Albrow - Legal Positivism and Bourgeois Materialism Max Weber's View of The Sociology

Cardiff University
Legal Positivism and Bourgeois Materialism: Max Weber's View of the Sociology of Law
Author(s): Martin Albrow
Source: British Journal of Law and Society, Vol. 2, No. 1 (Summer, 1975), pp. 14-31
Published by: Wiley on behalf of Cardiff University
Stable URL: http://www.jstor.org/stable/1409782 .
Accessed: 12/05/2014 12:10
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp
.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact support@jstor.org.
.
Wiley and Cardiff University are collaborating with JSTOR to digitize, preserve and extend access to British
Journal of Law and Society.
http://www.jstor.org
This content downloaded from 128.226.37.5 on Mon, 12 May 2014 12:11:02 PM
All use subject to JSTOR Terms and Conditions
LEGAL POSITIVISM AND BOURGEOIS MATERIALISM:
MAX
WEBER'S
VIEW OF THE SOCIOLOGY OF LAW
My
intention is to
give
an account of Max Weber's
sociology
of law but with
special
reference to
problems
of basic
method.1
Much of Max Weber's contribution to
sociology
has been
methodological
in nature and what he has written on law is no
exception
to this.
Underlying
his account of the
development
of modern law with its
lengthy
excursions into
the
history
of
legal thought
and its
many analyses
of the
interplay
of economic and social
factors with the
professional
interests and outlook of
lawyers,
an account of both
dazzling
erudition and
impenetrable style,
there is a
general theory
of the nature and
development
of law. This
theory
stems from Weber's basic
assumptions
about the methods of social
science
generally.
In
particular
Weber's account of the relations between law and
sociology
and his
analysis
of the
development
of law are not
accidentally
linked. His assertions that the
legal
point
of view is directed to
determining
the
validity
of law while the
sociologist
is interested
in what
happens
when
people
act in
society
with law in
mind,
that these two
points
of view
are
quite
distinct with no
overlap,
and his belief that
legal thought
has its own
logic
which
has been
expressed
in the
general
historical trend to the
increasing
formal
rationality
of law
are
part
of a
single
view of the
world,
albeit a
complex
and
sophisticated
view 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
in his
sociology
of law I
hope
simultaneously
to indicate its
scope
and limitations for us in
any programme
for the
sociology
of law in
contemporary
conditions. For in
spite
of its
prodigious scholarship
Weber's
sociology
of law has commanded
relatively
little influence and this has more to do
with the
conceptual
framework and intellectual outlook which are timebound than with the
impenetrability
of the
style.
There is a
paradox
in this. Weber was trained and
practised
for a time as a
lawyer.
His
dissertation was on law in relation to mediaeval
trading companies.
His interest in and
respect
for the law were sustained
throughout
his life. He was a
frequent
and successful
litigant.
It was
perhaps
the sector of social life he knew best.
Why
should it be that his work
on law has had so much less influence on
subsequent generations
than his work on
politics,
religion, sociological theory
and the
philosophy
of social science?
Perhaps equally neglected
have been his ideas in
economics,
in which
subject
he held his chair!
The
quick
answer is that it was
precisely
in those areas that he was most a
prisoner
of
the dominant theories of his time.
They provide
the
uncritically
held
assumptions
of this
most critical of theorists. He
accepts
the
paradigms
of the
legal
and economic science of his
time and his
originality
in the other
spheres
stems
very
much from the
application
of a
special amalgam
of these two 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
is based on a talk
given
to the Seminar on the
Sociology
of Law at the Centre for
Socio-Legal
Studies, Oxford,
on the 31
January
1975.
I
am
grateful
to the
participants
for the
points
raised in
discussion.
14
are the natural instruments of the
bourgeoisie.
For him
they
are constructed out of a
pure
and timeless
rationality.
But it is
precisely
in eras of
rapid
social and technical
change
that
they
have to be
continually
refashioned.
Today
we
rightly
have little trust in what
appeared
to be timeless
principles
at the
beginning
of the twentieth
century.
Allusion to Weber's own
image
of himself
brings
out a contextual
point
which is vital to
the
understanding
of his
sociological analysis
of law. A
major target
for Weber
throughout
his life was the historical materialism of Karl Marx. Just as in his account of the rise of
capitalism
he attributed to the
religious
ideas of Protestantism an
important
and
independent
causal
position,
so he refuses to see law as
any
mere reflection of the material interests of
the
capitalist
class. Indeed his
writing
on the
sociology
of law is in the context of a much
broader and more ambitious account of the
general
relations of the
economy
to other
spheres
of social life which sees the
growth
of
capitalism
as one
special
facet of the rationaliza-
tion of modern
society
in all
respects.
In this
general process religion, law, economics,
science, politics
all have both
independent
and
dependent positions
in relation to each other
and none has
priority.
It is a multi-factor
approach
to societal
analysis
where
sociology
emerges very
much as the
discipline
which traces the bonds between these institutional
areas. Weberian
sociology
is therefore
very
much the
response
to and
bourgeois equivalent
of Marxism in both
scope
and
generality.
If Marx is the
major
antecedent of Weber's interest in the
sociology
of
law,
it is in a
very general
and
unspecified
form. Weber was not interested in Marx's work in
any very
scholarly way
and to some extent his attack was on
vulgar
Marxism in the broadest sense.
In the
scholarly
context there is a minor antecedent which deserves mention. In 1894 Rudolf
Stammler had
published Wirtschaft
und Recht nach der
materialistischen Geschichtsauffassung
(Economy
and Law
according
to the Materialist
Conception
of
History).
He
attempted
to
show on the basis of
epistemological
considerations that it was
impossible
to view the
economy
as
fundamental
to
society. Through analysing
the idea of social life he came to the
conclusion that its essence was in
activity
in accordance with common rules. These rules
he
identified as law and he saw law as both constitutive of and
determining
social life.
In 1907 Weber wrote a substantial refutation of Stammler in a review of the second
edition of his book.2 This contains an
analysis
of what is involved in
studying
rules of
any
kind and in
particular
makes distinctions between the evaluation, interpretation
and
empirical study
of the effects of rules. He uses the
example
of a
game
of cards to illustrate
his
argument
and
proceeds
to the
point that, complex though
the
analysis
of a
game
of cards
is,
the case of law is much more
complicated
because,
unlike a
game
of cards, the
reality
for
which law is relevant is not
totally
defined
by
law. As he said when
studying
the
place
of
Protestantism in the rise of
capitalism
he was intent not to
replace
a one-sided version
of
history
with one that was
equally
one-sided. In
avoiding
Marx's economic determinism
he
wished also to avoid Stammler's
legal
idealism.
I mention this still untranslated
paper
of Weber's because it
provides
the methodo-
logical
foundations for his
sociology
of law and because it is
neglected by
Max Rheinstein
2
"R.
Stammler's Ueberwindung
der materialistischen Geschichts
auffassung",
in Max
Weber, Gesammelte
Aufsdtze
zur
Wissenschaftslehre (1968
J. C. B. Mohr
(Paul Siebeck), Tubingen)
291-359.
15
in his otherwise
outstanding
introduction to his edition of Weber's
writing
on law.3 A rare
occasion on which Weber's
paper
has received the attention which is its due has been in
Peter Winch's The Idea
of
a Social
Science, only
to receive treatment which
puts
us almost
back to
Stammler's
position.4
In all other
respects
Rheinstein's introduction is of the
greatest
value to the
understanding
of Weber's
sociology,
his
sociology
of law and the
general problems
of the relations of law and
sociology.
It makes more than this short
preamble unnecessary
before
turning
to the structure of Weber's
argument.
Weber's View
of
the Relations
of
Law and
Sociology
For Weber it is axiomatic that the
legal
and
sociological approaches
to the
study
of law
are different. The
legal
scholar or
jurist
is concerned to examine the
way
in which the actual
behaviour of
judges, advocates,
criminals or citizens measures
up
to the ideal norms of the
legal system.
The
jurist
is therefore
using
the law as his standard of value
against
which to
measure the behaviour of men in the world. The
sociologist
however
simply regards
the
legal
rule as a
component
of an
empirical reality
and concerns himself with
establishing
the
extent to which it
operates
as a motive for those who enforce
it,
as a factor for those who
obey it,
or as an obstacle for those who
infringe
it.
That is the
early
version of his account of the relation between what he called the
"dog-
matic" or
juristic interpretation
of the law and the
empirical
or
sociological
and is to be
found in his
essay
on Stammler. The later version which is found in Rheinstein is somewhat
different.
In Law in
Economy
and
Society
Weber
still
holds
firmly
to a
profound
difference
between the
juristic
and
sociological
views of law but in this case the
juristic viewpoint
consists far more in
finding
the ideal
meaning
of the
legal
norm, defining
the facts to which
it
might apply
and
fitting
it into a
general system
of
legal propositions.
One
might say
that
the later account has become a more academic version of the difference between the two
standpoints.
Whereas in the
early
version the academic
lawyer
seems
essentially
to be
scrutinizing
and to an extent
replicating
the
judicial process,
in the latter he is concerned
more with correct
logic
and the elaboration of the
meaning
of
legal
rules.
I find this
difference
of
emphasis
to be of considerable
importance
and will return to
it,
but for the moment the
important thing
to note is that however it is conceived Weber holds
there must be a
difference
between a
juristic,
evaluative,
or as he called it
"dogmatic
scientific"
standpoint
and an
empirical
or
sociological position.
That basic conviction is
simply
another facet of the article of faith which sustained him and remained constant
throughout
his life that there could be no
amalgamation
of value and fact in social
research;
empirical
science must remain value-free. Weber's work contains all kinds of different
accounts of the
relationship
of fact and value but that basic conviction never wavers. It is
the
pivot
on which his
conception
of
sociology
turns and the
point
to which
any re-appraisal
of his idea of the relations of
sociology
and law must return.
3
Max
Rheinstein, (ed.)
Max Weber on Law in
Economy
and
Society (1954
Harvard
U.P., Cambridge,
Mass.).
4
P.
Winch,
The Idea
of
a Social Since and its Relation to
Philosophy (1958 Routledge, London)
49-51.
16
The
distinction between the two
approaches
to law leads Weber into a consideration
of the
concept
of law. It is
already
clear in his
essay
on
Stammler
that Weber
regards
the
methodological problems
of the
study
of law as
being
in
principle
no different from those
in the
study
of
any
set of
rules,
be
they
conventions or
merely
the rules of a
game
of cards.
Law in this
respect
has no
special dignity.
This
position
is elaborated in Law in
Economy
and
Society.
In all determinate social
groups
there are rules. Sometimes these amount to
mere
custom,
where
nobody really
thinks what he is
doing
has
any
real
importance
and
there is no sense of
obligation
involved in
following
the rule. But more
important
is the
fact that in social
groups
the actors
regularly
have the idea of a
legitimate order,
or set of
rules which involves a
degree
of
obligation. Though
this set of rules
may
not be
respected
by everyone
and indeed some
may
flout it or use it in a
cynical way,
nonetheless it is the
fact that to a substantial number it has a
binding
force which
gives
it an
importance
in both
social life and
sociological analysis.
Such a social order can be called
convention, says
Weber,
if it is sustained
merely by approval
or
disapproval.
It "will be called law if it is
externally guaranteed by
the
probability
that coercion
(physical
or
psychological),
to
bring
about
conformity
or
avenge violation,
will be
applied by
a
staff
of
people holding
them-
selves
specially ready
for the
purpose."s
We
may
ask: "Is this Weber the
lawyer's concept
of
law,
or Weber the
sociologist's?"
This is not
easy
to answer. Rheinstein
points
out the
similarity
between Weber's idea of law
and that of Austin's definition of law as the command
of the
sovereign.
He also notes the
connection between Weber's views and those of Kelsen who
developed
a
pure theory
of
law,
devoid of
ethics,
a doctrine of
legal positivism.
In other words there is
nothing
in Weber's
formulation which
automatically
rules it out of consideration as a
concept
of law for
juris-
prudence.
Moreover it
might
seem to be
implied by
Weber's
emphasis
on the inherent
differences in the
sociologist's
and
lawyer's points
of view that
they
would
necessarily
be
points
of view on the same
phenomenon.
After all are
they
not the same set of rules which
the academic
lawyer
tests for their coherence and the
sociologist
for their effects on the
real world?
But at other
points
it seems that Weber is
advocating
a
concept
of law which is
peculiar
to the
sociologist.
As he
says:
"In our context the
concept
of law will be defined as an order
which
depends
on an enforcement
staff.
In other connections different definitions
may well
be
appropriate."6
In other
words, you
choose
your concept according
to the intellectual
purpose you
have. Weber adds that the
legal terminology may
be
quite
different. Thus this
definition,
he
notes,
excludes international law as a form of law becuase it has no
supra-
national enforcement
agency.
Yet, again,
there is no reason
why
this
point may
not be
made
by
an academic
lawyer
and Weber
agrees
that it has been time and again. The section
which Rheinstein heads with "The
Sociological Concept
of Law" overstates Weber's
commitment to the notion of a
sociological concept,
for the German edition entitles this
section: "The
juristic
and
sociological concept
and
meaning
of the
legal
order" and the
discussion which follows is
largely
about the
respective points
of view.7
5
Rheinstein, op. 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
Whatever the balance it is
apparent
that the two
issues,
the
disciplinary viewpoint upon
the
subject
matter and the constitution of that
subject
matter,
are
closely
intertwined for
Weber so that at one
point
at least
they
seem to
merge.
In his
essay
on
Stammler
he
distinguished
between the ideal and
empirical validity
of a
legal proposition.
The ideal
validity
of a
legal proposition
meant that the
jurist
who
sought "juristic
truth" would find
a
binding relationship
between certain
concepts
and he would be
obliged intellectually
to
posit
that such and such a rule should be
accepted.
But the
empirical validity
of a
legal
proposition simply
consisted in the chance that it had a demonstrable effect in the world.
In this sense
"Empirical validity
is
ultimately
as much a feature of
'juristic
error'
as
'juristic
truth'."8
Weber alludes to this notion of
empirical validity
in another definition he offers:
"'Law',
as understood
by us, is
simply
an
'order system'
endowed with certain
specific guarantees
of the
probability
of its
empirical validity".9
In this case we
clearly
have a definition which
is dominated
by
what Weber considers to be the
methodological
necessities of
empirical
science. But we are
thereby
left in considerable difficulties for it is clear that what the
sociologist
considers as law
may
turn out to be
quite
different from what the
jurist
does.
Can the
sociologist
consider as law a
system
of rules from which the
lawyer
would with-
hold the term? The
methodological
tenets of the
sociologist
now
appear
to determine what
can be called law. Under these circumstances what
happens
to the
point
of view of the actor
be he
lawyer, jurist, judge, legislator, litigant
or
simply
citizen? What
happens
to the famous
insistence on the
subjective meaning
of action which is so often associated with Max Weber
and which is
exemplified
in this self-same context
by
the view he takes of ethics?
Whether or not a normative idea 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' law or convention must be
decided
by
the
sociologist exclusively
in accordance with that notion of the 'ethical' which is
actually
held
by
the
people
in
question.10
If the
"people
in
question"
are the court of
appeal
in the case of
ethics, why
are
they
not in
the case of law? This is a
question
to which we shall have to return.
When Weber leaves the
topic
of law in
general
and
proceeds
to a discussion of the main
substantive fields of
law,
it is
apparent
that
sociological
views of law must have a more
intimate
conceptual relationship
with
legal
views than Weber's concern to establish
sociology
as an
empirical discipline might suggest.
The first
major
distinction he considers is that
between
public
and
private law,
of
great importance
in German
legal theory. Immediately
he
adopts
what he calls the
"sociological
test" and defines
public
law "as the total
body
of
those norms which
regulate
the activities of the state as such" and
private
law as "the
totality,
not of those norms which relate to the state as
such,
but of those norms
which,
while
issuing
from the
state, regulate
conduct other than state
activity."
He
goes
on: "This
kind of definition is rather
non-technical, and, therefore,
difficult to
apply.
But it seems
nevertheless to constitute the basis of almost all other
attempted
distinctions of the two
8
Max Weber, Wissenschaftslehre op. cit., p.
347.
9 Rheinstein, op. cit., p.
9.
to
Op. cit., p.
8.
18
great
branches of the law."11 Here then the
non-juristic concept
is not
simply
a
specialized
viewpoint
from
empirical science,
it
apparently expresses something lawyers attempt
to
conceptualize
but to which
they
can
only approximate. Legal
theories and
practices
then
appear
as a variable surface
expression
of
deeper categories
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
language.
In his
rejection
of the economic determinism of Marx and the
legal
idealism of
Stammler
Weber has come close to a
position
which one could call
sociological
determinism. The
content of
legal
theories is
relatively unimportant,
what matters is
political organization,
the real institutions of
political society.
These are the infra-structure. But in
emphasising
this social structural
basis,
Weber is
simultaneously providing
a
general
account of
legal
thinking.
If we recall the distinction he drew in the
essay
on
Stammler,
between the social
scientist's interest in law and the
jurist's,
a
key aspect
of it was the
emphasis
and commit-
ment
by
the
jurist
to norms of
pure rationality.
Just as the
sociologist
was interested
simply
in the fact that norms were or were not
observed,
so the
lawyer
was
simply
interested in the
technical correctness of
argument.
It is not therefore
surprising
that Weber moves
directly
from
considering
the
types
of
political
and social
arrangements underlying
the
specialized
fields of law to a consideration
of the formal structure and
techniques
of
legal thought.
I think Rheinstein is
right
to make
a
separate chapter
headed
"Categories
of
Legal Thought"
out of a section which in the
German edition runs
straight
on from the consideration of substantive fields of law.12 In the
brief
space
of four sides we
get
the central ideas
underlying
Weber's whole
approach
to law.
The various schools of
legal thought
can be seen as
having developed
and become
differentiated from each other
according
to the
type
of
political organization
and the
"internal structure of
legal thought".
Weber then addresses himself to the
problem
of
advancing
a set of
adequate categories
for the
analysis
of the structure of
legal thought.
Paradoxes are
already beginning
to
multiply.
What was to have been an
empirical
study
of law in the world
begins
to be an
analysis
of
legal
theories. Weber's concern to
advance a
sociological
view of law turns out to be an
attempt
to advance a
theory
of law
which
depends
on
identifying
the common elements in
any system
of
legal thought
and
showing
how
they
have
developed through
the
history
of
law,
and it is with this that the
rest of his
sociology
of law is
concerned,
with a wealth of historical illustration and con-
ceptual refinement,
but
clearly
directed to
confronting jurists'
theories of law. So it is that
Weber's
"empirical" study
of law
begins
to revolve around what he held to be the heart of
the
dogmatic jurist's
concern in
law,
the most ideal and least
empirical aspect
of all, the
nature of
legal rationality.
This is the central notion in the Weberian account of law in
economy
and
society,
as is the
concept
of
rationality
the central notion in the total
corpus
of Weber's work.
The idea of
rationality
can be
applied
to law in several
ways according
to Weber. As far
as a
body
of law as a whole is concerned it amounts
essentially
to
systemization, the con-
11
Ibid., p.
41.
12
Ibid., pp.
61-4.
19
struction of a
gapless system
of rules. In the actual
making
of law it involves a basic
distinction between formal and substantive
rationality.
Formal
rationality
can
simply
be a
matter of
attending
to certain
procedural formulae, symbolic acts, signature
and so
on,
but
more
importantly
in the modern world involves the formation of
legal concepts
of a
highly
abstract nature the
meaning
of which is
analysed
and made clear in
being applied
to
any
concrete set of facts. Substantive
rationality
on the other hand involves the decision of
legal
problems by
reference to ethical
imperatives,
norms of a utilitarian or
expediential
kind.
This form of
rationality
in law is
always
in tension with the formal kind of
rationality.
It is
this latter which is
peculiarly legal.
"The
peculiarly professional legalistic,
and abstract
approach
to the law in the modern sense is
possible only
in the measure that law is formal
in character." Thus
"dogmatic legal
science" becomes both the source of the
independence
of the
legal profession
and a measure of the
empirical development
of law:
Present-day legal science,
at least in those forms which have achieved the
highest
measure of
methodological and
logical rationality,
i.e. those which have been
produced through
the
legal
science
of the Pandectists' Civil
Law, proceeds
from the
following
five
postulates: viz. first,
that
every
concrete
legal
decision be the
'application'
of an abstract
legal proposition
to a concrete 'fact
situation';
second,
that it must be
possible
in
every
concrete case to derive the decision from abstract
legal
propositions by
means of
legal logic; third,
that the law must
actually
or
virtually
constitute a
'gapless' system
of
legal propositions,
or
must,
at
least,
be treated as if it were such a
gapless system;
fourth,
that whatever cannot be 'construed'
legally
in rational terms is also
legally irrelevant;
and
fifth,
that
every
social action of human
beings
must
always
be visualized as either an
'application'
or 'execution' of
legal propositions,
or as an
'infringement'
thereof.13
It is to the
development
of these formal
qualities
of law that Weber addresses himself in
the rest of his
sociology
of law.
Weber's Account
of
the
Development of
Modern Law
Weber's historical account of law consists of
relatively
few themes woven
together
to
give
a
very
rich texture. Bare
summary
can do scant
justice
to this richness but bare
summary
is
necessary
because too
easily
is the reader overwhelmed
by
the erudition and
repeated
flashes of
insight.
The themes include the
ways
in which new law is
generated,
the relation
between law and the
economy,
in
particular
the
way
law facilitates economic
development,
the
weight
of economic and
political
factors in
determining
the balance of formal and
substantive
rationality
in
law,
the intellectual outlook and interests of
lawyers
as a factor
in
legal development,
but above all the tension between formal and substantive
rationality
as an ever
present
element.
Right away
it must be said that there is
clearly
an intimate connection between Weber's
methodological
and definitional
approach
to law which we have
already
discussed and this
account of the tension between formal and substantive
rationality.
His
sociological posi-
tivism in
respect
of the
concept
of law excludes the
possibility
of
any
kind of consideration
of the values which
jurists normally
discuss. In
particular
it
resolutely
and
deliberately
avoids
any
discussion of
justice
or
any
consideration which
might distinguish
between
enforced codes of rules
according
to the values which
they express. (This
is the
counterpart
in another context of his determination to define the State in terms which exclude
any
13
Ibid., p.
64.
20
reference to its
ends).
Weber's formalism in his account of
legal thought
has the same effect.
The
lawyer
is
presented
as
being ultimately
interested in the
logical
coherence of a
system
of
propositions,
and not in the values which those
propositions might express.
The
lawyer
then
appears
as another kind of
scientist, dogmatic
it is
true,
but uncommitted to
anything
except
the
logic
of law.
Now Weber's
concept
of substantive
rationality
makes reference to all those
aspects
which are excluded
by
his
legal positivism.
With law defined in the
way
Weber does and
with the
lawyer presented
as he
is,
it is no wonder that substantive
rationality, namely,
all
those considerations of
public good, welfare,
economic
advantage, justice
and
morality
about which the
legal profession
has views as
much,
if not more
than, any
other
group,
and
which are
incorporated
into
any legal
code
appear
as in
permanent
tension with the formal
rationality
of law.
This can be illustrated from Weber's consideration of the factors involved in the
creation of new rules of law.
They arise,
he
says,
out of new forms of
conduct,
which either
change
the
meaning
of
existing
rules,
or else result in the creation of new rules. In this
creative
process
new
agreements
can result in new
rules,
or these rules can be
imposed
from
above. In both these
processes
the
participation
of
specialized
and trained
legal personnel
is often decisive in
determining
the character of the law that is created. In his
lengthy
discussion of the
organization
of
legal
innovation there is
only
a short reference to what he
calls
"purely
'emotional'
factors,
such as the so-called sense of
justice".
He
goes
on:
"Experience
shows
however,
that the 'sense of
justice'
is
very
unstable unless it is
firmly
guided by
the
'pragma'
of
objective
or
subjective
interests. It
is,
as one can still
easily
see
today, capable
of sudden fluctuations and it cannot be
expressed except
in a few
very
general
and
purely
formal maxims."14 In fact Weber sees this
"sense", being emotional,
as
a source of irrational
adjudication,
a
"popular conception"
as
against
the
"lawyer's
law"
of the
professionals.
This is
interesting
because it is one of the few occasions Weber refers
to
popular conceptions
of law and
secondly
because of the dismissive
way
he
speaks
of
what is the substance behind formal maxims. The fact that the sense of
justice
has to be
expressed
in formal maxims
apparently
makes it
unimportant.
The
formality
of the maxims
is what matters.
The
dichotomy
of form and substance has an
equally important part
to
play
in Weber's
account of the relations of the
economy
to law.
Questions
of economic
advantage, welfare,
profitability
and so on are for him
intrinsically
heteronomous, non-legal
or substantive.
By
emphasizing
the formal nature of law Weber has in fact
begun
his
analysis
in such a
way
that he can stress the
independence
of the two
spheres.
He can then treat law and
economy
as distinct variables and examine their
reciprocal
interaction.
In his examination of the influence of the
economy
on law Weber concludes that in
general
economic interests do not determine the direction of
legal
rationalization. The
invention of the
appropriate legal techniques
for modem economic life, e.g. agency,
negotiable
instrument,
or
assignment depends
on the intellectual training
and body of legal
14
Ibid., p.
75.
21
ideas available to the
legal experts
of the time.15 While
bourgeois groups
demand a
calculable law and thus are decisive for a
general
trend to formal
law, they
have no influence
on the
development
of the most
highly
rationalized forms. "This
logical systematization
of
the law has been the
consequence
of the intrinsic intellectual needs of the
legal
theorists
and their
disciples,
the
doctors,
i.e. of a
typical aristocracy
of
legal literati."16
For Weber
the test case for the
independence
of
legal
structure from economic interests is
very
much
England.
The
history
of the
development
of the
legal
structure of
organizations
is
very
different in
England
from that on the continent and
yet capitalist development
took
place
in both.17
Actually
Weber's treatment of the
English
situation reveals difficulties in his entire
discussion of the relations of law and the
economy.
In
any
case for him
English
law was
inferior to the continental in its lower
degree
of rationalization. He sees it as
empirical,
complicated
and
expensive
and "it
may
indeed be said that
England
achieved
capitalistic
supremacy among
the nations not because
of,
but rather in
spite of,
its
judicial system."18
But at the same time Weber cannot avoid
commenting
on the class basis of British law.
He sees it as a blatant case of one law for the rich and one for the
poor. Only
the rich can
afford
litigation
and the
poor put up
with the
"Khadi-justice"
of the
justices
of the
peace.
This denial of
justice
was in close
conformity
with the interests of the
propertied, especially
the
capitalistic,
classes. But such a dual
judicial policy
of formal
adjudication
of
disputes
within the
upper class,
combined with arbitrariness or de
facto denegation
of
justice
for the
economically
weak
is not
always possible.19
Weber's attitude to
England
is worth a
paper
in
itself,
but what must interest us here
is that Weber's own
judgment
on what benefits or does not benefit which class
appears
indeterminate and uncertain. It is difficult to avoid the conclusion
that,
even on his
account,
the structure of
legal thought
is
very epiphenomenal.
Economic
development
takes
place
regardless.
The
bourgeoisie always gets
the law to suit it.
By concentrating
on law as
technique
he makes it
appear important
for the
independence
and
prosperity
of those who
live from the law and
nothing
more.
Nothing
could be more indicative of the
profound
antinomies and
paradoxes
of his
view of the relation of formal and substantive considerations in law than his discussion of
contract. For Weber
legal rights
are the "reflex" of
legal regulation
and
rights
are a source
of
power.
In so far as law creates
rights,
it
gives power
to
particular
individuals which
they
can then
exploit.
Certain structures of
rights
can therefore favour the
emergence
of certain
kinds of economic relation. In the modem world the extent of contractual freedom is so
great
that one can
designate
modern
society
as of the contractual
type.
Whatever the
individual
(or corporate group)
sees as in his
interests,
economic or
otherwise,
he can
organize
on the basis of a contractual
relationship
with others which the 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
and enforce if need be. The result is that market forces of the
economy
have a
scope
for
development beyond anything experienced
before. This
legal
"freedom" becomes the basis
of economic servitude for wide strata of
society.
On such themes Weber's realism amounts to a
critique
of
contemporary society owing
much to and
quite
as trenchant as Marx's. It would be
quite wrong
to
imagine
that because
Weber
accepts
the
bourgeois legal
and economic science of his time that this translates
itself into a
complacent acceptance
of the status
quo.
On the
contrary,
his whole
analysis
of rationalization is a
despairing
indictment of the fate of both
bourgeoisie
and
proletariat.
Now this
might appear
to be a decisive
argument
in favour of
seeing
the
development
of
legal technique
as a
major
factor in economic
development,
and indeed this
appears to
be
why
Weber introduces this theme. But towards the end of Law in
Economy
and
Society
it
appears
that the
development
of modern commercial law in
particular
has
quite
another
significance,
for it
gives very
full
scope
to industrial and commercial
pressure groups
to
have transactions defined as commercial even when
they
are not conducted
by
merchants,
so that out of economic
expediency
a commercial
meaning may
be
imposed
on what was
not intended as such.20
Alternatively,
the real intentions of the
parties
to a contract
may
be
taken into account
-
and this in Weber's view is
equally
destructive of the formal character
of law. Thus:
In the
sphere
of
private
law the concern for a
party's
mental attitude has
quite generally
entailed
evaluation
by
the
judge.
'Good faith and fair
dealing'
or the
'good' usage
of trade
or,
in other
words,
ethical
categories
have become the test of what the
parties
are entitled to mean
by
their
'intention'.
Yet,
the reference to the
'good' usage
of trade
implies
in substance the
recognition
of
such attitudes which are held
by
the
average party
concerned with the
case, i.e.,
a
general
and
purely
business criterion of an
essentially
factual
nature,
such as the
average expectation
of the
parties
in a
given
transaction. It is this standard which the law has
consequently
to
accept.21
So it
appears
that much of the
development
of
modern
law in relation to economic
affairs can
only derogate
from the
formality
of law and the
independence
of
judicial
decision.
"Logically
consistent formal
legal thinking"
is
incompatible
with the "fact that
the
legally
relevant
agreements
and activities of
private parties
are aimed at economic
results and orientated towards
economically
determined
expectations
...
Lawyers'
law has
never been and never will be
brought
into
conformity
with
lay expectation
unless it
totally
renounces that formal character which is immanent in it."22
As with his discussion of the relation of the
economy
and law so Weber's
analysis
of
the relations of law and
politics
is focussed on the tension of formal and substantive
rationality.
But here Weber sees a more direct influence of
political
factors on the
law,
which
is
hardly surprising
since his definition of law contains that element of realism which
emphasizes coercion,
enforcement
agencies
and hence
political power.
In this sense the
relations of law and
politics
are much more
conceptual
than
empirical
and this means that
the
attempt
to
analyse
their relations as two
separate
variables, contingently related,
as
20
Ibid., pp.
302-3.
21
Ibid., p.
307.
22
Ibid., p.
308.
23
Weber does with law and the
economy
is less
possible.
Thus Weber shows how the
develop-
ment of much modem law involved the
incorporation
of
separate legal
codes into a
single
jurisdiction through
the creation of
special rights
and that the centralization of the State
involves such an extension of
legal concepts.
But here too
formally
rational law finds its
independence
and clashes with both
political expedience
and the
attempt
to
regulate
State affairs
according
to moral or economic
principles.
Indeed Weber
develops
a
theory
which sees the
lawyers acquiring
an
independent
power position by
their
ability
to become detached from the
competing
interests in a
plural
society.
The
patriarchal
monarch would find that in
using juristic experts
he would have
handed over his
capacity
to
organize
his affairs
autonomously.
Formal
justice
reduces
arbitrariness and favours those with economic
power
at the
expense
of those with
political
power.
The
enlightened despots
of the
eighteenth century
in
particular sought
to avoid
juristic hair-splitting
and to avoid the elaboration of law
by professional jurists.
The
Prussian General Code of 1794 was an
attempt
at
systematic
rationalism of a
substantively
rational kind. But for Weber this
code,
which indeed survived
only
until
1896,
was a failure.
Its
clarity
was obscured
by taking
"as its
point
of
departure
not formal
legal concepts
but
the
practical
relations of life."23
This discussion of the Prussian Code leads Weber into an account of the French Civil
Code and a
concluding general
discussion of the
conflicts
between formal and substantive
rationality
in
modern legal 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 to
juristic
debate as to a
sociology
of law and it becomes
quite
obvious that Weber is in fact
espousing
a
particular
juristic
doctrine. The French Code
attempts
to base its laws on a normative standard of
natural law. The sources of natural law doctrine are
various, stemming
from Stoicism and
Christianity,
mediaeval
English
ideas of individual
rights,
and the
eighteenth century
enlightenment.
In Weber's definition "Natural law is the sum total of all those norms
which are valid
independently of,
and
superior to, any positive
law and which owe their
dignity
not to
arbitrary
enactment
but,
on the
contrary, provide
the
very legitimation
for
the
binding
force of
positive
law."24
Natural law was often
expressed
in
very
formal axioms but in
practice, argues Weber,
and indeed
necessarily,
natural law ideas involve
bringing
into the discussion of law
problems
of
practicality
and usefulness. It involves the
English concept
of reasonableness rather than
rationality
of
logic
of the Roman Law. Such
notions,
notes
Weber, play
a vital
part
in all
socialist movements. But nonetheless he considers these
metajuristic justifications
of law to
be
everywhere
on the retreat. Intellectual
scepticism
and the relativization of morals has
led to
seeing
such
metaphysical
claims as the mere
expression
of
compromises
between
conflicting groups.
So
legal positivism
has advanced
irresistibly
and the
legal profession
becomes a conservative force
simply
concerned to
preserve
the law of the moment from
either
proletarian
demands for social
justice
or
patriarchal
welfare-statism. In this con-
servatism the command
by
the
legal profession
of the technical
expertise
of formal
legal
23
Ibid., pp.
280-1.
24
Ibid., p.
288.
24
rationality
is its
great power
asset and also its intellectual
delight.
The formal
expertise
of
the
lawyer
and the
conception
of law as a
gapless complex
of
norms,
factors which
originally
facilitated the
reception
of Roman Civil
law,
had
given
to the
legal profession
that
power
resource which transcended and indeed made irrelevant the substance of Roman law.
All kinds of
countervailing
tendencies to the advance of formalistic
legal
rationalism
might
exist in the modern world. Weber
gives
a resum6 of them. We have
already
mentioned
his view of commercial law.
Anglo-American
ideas with their low level of
rationalism,
crude
empiricism
and relative
accessibility
to the
layman represent
an
exception.
The
jury system
represents
a form of
"popular"
and irrational
justice.
Sometimes
jurists themselves,
alarmed
by
the technical
perfection they attain,
advocate the introduction of substantive considera-
tions into the law and in the short term at least make of law
something
more than a set of
techniques. They
react
against being
"slot machine"
lawyers
and advocate
judicial
creative-
ness25
as
they
believe is characteristic of the
Anglo-American system.
Weber allows that these
countervailing
tendencies have
strength
but it is
quite
clear
where he feels the future to lie in the
legal profession.
"In
any case,
the
juristic precision
of
judicial opinions
will be
seriously impaired
if
sociological, economic,
or ethical
argument
were to take the
place
of
legal concepts",
". . . it will be inevitable
that,
as a result of
technical and economic
developments,
the
legal ignorance
of the
layman
will increase.
Inevitably
the notion must
expand
that the law is a rational technical
apparatus,
which is
continually
transformable in the
light
of
expediential
considerations and devoid of all
sacredness of content."26
Legal
Positivism and
Bourgeois
Materialism
It is
impossible
to
give
a short overall characterization of
Weber's study
of law in
society except by seeing
it as an account
aiming
at the same level of
generality
and answer-
ing
the same
range
of basic
problems
as the Marxist
interpretation
of
society.
It is then a
total
paradigm
and a substantial
critique
would amount to a
major study
at several levels
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
the best label would be
"bourgeois
materialism".
For this is an account which
places
interests at the
centre,
but instead of the
polariza-
tion of
society
into the two
great camps
of
capitalists
and
proletariat
it dissolves
society
into a number of
conflicting
but
interdependent
interests,
none more basic than the others
and with different sources of
power. Among
these interest
groups lawyers appear
in the
broadest sense as an
independent group
with their own interests and
motivations,
which
are as often intellectual as
economic,
and with their own sources of
power,
a command over
legal logic
and rational
techniques
which make their
specialized
skills indispensable
in
economic and
political
life. Weber's
concept
of law then
underpins
the
independence
of
lawyers
as an interest
group,
contributes to 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 interpretation
of
history.
25
Ibid., p.
309.
26
Ibid., pp.
320-21.
25
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
different
positions
from those that Weber
adopted.
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 rather close 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
is 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
them is characteristic of modern life. Both
lawyers
and
sociologists
often feel themselves
in this
position.
Both
sociologists
and
lawyers
are interested in the
meaning
of rules and the
way they
are
applied
in social life. There are differences in orientation between
lawyers
and sociolo-
gists
but these differences do not
hinge upon
the commitment of the
lawyer
as
against
the
detachment and
empiricism
of the
sociologist,
Now if
this
is
so,
Weber's contrast between
the
sociological
and
juristic point
of view on law is ill-founded. Moreover this criticism
must also extend to his
concept
of law for we showed how
intimately
it was connected with
his
methodological
views.
In fact we found that Weber's treatment of the
concept
of law was at variance with his
ideas on how the
sociologist
considers ethics and
conventions, namely "exclusively
in
accordance with the notion of the 'ethical' which is
actually
held
by
the
people
in
question".
I think
again
this is to be
explained by
his determination to invent a
rigid dichotomy
between the idea of law and the idea of social science. For if one considers this dictum in
respect
of ethics and
conventions,
that is from the
point
of view of the actor which Weber
is
famously
associated with in contexts other than
law,
it becomes
apparent
that the
sociologist
must take on some of the functions which in
respect
of law he thinks are
exclusive to the
lawyer.
To write about the rules of
everyday
life involves a
conceptual creativity
on the
part
of
the writer. One cannot turn to a Code of
everyday
rules. One has first to write an account
of those rules one believes are held
by
the actors in
question
and then to ascertain whether
or not the rules are observed. Even that is a
simplification
of a
complex procedure
for
very
often the existence of the rule is
only
inferred from social reactions to its breach. In the
study
of the norms of
everyday
life or in what used to be called the
sociology
of
morals
there is a simultaneous
process
of abstraction from
reality
and
judgment
on that
reality.
In this
respect
the
sociologist
has all those functions which in
respect
of law Weber reserved
to the
jurist.
He both clarifies values and makes
judgments
in terms of them.
(I happen
also
to believe that this cannot be done without commitments to values but this is beside the
point here).
Now if Weber were to allow the
sociologist
to do this in
respect
of law it is clear
that
he would be
allowing
him to 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
from the
dignity
of law and its
independence.
Hence we
get
Weber's
insistence
that the
sociologist's concept
of law is different from the
lawyer's,
an insistence which
we
found had an
increasingly
hollow
ring
to it as Weber takes on the role of
partisan
for
a
particular juristic theory
in his account of Law in Economy
and Society.
Weber's concept
of law is
unacceptable precisely
because he wishes to
argue
for
a
fundamental distinction between
sociological
and
legal points
of view. We have to recognise
that in a
very important
sense the
jurist's conception
of law is
already sociological. By
that
I mean that as a
general concept
it
already
involves an abstraction from a
multiplicity
of
concrete circumstances and in its universal
applicability
across the boundaries of
different
27
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
implies
a criticism of Weber's
developmental
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's historical
developmental
account
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
rule to have the
determinacy
of
pure logic. Repeatedly
he uses the
phrase
"the
logical
interpretation
of
meaning".
But
meaning
is not
interpreted by logic. Meaning
is understood
through experience. Logic
refers to the structure of an
argument,
not to the
meaning
of its
terms. The "correct" or
"objective" interpretation
of rules
depends
on shared understand-
ings
and not on
logic.
It is the
degree
of deductive
logic
involved in the German view of Roman law which
impresses
Weber and leads him to see it as the
apogee
of
rationality,
that
gapless system
of
propositions
in which it is
possible
to derive a decision in
every
concrete
legal
case
by
means
of
legal logic.
This kind of
"rationality"
is
properly
called "rationalism". For the
ability
to
include the whole world within a
single
set of
propositions
is not of itself rational. The
fact,
for
instance,
that I
may
assert that all that
happens
in the world is an
expression
of either
the
"yin"
or the
"yang"
factor does
not,
in
spite
of the
promising comprehensiveness
of
my belief, guarantee rationality.
Weber adheres to a form of
"pan-logism"
which has its extreme form in the ideas of
Hegel,
but characterizes much of German
thought.
In Weber's dismissive attitude to the
empiricism
of
English
law and his
rejection
of the idea of reasonableness because of its
technical
imprecision
we can see the
expression
of one of the
major
cultural
cleavages
in
the Western world. It is a
cleavage represented very obviously
in different
systems
of
legal
thought
and
practice,
but also in
philosophy,
administration and science and is still a
significant
factor in the lack of mutual
understanding
between the
Anglo-Saxon
and
Germanic worlds.
When the
extraordinary
and irrational fascination with formal
logic
is
recognized
in
Weber's
work,
then the source of so
many
of his
paradoxical interpretations
of the
develop-
ment of modem law becomes
apparent. Only
if one believes that the intentions of the
parties
to a contract are irrelevant to formal
legal logic
is it
possible
to consider the most modem
developments
of commercial law as somehow a break with the
necessary power
of formal
law.
Only
on this basis is it
possible
to
reject
in
principle
the
participation
of
juries
in the
legal process. Only
in this
way
is it
possible
to see
juristic precision suffering through
the
"intrusion" of
sociological,
economic or ethical
argument.
In an
important
sense Weber's
emphasis
on formal
rationality
trivializes the functions
of law in
society.
As is
apparent by
his own historical
analysis
it is difficult to show
any
clear relation between formal law and the modern
economy. Very
different
legal
forms
provide
the framework for
capitalistic development. Propositions
of
any
content whatso-
ever can be
part
of a
legal system.
Law has no
substance,
it becomes mere form.
Lawyers
become the narrow
representatives
of law for the sake of law. For law has no
content,
it is
merely
that which commands assent and is enforced.
The
paradox, however,
which stems from this is that where there are conflicts of
laws,
where full
systematization
of law is not achieved
(and
this must
invariably
be the
case,
for
even Weber concedes that this
conception
of the
gapless,
coherent
system
of
legal propo-
sitions is
only
an
ideal),
under these circumstances there can be no
appeal
to
legal principles.
The
only
criteria left are
economic,
ethical or
sociological.
If these are
rejected
one is
29
handed over to the
arbitrary
decision of the
power holder,
for there are no
legal
criteria to
determine what should or should not be enforced. Those ideas of
justice,
the
compromises
which are reflected in them in which the
empirical English dabble,
are to be
rejected
as
imprecise
and outside the
lawyer's
technical
province.
Law is made
inherently
conservative
by
Weber's treatment of
it,
for
any change
in the
real conditions of social life which involves a
change
in the
meaning
of
legal concepts
has
to be viewed as an intrusion of substantive conditions and thus a
necessary
decline of formal
legal rationality.
On this basis the faster societies
change
the more we should
expect
the
intrusion of substantive considerations and the more
lawyers
should be involved in con-
tinuously changing
their ideas. Not on Weber's account. So
deeply
convinced is he that
formal
legal rationality
has the same intimate connection with the rationalization of the
modern world as modern natural
science,
that the
logic
of the
lawyer
is the
equivalent
of
precision
in natural
science,
that he discounts the obvious
growing weight
of substantive
considerations in modern law.
Weber mistakes the search for non-contradictoriness in
legal argument
for the strict
entailments of
syllogistic reasoning.
For him the
experiential
basis of law
gives way
to
logical proof. Legal argument
ceases to be a matter of
convincing
others of the
good
sense
of a train of
reasoning
about rules and facts and becomes an arcane set of verbal
techniques.
No wonder that the
layman
on this view becomes
inevitably
more remote from law.
Weber's view of law makes it the
property
of
professional experts.
So too does his view
of social science. To each
professional group
its own
expertise.
His
legal positivism
and
bourgeois
materialism are the
ideology
of the technical
expert,
an influential
expression
of
technocracy,
or
managerialism,
or whatever we care to label the first
three-quarters
of
this
century
in the Western world. Unless there is a more
general recognition
that
pro-
fessional
activity
involves much more than science and
logic,
that for instance
lawyers
in
the course of their work
implement
values of all
kinds,
some
essential,
others not essential
to the idea of
law,
we shall
stay firmly
within the bounds of technocratic
society.
Postscript
There are some
general points
which underlie the discussion here of Max Weber's
sociology
of law which it
may help
to make
explicitly. They
form
part
of view of social life
and of social
science,
hence of law
too,
which differs
very
much from Max Weber's. I think
they
are taken for
granted
in
many
modem
sociological
studies of law and show
why
Weber's
paradigm
has had little influence on recent
development
in the
sociology
of law
and cannot be
expected
to have in future either.
Perhaps
Weber's
major
influence has been in
artificially increasing
the contrast between
sociology
and law and in
propagating
the belief in inherent conflict between
lawyers
and
sociologists. Actually
the
degree
of conflict which
may
exist between
lawyers
and sociolo-
gists
stems as much from the
similarity
between their activities as from
differences, just
as
the conflict of conservatives and radicals stems from a common interest in
politics.
These
general points,
an alternative
paradigm
if one
likes,
are:
30
1. Two of the most
important components
of the
continuing process
of social con-
struction which we call
society
are the
descriptive
accounts of it
(everyday sociology)
that members have and the values
they
follow.
2.
Sociologists
are also members of
society! Qua sociologists they
have a
part
in
constructing
it.
3.
Sociologists
have to understand
(among
other
things)
the accounts and values of
others and in
writing
their accounts make
judgments
of value like
anyone
else.
They
have
a
particular
concern for a value called
"objectivity".
4.
Lawyers
are members of
society
too! Hence
they
have a
part
in
constructing it,
qua lawyers.
5. Like
anyone
else
lawyers
construct
society through
values and accounts.
They
are
particularly
concerned in a value called
"justice".
6. In
talking
about law
lawyers
are
already
involved in
everyday sociology
and often
in academic
sociology.
7. In
talking
about law
sociologists
are involved in
understanding
it.
8. Law is too
important
to be left to
lawyers.
9.
Society
is too
important
to be left to
sociologists.
The list could be extended much further of course. Weber would have
disagreed
with
just
about
every point
as set out here. It is on this basis that discourse between
sociologists
and
lawyers begins.
It
provides
a
quite adequately
fertile
ground
for
flourishing
dis-
agreement.
MARTIN ALBROW*
*
Reader in
Sociology, University College,
Cardiff.
31

Albrow - Legal Positivism and Bourgeois Materialism Max Weber's View of The Sociology

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Albrow - Legal Positivism and Bourgeois Materialism Max Weber's View of The Sociology

Transféré par

Droits d'auteur :

Formats disponibles

Cardiff University

Vous aimerez peut-être aussi