsons,'Max Weber'(1960) 25 AmericanSociologicalReview752. Parsonshere defends"authority" in a reviewof Bendix.For the background of Weber's interpretation treatment of legitimacy that supportsthis translation see Parsons,TheStructure of Social
Action, op. cit., pp. 658-72. ES,p.4. Id., p. 8. Id., pp. 8-9. Weber, Roscher and Knies (1975), pp. 129-86.

35
36

37
38

39
40

Id., p. 169;and ES, p. 5. Weber, "The Meaning of 'Ethical Neutrality'in Sociology and Economics",in The
Methodology of the Social Sciences (1949), pp. 1-47.

41

42
43 44

ES, pp. 4-7.

Id., pp. 7-8, 12-3, 17. Id., pp. 13, 15, 19.
CS, p. 109.

45
46

ES,p. 954.
Id., pp. 1006-7, my emphasis.

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4
48

49
50 51 52 53
54

55 56

57
58
59 60

61 62 63

64 65
66

67

68
69 70 71

Id., p. 215. Id., p. 25. Id., p.215. H. L. A. Hart, The Concept of Law (1972), p. v. D. Black, "The Boundaries of Legal Sociology" (1972) 81 Yale Law Journal 1091. J. H. Austin, The Province of JurisprudenceDetermined(1954), lecture 1. Hart, op. cit., p. 19. Black, op. cit., p. 1096. Hart, op. cit., passim, n.b. chap. 2. See A. Schutz, The Phenomenologyof the Social World(1976), pp. 3-44; and P. Winch, The Idea of A Social Science (1963), pp. 111-20. ES,p. 5. Id., p. II1. See H. G. Gadamer, Truthand Method(1975), p. 461. ES, pp. 5-7. Id., pp. 24-5. Id., p. 5. See the conclusions and the approach of D. Beetham, Max Weberand the Theoryof Modern Politics (1974), n.b. pp. 261-76. See V. Pareto, The Mind and Society (1935), Vol. 1. See G. Therborn, Science, Class and Society (1980), pp. 270-315. See Habermas, The Theoryof CommunicativeAction (1984), Vol. 1, chap. 2. ES, pp. 26-7.
Id., pp. 954-1005.

Id., p. 26.
Id., pp. 973-4.

72 73
74

75

76

77

78

79

80

81

Weber, "Author's Introduction" (hereafter Al), in The Protestant Ethic and the Spirit of Capitalism(1976) (hereafter PESC), pp. 27-8; Weber, "The Social Psychology of the World Religions" (hereafter SPWR), in FMW, pp. 292-301; and ES, pp. 576-90. ES, pp. 239-40, 244-5. PESC, p. 181. ES, pp. 611-40; SPWR, Weber, The Religion of China,(1951); Weber, "Religious Rejections of the World and Their Directions", in FMW, pp. 323-59; Weber, The Religion of India (1958); Weber, Ancient Judaism (1952). AI; PESC; Weber, "The Protestant Sects and the Spirit of Capitalism", in FMW, pp. 30222; and Weber; General Economic History (1961) (hereafter GEH), pp. 352-69. See, on Buddhism and Hinduism, G. R. Madan, Western Sociologists on Indian Society (1979), pp. 64-251; on Islam, B. S. Turner, Weberand Islam (1974); on Confuscianism and Taoism, O. B. van der Sprenkel "Max Weber on China" (1964) 3 History and Theory 34870; and on Judaism, I. Schiper, "Max Weber on the Sociological Basis of the Jewish Religion" (1959) 1 Jewish Journal of Sociology 183-95. See G. A. Cohen, Karl Marx's Theory of History (1979), pp. 320-1, n.b. the instructive comparison he draws between GEH, pp. 260-1 and K. Marx, Grundrisse(1973), pp. 325-6. See A. Eisen, "The Meanings and Confusions of Weberian 'Rationality' ", (1978) 29 British Journal of Sociology 57-70. See P. Q. Hirst, Social Evolutionand Sociological Categories (1976), chaps. 3-7. See A. W. Gouldner, "Metaphysical Pathos and the Theory of Bureaucracy", (1955) 49 American Political Science Review 496-507. See Habermas, The Theoryof CommunicativeAction, Vol. 1, op. cit., chap. 3.

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