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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
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LEGAL POSITIVISM AND BOURGEOIS MATERIALISM:


MAX WEBER'S VIEW OF THE SOCIOLOGY OF LAW
My intentionis to give an accountof Max Weber'ssociologyof law but with special
referenceto problemsof basic method.1Much of Max Weber'scontributionto sociology
has beenmethodologicalin natureandwhathe has writtenon law is no exceptionto this.
Underlyinghis accountof the developmentof modernlaw withits lengthyexcursionsinto
the historyof legal thoughtand its manyanalysesof the interplayof economicand social
factorswith the professionalinterestsand outlookof lawyers,an accountof both dazzling
eruditionand impenetrablestyle, thereis a generaltheoryof the natureand development
of law. This theory stems from Weber'sbasic assumptionsabout the methodsof social
sciencegenerally.
In particularWeber'saccount of the relationsbetweenlaw and sociology and his
analysisof the developmentof law arenot accidentallylinked.His assertionsthat the legal
point of view is directedto determiningthe validityof law whilethe sociologistis interested
in whathappenswhenpeopleact in societywithlaw in mind,that thesetwo points of view
are quitedistinctwithno overlap,and his beliefthat legalthoughthas its own logic which
has beenexpressedin the generalhistoricaltrendto the increasingformalrationalityof law
are partof a singleview of the world,albeita complexand sophisticatedview whichdefies
the temerityof any commentatorwho seeks,as I do, to give it a label.
In showinghow this view of the world is expressedin his sociology of law I hope
simultaneouslyto indicate its scope and limitationsfor us in any programmefor the
sociology of law in contemporaryconditions.For in spite of its prodigiousscholarship
Weber'ssociologyof law has commandedrelativelylittleinfluenceand this has moreto do
withthe conceptualframeworkandintellectualoutlookwhicharetimeboundthanwiththe
of the style.
impenetrability
Thereis a paradoxin this. Weberwas trainedand practisedfor a time as a lawyer.His
dissertationwas on law in relationto mediaevaltradingcompanies.His interestin and
respectfor the law were sustainedthroughouthis life. He was a frequentand successful
litigant.It wasperhapsthe sectorof sociallife he knewbest.Whyshouldit be thathis work
on law has had so muchless influenceon subsequentgenerationsthanhis workon politics,
religion,sociologicaltheoryandthe philosophyof socialscience?Perhapsequallyneglected
have been his ideas in economics,in whichsubjecthe held his chair!
The quickansweris thatit was preciselyin those areasthat he was most a prisonerof
the dominanttheoriesof his time. They providethe uncriticallyheld assumptionsof this
most criticalof theorists.He acceptsthe paradigmsof the legalandeconomicscienceof his
time and his originalityin the other spheresstems very much from the applicationof a
special amalgamof these two forms of thoughtto subjectsbeyond their normal scope.
Webercalled himselfbourgeois.He was proud to acceptthat label. Law and economics
1 This paperis basedon a talk given to the Seminaron the Sociology of Law at the Centrefor Socio-Legal
Studies, Oxford, on the 31 January 1975. I am grateful to the participantsfor the points raised in
discussion.

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are the naturalinstrumentsof the bourgeoisie.For him they are constructedout of a pure
and timelessrationality.But it is preciselyin erasof rapidsocialand technicalchangethat
theyhaveto be continuallyrefashioned.Todaywe rightlyhavelittletrustin whatappeared
to be timelessprinciplesat the beginningof the twentiethcentury.
Allusionto Weber'sown imageof himselfbringsout a contextualpoint whichis vital to
of his sociologicalanalysisof law. A majortargetfor Weberthroughout
the understanding
his life was the historicalmaterialismof Karl Marx.Just as in his accountof the rise of
animportantandindependent
capitalismhe attributedto the religiousideasof Protestantism
causalposition,so he refusesto see law as any merereflectionof the materialinterestsof
the capitalistclass. Indeedhis writingon the sociologyof law is in the contextof a much
broaderand more ambitiousaccount of the generalrelationsof the economy to other
spheresof sociallifewhichseesthegrowthof capitalismas onespecialfacetof therationalization of modern society in all respects.In this generalprocessreligion,law, economics,
science,politicsall havebothindependentand dependentpositionsin relationto eachother
and none has priority.It is a multi-factorapproachto societal analysiswheresociology
emergesvery much as the disciplinewhich traces the bonds betweenthese institutional
areas.Weberiansociologyis thereforeverymuchthe responseto and bourgeoisequivalent
of Marxismin both scope and generality.
If Marxis the majorantecedentof Weber'sinterestin the sociologyof law, it is in a
very generaland unspecifiedform. Weberwas not interestedin Marx'swork in any very
scholarlyway and to some extenthis attackwas on vulgarMarxismin the broadestsense.
In the scholarlycontextthereis a minorantecedentwhichdeservesmention.In 1894Rudolf
Stammlerhad published WirtschaftundRecht nachder materialistischenGeschichtsauffassung

(Economyand Law accordingto the MaterialistConceptionof History).He attemptedto


show on the basis of epistemologicalconsiderationsthat it was impossibleto view the
economyas fundamentalto society.Throughanalysingthe idea of sociallife he cameto the
conclusionthat its essencewas in activityin accordancewithcommonrules.Theseruleshe
identifiedas law and he saw law as both constitutiveof and determiningsocial life.
In 1907Weberwrote a substantialrefutationof Stammlerin a reviewof the second
editionof his book.2This containsan analysisof whatis involvedin studyingrulesof any
kind and in particularmakes distinctionsbetween the evaluation, interpretationand
empiricalstudyof the effectsof rules.He uses the exampleof a gameof cardsto illustrate
his argumentandproceedsto the pointthat,complexthoughthe analysisof a gameof cards
is, the case of law is muchmorecomplicatedbecause,unlikea gameof cards,the realityfor
whichlaw is relevantis not totally definedby law. As he said when studyingthe place of
Protestantismin the rise of capitalismhe was intentnot to replacea one-sidedversionof
historywith one that was equallyone-sided.In avoidingMarx'seconomicdeterminismhe
wishedalso to avoid Stammler'slegal idealism.
I mentionthis still untranslatedpaperof Weber'sbecauseit providesthe methodologicalfoundationsfor his sociologyof law and becauseit is neglectedby Max Rheinstein
2 "R. Stammler'sUeberwindungder materialistischenGeschichtsauffassung",in Max Weber,Gesammelte
(1968 J. C. B. Mohr (Paul Siebeck),Tubingen)291-359.
Aufsdtzezur Wissenschaftslehre

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in his otherwiseoutstandingintroductionto his editionof Weber'swritingon law.3A rare


occasionon whichWeber'spaperhas receivedthe attentionwhichis its due has been in
PeterWinch'sTheIdeaof a SocialScience,only to receivetreatmentwhichputs us almost
back to Stammler'sposition.4In all other respectsRheinstein'sintroductionis of the
greatestvalue to the understandingof Weber'ssociology,his sociology of law and the
generalproblemsof the relationsof law and sociology. It makes more than this short
preambleunnecessarybeforeturningto the structureof Weber'sargument.
Weber's View of the Relations of Law and Sociology

For Weberit is axiomaticthatthe legaland sociologicalapproachesto the studyof law


aredifferent.Thelegal scholarorjuristis concernedto examinethe wayin whichthe actual
behaviourof judges,advocates,criminalsor citizensmeasuresup to the ideal normsof the
legal system.Thejuristis thereforeusingthe law as his standardof valueagainstwhichto
measurethe behaviourof men in the world. The sociologisthoweversimplyregardsthe
legalruleas a componentof an empiricalrealityand concernshimselfwith establishingthe
extentto whichit operatesas a motivefor those who enforceit, as a factorfor those who
obey it, or as an obstaclefor those who infringeit.
Thatis the earlyversionof his accountof the relationbetweenwhathe calledthe "dogmatic"or juristicinterpretationof the law and the empiricalor sociologicaland is to be
foundin his essayon Stammler.The laterversionwhichis foundin Rheinsteinis somewhat
different.
In Law in Economyand Society Weber still holds firmlyto a profounddifference
betweenthe juristicand sociologicalviews of law but in this case the juristicviewpoint
consistsfar morein findingthe idealmeaningof the legalnorm,definingthe factsto which
it mightapplyand fittingit into a generalsystemof legalpropositions.One mightsay that
the later accounthas becomea more academicversionof the differencebetweenthe two
standpoints.Whereasin the early version the academiclawyerseems essentiallyto be
scrutinizingand to an extentreplicatingthe judicialprocess,in the latterhe is concerned
morewith correctlogic and the elaborationof the meaningof legalrules.
I findthis differenceof emphasisto be of considerableimportanceandwill returnto it,
but for the momentthe importantthingto note is thathoweverit is conceivedWeberholds
there must be a differencebetweena juristic, evaluative,or as he called it "dogmatic
scientific"standpointand an empiricalor sociologicalposition. That basic convictionis
simplyanotherfacet of the articleof faith which sustainedhim and remainedconstant
of valueandfactin socialresearch;
throughouthis life thattherecouldbe no amalgamation
empiricalscience must remainvalue-free.Weber'swork contains all kinds of different
accountsof the relationshipof fact and valuebut that basicconvictionneverwavers.It is
the pivoton whichhis conceptionof sociologyturnsandthe pointto whichanyre-appraisal
of his idea of the relationsof sociologyand law mustreturn.
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 Relationto Philosophy(1958 Routledge, London) 49-51.

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The distinctionbetweenthe two approachesto law leads Weberinto a consideration


of the conceptof law. It is alreadyclearin his essay on Stammlerthat Weberregardsthe
methodologicalproblemsof the studyof law as beingin principleno differentfrom those
in the studyof any set of rules,be they conventionsor merelythe rulesof a gameof cards.
Law in this respecthas no specialdignity.This positionis elaboratedin Law in Economy
and Society. In all determinatesocial groupsthereare rules. Sometimesthese amountto
merecustom, wherenobody reallythinkswhat he is doing has any real importanceand
thereis no sense of obligationinvolvedin followingthe rule. But more importantis the
fact that in social groupsthe actorsregularlyhave the idea of a legitimateorder,or set of
ruleswhichinvolvesa degreeof obligation.Thoughthis set of rulesmay not be respected
by everyoneand indeedsome may flout it or use it in a cynicalway, nonethelessit is the
fact thatto a substantialnumberit has a bindingforcewhichgivesit an importancein both
social life and sociologicalanalysis.Such a social order can be called convention,says
Weber,if it is sustainedmerelyby approvalor disapproval.It "will be called law if it is
externallyguaranteedby the probabilitythat coercion(physicalor psychological),to bring
about conformityor avengeviolation,will be appliedby a staff of people holdingthemselvesspeciallyreadyfor the purpose."s
We may ask: "Is this Weberthe lawyer'sconceptof law, or Weberthe sociologist's?"
Thisis not easy to answer.Rheinsteinpointsout the similaritybetweenWeber'sidea of law
and that of Austin'sdefinitionof law as the commandof the sovereign.He also notes the
connectionbetweenWeber'sviewsand thoseof Kelsenwho developeda puretheoryof law,
devoidof ethics, a doctrineof legalpositivism.In otherwordsthereis nothingin Weber's
formulationwhichautomaticallyrulesit out of considerationas a conceptof law for jurisprudence.Moreoverit might seem to be impliedby Weber'semphasison the inherent
differencesin the sociologist'sand lawyer'spoints of view that they would necessarilybe
points of view on the samephenomenon.Afterall are they not the sameset of ruleswhich
the academiclawyertests for their coherenceand the sociologistfor their effectson the
real world?
But at otherpointsit seemsthatWeberis advocatinga conceptof lawwhichis peculiar
to the sociologist.As he says:"In ourcontextthe conceptof law will be definedas an order
whichdependson an enforcementstaff. In otherconnectionsdifferentdefinitionsmaywell
In other words, you choose your conceptaccordingto the intellectual
be appropriate."6
purposeyou have. Weberadds that the legal terminologymay be quitedifferent.Thusthis
definition,he notes, excludesinternationallaw as a form of law becuaseit has no supranationalenforcementagency.Yet, again, there is no reasonwhy this point may not be
madeby an academiclawyerand Weberagreesthatit has beentime andagain.The section
which Rheinsteinheads with "The SociologicalConcept of Law" overstatesWeber's
commitmentto the notion of a sociologicalconcept,for the Germanedition entitlesthis
section: "Thejuristic and sociologicalconceptand meaningof the legal order"and the
discussionwhichfollows is largelyabout the respectivepoints of view.7
5

Rheinstein,
op. cit.,p. 5.

6 Ibid.,p. 6.
7 Ibid., p. 11. Max Weber, Wirtschaftund Gesellschaft(1956 J. C. B. Mohr (Paul Siebeck),Tubingen)181.

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Whateverthe balanceit is apparentthatthe two issues,the disciplinaryviewpointupon


the subjectmatterand the constitutionof that subjectmatter,are closely intertwinedfor
Weberso that at one point at least they seem to merge.In his essay on Stammlerhe
distinguishedbetweenthe ideal and empiricalvalidityof a legal proposition.The ideal
validityof a legalpropositionmeantthat thejuristwho sought"juristictruth"would find
a bindingrelationshipbetweencertainconceptsand he would be obligedintellectuallyto
posit that such and such a rule shouldbe accepted.But the empiricalvalidityof a legal
propositionsimplyconsistedin the chancethat it had a demonstrableeffectin the world.
In this sense"Empiricalvalidityis ultimatelyas mucha featureof 'juristicerror'as 'juristic
truth'."8
Weberalludesto thisnotionof empiricalvalidityin anotherdefinitionhe offers:"'Law',
as understoodby us, is simplyan 'ordersystem'endowedwith certainspecificguarantees
of the probabilityof its empiricalvalidity".9In this case we clearlyhavea definitionwhich
is dominatedby what Weberconsidersto be the methodologicalnecessitiesof empirical
science. But we are therebyleft in considerabledifficultiesfor it is clear that what the
sociologistconsidersas law may turn out to be quite differentfrom what the jurist does.
Can the sociologistconsideras law a systemof rulesfrom whichthe lawyerwould withhold the term?The methodologicaltenetsof the sociologistnow appearto determinewhat
whathappensto the pointof viewof the actor
can be calledlaw.Underthesecircumstances
or
be he lawyer,jurist,judge,legislator,litigant simplycitizen?Whathappensto the famous
insistenceon the subjectivemeaningof actionwhichis so oftenassociatedwithMax Weber
and whichis exemplifiedin this self-samecontextby the view he takesof ethics?
Whetheror not a normativeidea which is actually held by human beings belongs to the realm of
ethics, or, in other words, whetheror not a given norm is one of 'mere'law or convention must be
decidedby the sociologistexclusivelyin accordancewith that notion of the 'ethical'which is actually

heldby the peoplein question.10

If the "peoplein question"are the courtof appealin the case of ethics,whyare theynot in
the case of law?This is a questionto whichwe shallhaveto return.
WhenWeberleavesthe topicof lawin generalandproceedsto a discussionof the main
substantivefields of law, it is apparentthat sociologicalviews of law must have a more
intimateconceptualrelationshipwithlegalviewsthanWeber'sconcernto establishsociology
as an empiricaldisciplinemight suggest.The first majordistinctionhe considersis that
betweenpublicand privatelaw, of greatimportancein Germanlegaltheory.Immediately
he adoptswhathe calls the "sociologicaltest"and definespubliclaw "as the total body of
those norms which regulatethe activitiesof the state as such" and privatelaw as "the
totality,not of those normswhichrelateto the state as such, but of those normswhich,
whileissuingfromthe state,regulateconductotherthanstateactivity."He goes on: "This
kind of definitionis rathernon-technical,and, therefore,difficultto apply. But it seems
neverthelessto constitutethe basis of almost all other attempteddistinctionsof the two
8 Max Weber, Wissenschaftslehre
op. cit., p. 347.
9 Rheinstein,op. cit., p. 9.
to Op. cit., p. 8.

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greatbranchesof the law."11Herethen the non-juristicconceptis not simplya specialized


viewpointfrom empiricalscience, it apparentlyexpressessomethinglawyersattemptto
conceptualizebut to which they can only approximate.Legal theoriesand practicesthen
appearas a variablesurfaceexpressionof deepercategoriesof social action and types
of social structurewhich the sociologistreveals,or, to use anothersimile, as the dialect
formsof a moreuniversallanguage.
In his rejectionof theeconomicdeterminismof Marxandthe legalidealismof Stammler
Weberhas come close to a position which one could call sociologicaldeterminism.The
contentof legal theoriesis relativelyunimportant,what mattersis politicalorganization,
the real institutionsof political society. These are the infra-structure.
But in emphasising
this social structuralbasis, Weberis simultaneouslyprovidinga generalaccountof legal
thinking.If we recallthe distinctionhe drewin the essay on Stammler,betweenthe social
scientist'sinterestin law and the jurist's,a key aspectof it was the emphasisand commitmentby thejuristto normsof purerationality.Justas the sociologistwas interestedsimply
in the fact that normswereor werenot observed,so the lawyerwas simplyinterestedin the
technicalcorrectnessof argument.
It is not thereforesurprisingthat Webermovesdirectlyfromconsideringthe types of
politicaland social arrangements
underlyingthe specializedfieldsof law to a consideration
of the formalstructureand techniquesof legalthought.I thinkRheinsteinis rightto make
a separatechapterheaded "Categoriesof Legal Thought"out of a section which in the
Germaneditionrunsstraighton fromthe considerationof substantivefieldsof law.12In the
briefspaceof four sideswe get the centralideas underlyingWeber'swholeapproachto law.
The various schools of legal thought can be seen as having developed and become
differentiatedfrom each other accordingto the type of political organizationand the
"internalstructureof legal thought".Weber then addresseshimself to the problemof
advancinga set of adequatecategoriesfor the analysisof the structureof legal thought.
Paradoxesare alreadybeginningto multiply.What was to have been an empirical
study of law in the world beginsto be an analysisof legal theories.Weber'sconcernto
advancea sociologicalview of law turnsout to be an attemptto advancea theoryof law
which dependson identifyingthe common elementsin any systemof legal thought and
showinghow they have developedthroughthe historyof law, and it is with this that the
rest of his sociologyof law is concerned,with a wealthof historicalillustrationand conceptualrefinement,but clearlydirectedto confrontingjurists'theoriesof law. So it is that
Weber's"empirical"studyof law beginsto revolvearoundwhathe held to be the heartof
the dogmaticjurist'sconcernin law, the most ideal and least empiricalaspectof all, the
natureof legal rationality.This is the centralnotion in the Weberianaccountof law in
economyand society,as is the conceptof rationalitythe centralnotion in the total corpus
of Weber'swork.
The ideaof rationalitycan be appliedto law in severalwaysaccordingto Weber.As far
as a body of law as a whole is concernedit amountsessentiallyto systemization,the con11 Ibid., p. 41.
12 Ibid., pp. 61-4.

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structionof a gapless system of rules. In the actual makingof law it involves a basic
distinctionbetweenformaland substantiverationality.Formalrationalitycan simplybe a
matterof attendingto certainproceduralformulae,symbolicacts, signatureand so on, but
moreimportantlyin the modernworldinvolvesthe formationof legalconceptsof a highly
abstractnaturethe meaningof whichis analysedand madeclearin beingappliedto any
concreteset of facts.Substantiverationalityon the otherhandinvolvesthe decisionof legal
problemsby referenceto ethicalimperatives,normsof a utilitarianor expedientialkind.
Thisformof rationalityin law is alwaysin tensionwith the formalkindof rationality.It is
this latter which is peculiarlylegal. "The peculiarlyprofessionallegalistic,and abstract
approachto the law in the modernsenseis possibleonly in the measurethat law is formal
in character."Thus"dogmaticlegal science"becomesboth the sourceof the independence
of the legalprofessionand a measureof the empiricaldevelopmentof law:
Present-daylegal science,at least in those formswhichhave achievedthe highestmeasureof
i.e. thosewhichhavebeenproducedthroughthe legalscience
andlogicalrationality,
methodological
of thePandectists'
CivilLaw,proceedsfromthefollowingfivepostulates:
viz.first,thateveryconcrete
of an abstractlegal propositionto a concrete'fact situation';
legaldecisionbe the 'application'
second,that it mustbe possiblein everyconcretecase to derivethe decisionfromabstractlegal
propositionsby meansof legal logic; third,that the law mustactuallyor virtuallyconstitutea
or must,at least,be treatedas if it weresucha gaplesssystem;
'gapless'systemof legalpropositions,
fourth,that whatevercannotbe 'construed'
legallyin rationaltermsis also legallyirrelevant;and
fifth,thateverysocialactionof humanbeingsmustalwaysbe visualizedas eitheran 'application'
or 'execution'of legalpropositions,
or as an 'infringement'
thereof.13

It is to the developmentof these formalqualitiesof law that Weberaddresseshimselfin


the rest of his sociologyof law.
Weber'sAccount of the Developmentof Modern Law

Weber'shistoricalaccountof law consistsof relativelyfew themeswoventogetherto


a
give veryrichtexture.Baresummarycando scantjusticeto thisrichnessbutbaresummary
is necessarybecausetoo easily is the readeroverwhelmedby the eruditionand repeated
flashesof insight.The themesincludethe waysin whichnew law is generated,the relation
betweenlaw and the economy,in particularthe way law facilitateseconomicdevelopment,
the weight of economicand political factors in determiningthe balanceof formal and
substantiverationalityin law, the intellectualoutlook and interestsof lawyersas a factor
in legal development,but aboveall the tensionbetweenformaland substantiverationality
as an everpresentelement.
Rightawayit mustbe saidthatthereis clearlyan intimateconnectionbetweenWeber's
methodologicaland definitionalapproachto law whichwe havealreadydiscussedand this
accountof the tensionbetweenformaland substantiverationality.His sociologicalpositivismin respectof the conceptof law excludesthe possibilityof any kindof consideration
of the values whichjurists normallydiscuss.In particularit resolutelyand deliberately
avoids any discussionof justice or any considerationwhich might distinguishbetween
enforcedcodes of rulesaccordingto the valueswhichtheyexpress.(Thisis the counterpart
in anothercontext of his determinationto definethe State in termswhich exclude any
13 Ibid., p. 64.

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referenceto its ends).Weber'sformalismin his accountof legalthoughthas the sameeffect.


The lawyeris presentedas being ultimatelyinterestedin the logicalcoherenceof a system
of propositions,and not in the valueswhichthose propositionsmightexpress.The lawyer
thenappearsas anotherkind of scientist,dogmaticit is true,but uncommittedto anything
exceptthe logic of law.
Now Weber'sconcept of substantiverationalitymakesreferenceto all those aspects
whichare excludedby his legal positivism.With law definedin the way Weberdoes and
with the lawyerpresentedas he is, it is no wonderthat substantiverationality,namely,all
those considerationsof public good, welfare,economicadvantage,justice and morality
aboutwhichthe legalprofessionhas viewsas much,if not morethan,any othergroup,and
whichare incorporatedinto any legalcode appearas in permanenttensionwith the formal
rationalityof law.
This can be illustratedfrom Weber'sconsiderationof the factors involved in the
creationof new rulesof law. Theyarise,he says, out of new formsof conduct,whicheither
changethe meaningof existingrules, or else resultin the creationof new rules. In this
creativeprocessnew agreementscan resultin newrules,or theserulescan be imposedfrom
above. In both these processesthe participationof specializedand trainedlegal personnel
is often decisive in determiningthe characterof the law that is created.In his lengthy
discussionof the organizationof legalinnovationthereis only a shortreferenceto whathe
calls "purely 'emotional'factors, such as the so-called sense of justice". He goes on:
"Experienceshows however,that the 'sense of justice' is very unstableunless it is firmly
guidedby the 'pragma'of objectiveor subjectiveinterests.It is, as one can still easily see
today, capable of sudden fluctuationsand it cannot be expressedexcept in a few very
In fact Webersees this "sense",beingemotional,as
generaland purelyformalmaxims."14
a sourceof irrationaladjudication,a "popularconception"as againstthe "lawyer'slaw"
of the professionals.This is interestingbecauseit is one of the few occasionsWeberrefers
to popularconceptionsof law and secondlybecauseof the dismissiveway he speaksof
what is the substancebehindformalmaxims.The fact that the sense of justicehas to be
expressedin formalmaximsapparentlymakesit unimportant.The formalityof the maxims
is what matters.
The dichotomyof formand substancehas an equallyimportantpartto playin Weber's
accountof the relationsof the economyto law. Questionsof economicadvantage,welfare,
profitabilityand so on are for him intrinsicallyheteronomous,non-legalor substantive.By
emphasizingthe formalnatureof law Weberhas in fact begunhis analysisin such a way
that he can stressthe independenceof the two spheres.He can then treatlaw and economy
as distinctvariablesand examinetheirreciprocalinteraction.
In his examinationof the influenceof the economyon law Weberconcludesthat in
general economic interestsdo not determinethe directionof legal rationalization.The
invention of the appropriatelegal techniquesfor modem economic life, e.g. agency,
negotiableinstrument,or assignmentdependson the intellectualtrainingand body of legal
14

Ibid., p. 75.

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ideas available to the legal experts of the time.15While bourgeoisgroups demand a


calculablelaw and thusaredecisivefor a generaltrendto formallaw,theyhaveno influence
on the developmentof the most highlyrationalizedforms."Thislogicalsystematizationof
the law has been the consequenceof the intrinsicintellectualneeds of the legal theorists
and theirdisciples,the doctors,i.e. of a typicalaristocracyof legal literati."16For Weber
the test case for the independenceof legal structurefrom economicinterestsis very much
England.The history of the developmentof the legal structureof organizationsis very
differentin Englandfrom that on the continentand yet capitalistdevelopmenttook place
in both.17

ActuallyWeber'streatmentof the Englishsituationrevealsdifficultiesin his entire


discussionof the relationsof law and the economy.In any case for him Englishlaw was
inferiorto the continentalin its lower degreeof rationalization.He sees it as empirical,
complicatedand expensiveand "it may indeedbe said that Englandachievedcapitalistic
supremacyamongthe nationsnot becauseof, but ratherin spiteof, its judicialsystem."18
But at the same time Webercannot avoid commentingon the class basis of Britishlaw.
He sees it as a blatantcase of one law for the richand one for the poor. Onlythe richcan
of thejusticesof the peace.
affordlitigationand the poor put up with the "Khadi-justice"
This denial of justice was in close conformity with the interests of the propertied,especiallythe
capitalistic, classes. But such a dual judicial policy of formal adjudicationof disputes within the
upperclass, combinedwith arbitrarinessor defacto denegationof justice for the economicallyweak
is not always possible.19

Weber'sattitudeto Englandis wortha paperin itself,but what mustinterestus here


is that Weber'sown judgmenton what benefitsor does not benefitwhich class appears
and uncertain.It is difficultto avoidthe conclusionthat,evenon his account,
indeterminate
the structureof legal thoughtis very epiphenomenal.Economicdevelopmenttakes place
regardless.The bourgeoisiealways gets the law to suit it. By concentratingon law as
techniquehe makesit appearimportantfor the independenceand prosperityof those who
live from the law and nothingmore.
Nothing could be more indicativeof the profoundantinomiesand paradoxesof his
view of the relationof formaland substantiveconsiderationsin law thanhis discussionof
contract.For Weberlegalrightsare the "reflex"of legalregulationand rightsare a source
of power.In so far as law createsrights,it givespowerto particularindividualswhichthey
can then exploit.Certainstructuresof rightscan thereforefavourthe emergenceof certain
kinds of economicrelation.In the modem world the extentof contractualfreedomis so
great that one can designatemodern society as of the contractualtype. Whateverthe
individual(or corporategroup) sees as in his interests,economic or otherwise,he can
organizeon the basisof a contractualrelationshipwith otherswhichthe law will recognize
15 Ibid., p. 131.

16 Ibid., p. 278.
17 Ibid., pp. 176-188.
18 Ibid., p. 231.
19 Ibid., p. 230.

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and enforceif need be. The resultis that marketforcesof the economyhave a scope for
developmentbeyondanythingexperiencedbefore.This legal "freedom"becomesthe basis
of economicservitudefor wide strataof society.
On suchthemesWeber'srealismamountsto a critiqueof contemporarysocietyowing
muchto and quiteas trenchantas Marx's.It wouldbe quitewrongto imaginethatbecause
Weber accepts the bourgeoislegal and economicscience of his time that this translates
itself into a complacentacceptanceof the statusquo. On the contrary,his whole analysis
of rationalizationis a despairingindictmentof the fate of both bourgeoisieand proletariat.
Now this mightappearto be a decisiveargumentin favourof seeingthe development
of legal techniqueas a majorfactorin economicdevelopment,and indeedthis appearsto
be why Weberintroducesthis theme.But towardsthe end of Law in Economyand Society
it appearsthat the developmentof moderncommerciallaw in particularhas quiteanother
significance,for it gives very full scope to industrialand commercialpressuregroupsto
have transactionsdefinedas commercialeven whenthey are not conductedby merchants,
so that out of economicexpediencya commercialmeaningmay be imposedon what was
not intendedas such.20Alternatively,the realintentionsof the partiesto a contractmaybe
takeninto account- and this in Weber'sviewis equallydestructiveof the formalcharacter
of law. Thus:
In the sphereof privatelaw theconcernfor a party'smentalattitudehas quite generallyentailed
evaluationby the judge.'Good faithand fair dealing'or the 'good'usageof tradeor, in other
words,ethicalcategorieshavebecomethe test of what the partiesare entitledto mean by their
'intention'.Yet, the referenceto the 'good'usageof tradeimpliesin substancethe recognitionof
suchattitudeswhichareheldby the averagepartyconcerned
withthecase,i.e.,a generalandpurely
businesscriterionof an essentiallyfactualnature,suchas the averageexpectation
of the partiesin a
It is thisstandardwhichthelaw hasconsequently
to accept.21
giventransaction.

So it appearsthat much of the developmentof modernlaw in relationto economic


affairs can only derogatefrom the formalityof law and the independenceof judicial
decision. "Logicallyconsistentformallegal thinking"is incompatiblewith the "fact that
the legally relevantagreementsand activitiesof privateparties are aimed at economic
resultsand orientatedtowardseconomicallydeterminedexpectations... Lawyers'law has
neverbeen and neverwill be broughtinto conformitywith lay expectationunlessit totally
renounces that formal character which is immanent in it."22

As with his discussionof the relationof the economyand law so Weber'sanalysisof


relations
of law and politics is focussed on the tension of formal and substantive
the
But
rationality. hereWeberseesa moredirectinfluenceof politicalfactorson the law,which
is hardly surprisingsince his definitionof law contains that element of realismwhich
emphasizescoercion, enforcementagenciesand hence political power. In this sense the
relationsof law and politicsare muchmoreconceptualthanempiricaland this meansthat
the attemptto analysetheir relationsas two separatevariables,contingentlyrelated,as
20 Ibid., pp. 302-3.
21 Ibid., p. 307.
22 Ibid., p. 308.

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Weberdoes withlaw and the economyis less possible.ThusWebershowshow the development of muchmodem law involvedthe incorporationof separatelegalcodes into a single
jurisdictionthroughthe creationof specialrightsand that the centralizationof the State
involvessuch an extensionof legalconcepts.
But here too formally rational law finds its independenceand clashes with both
politicalexpedienceandthe attemptto regulateStateaffairsaccordingto moralor economic
principles.IndeedWeberdevelopsa theorywhichseesthe lawyersacquiringan independent
powerpositionby theirabilityto becomedetachedfromthe competinginterestsin a plural
society.The patriarchalmonarchwould find that in usingjuristicexpertshe would have
handed over his capacityto organizehis affairsautonomously.Formaljustice reduces
and favoursthose with economicpowerat the expenseof those with political
arbitrariness
The
power.
enlighteneddespots of the eighteenthcenturyin particularsought to avoid
juristic hair-splittingand to avoid the elaborationof law by professionaljurists. The
PrussianGeneralCodeof 1794was an attemptat systematicrationalismof a substantively
rationalkind.Butfor Weberthiscode, whichindeedsurvivedonly until 1896,was a failure.
Its claritywas obscuredby taking"as its point of departurenot formallegalconceptsbut
the practicalrelationsof life."23
This discussionof the PrussianCode leadsWeberinto an accountof the FrenchCivil
Code and a concludinggeneraldiscussionof the conflictsbetweenformaland substantive
rationalityin modernlegalthought.It is at this point that one can see all the moreclearly
that Weber'sanalysismust be seen as much as a contributionto juristicdebate as to a
sociologyof law and it becomesquiteobviousthat Weberis in fact espousinga particular
juristicdoctrine.The FrenchCode attemptsto base its laws on a normativestandardof
naturallaw. The sourcesof naturallaw doctrineare various,stemmingfromStoicismand
Christianity,mediaevalEnglish ideas of individualrights, and the eighteenthcentury
enlightenment.In Weber'sdefinition"Naturallaw is the sum total of all those norms
which are valid independentlyof, and superiorto, any positivelaw and which owe their
dignitynot to arbitraryenactmentbut, on the contrary,providethe very legitimationfor
the bindingforceof positivelaw."24
Naturallaw was oftenexpressedin veryformalaxiomsbut in practice,arguesWeber,
andindeednecessarily,naturallawideasinvolvebringingintothediscussionof lawproblems
of practicalityand usefulness.It involvesthe Englishconceptof reasonableness
ratherthan
Law.
Such
a
vital
of
of
Roman
notes
the
notions,
Weber,play
partin all
rationality logic
socialistmovements.But nonethelesshe considersthesemetajuristic
justificationsof law to
be everywhereon the retreat.Intellectualscepticismand the relativizationof moralshas
led to seeing such metaphysicalclaims as the mere expressionof compromisesbetween
conflictinggroups.So legal positivismhas advancedirresistiblyand the legal profession
becomesa conservativeforce simplyconcernedto preservethe law of the moment from
either proletariandemandsfor social justice or patriarchalwelfare-statism.In this conservatismthe commandby the legal professionof the technicalexpertiseof formallegal
23 Ibid.,pp. 280-1.
24 Ibid.,p. 288.

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rationalityis its greatpowerasset and also its intellectualdelight.The formalexpertiseof


the lawyerand the conceptionof lawas a gaplesscomplexof norms,factorswhichoriginally
facilitatedthe receptionof RomanCivillaw, had givento the legalprofessionthat power
resourcewhichtranscendedand indeedmadeirrelevantthe substanceof Romanlaw.
All kinds of countervailingtendenciesto the advanceof formalisticlegal rationalism
mightexistin the modernworld.Webergivesa resum6of them.We havealreadymentioned
ideaswiththeirlow levelof rationalism,crude
his viewof commerciallaw.Anglo-American
empiricismand relativeaccessibilityto the laymanrepresentan exception.Thejury system
representsa formof "popular"andirrationaljustice.Sometimesjuriststhemselves,alarmed
by the technicalperfectionthey attain,advocatethe introductionof substantiveconsiderations into the law and in the shorttermat least makeof law somethingmorethan a set of
techniques.Theyreactagainstbeing"slotmachine"lawyersand advocatejudicialcreativeness25as they believeis characteristicof the Anglo-Americansystem.
Weberallows that these countervailingtendencieshave strengthbut it is quite clear
wherehe feels the futureto lie in the legalprofession."In any case, thejuristicprecisionof
judicialopinionswill be seriouslyimpairedif sociological,economic,or ethicalargument
were to take the place of legal concepts", ". . . it will be inevitable that, as a result of

technicaland economic developments,the legal ignoranceof the laymanwill increase.


Inevitablythe notion must expandthat the law is a rationaltechnicalapparatus,whichis
continuallytransformablein the light of expedientialconsiderationsand devoid of all
sacrednessof content."26
LegalPositivismandBourgeoisMaterialism
It is impossibleto give a short overallcharacterizationof Weber'sstudy of law in
societyexceptby seeingit as an accountaimingat the samelevel of generalityand answering the same rangeof basic problemsas the Marxistinterpretationof society.It is then a
total paradigmand a substantialcritiquewouldamountto a majorstudyat severallevels
of analysis. As far as his theory of law is concernedI would suggest calling it "legal
positivism".But as a generalaccount of law in society perhapsthe best label would be
"bourgeoismaterialism".
For this is an accountwhichplacesinterestsat the centre,but insteadof the polarization of society into the two greatcamps of capitalistsand proletariatit dissolvessociety
into a numberof conflictingbut interdependent
interests,none morebasicthanthe others
and with differentsourcesof power. Among these interestgroupslawyersappearin the
broadestsense as an independentgroup with their own interestsand motivations,which
are as oftenintellectualas economic,andwiththeirown sourcesof power,a commandover
legal logic and rational techniqueswhich make their specializedskills indispensablein
economic and politicallife. Weber'sconcept of law then underpinsthe independenceof
lawyersas an interestgroup,contributesto a vision of societyas a pluralityof competing
groupsand is part of an empiricalmultiple-factormethodologyof social science.It is also
part of a generalinterpretationof history.
25 Ibid., p. 309.
26

Ibid., pp. 320-21.

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Just as with Marx it is possible to wonder at the innumerableincisive 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 ratherclose relation with the real world. Moreover 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 regardedas 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-judgmentsare 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-judgmentis 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-judgmentsare made by those not committed to them. The judge may not agree
with the law he is asked to interpretand administer, but that does not help those who suffer
his unwilling verdict. This capacity to express value-judgmentsand remain detached from
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them is characteristicof modernlife. Both lawyersand sociologistsoften feel themselves


in this position.
Both sociologistsand lawyersare interestedin the meaningof rulesand the way they
are appliedin social life. Thereare differencesin orientationbetweenlawyersand sociologists but these differencesdo not hinge upon the commitmentof the lawyeras againstthe
detachmentand empiricismof the sociologist,Now if this is so, Weber'scontrastbetween
the sociologicaland juristic point of view on law is ill-founded.Moreoverthis criticism
mustalso extendto his conceptof law for we showedhow intimatelyit was connectedwith
his methodologicalviews.
In fact we foundthat Weber'streatmentof the conceptof law was at variancewith his
ideas on how the sociologist considersethics and conventions,namely "exclusivelyin
accordancewith the notionof the 'ethical'whichis actuallyheldby the peoplein question".
I think again this is to be explainedby his determinationto invent a rigid dichotomy
betweenthe idea of law and the idea of social science.For if one considersthis dictumin
respectof ethicsand conventions,that is from the point of view of the actorwhichWeber
is famously associatedwith in contexts other than law, it becomes apparentthat the
sociologist must take on some of the functionswhich in respectof law he thinks are
exclusiveto the lawyer.
To writeaboutthe rulesof everydaylife involvesa conceptualcreativityon the partof
the writer.One cannot turnto a Code of everydayrules.One has firstto writean account
of those rulesone believesare held by the actorsin questionand then to ascertainwhether
or not the rulesare observed.Eventhat is a simplificationof a complexprocedurefor very
often the existenceof the rule is only inferredfrom social reactionsto its breach.In the
study of the norms of everydaylife or in what used to be called the sociology of morals
thereis a simultaneousprocessof abstractionfrom realityand judgmenton that reality.
In this respectthe sociologisthas all thosefunctionswhichin respectof law Weberreserved
to thejurist.He both clarifiesvaluesand makesjudgmentsin termsof them.(I happenalso
to believethat this cannot be done withoutcommitmentsto valuesbut this is besidethe
point here).
Now if Weberwereto allow the sociologistto do this in respectof law it is clearthat
he would be allowinghim to have the same functionsas the jurist and givinghim a constructivepart in the definitionof law as well as the legal process.This would certainly
derogatefrom the dignity of law and its independence.Hence we get Weber'sinsistence
that the sociologist'sconceptof law is differentfrom the lawyer's,an insistencewhich we
found had an increasinglyhollow ring to it as Webertakes on the role of partisanfor a
particularjuristictheoryin his accountof Lawin Economyand Society.
Weber'sconcept of law is unacceptablepreciselybecausehe wishes to argue for a
fundamentaldistinctionbetweensociologicaland legalpointsof view.We haveto recognise
that in a veryimportantsensethejurist'sconceptionof law is alreadysociological.By that
I mean that as a generalconceptit alreadyinvolvesan abstractionfrom a multiplicityof
concretecircumstancesand in its universalapplicabilityacrossthe boundariesof different
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cultures expresses a highly abstract notion. While the practising lawyer, barristeror 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 irreducibilityof law and in its possession of the same characteristics 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 interpretationof rules, so in his account of law it is possible for the interpretation of a
27 Ibid.,p. Ivii.
28 Ibid.

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rule to have the determinacyof pure logic. Repeatedlyhe uses the phrase"the logical
of meaning".Butmeaningis not interpretedby logic. Meaningis understood
interpretation
throughexperience.Logicrefersto the structureof an argument,not to the meaningof its
of rulesdependson sharedunderstandterms.The "correct"or "objective"interpretation
not
on
and
ings
logic.
It is the degreeof deductivelogic involvedin the Germanview of Romanlaw which
impressesWeberand leadshim to see it as the apogeeof rationality,that gaplesssystemof
propositionsin whichit is possibleto derivea decisionin everyconcretelegalcaseby means
of legallogic. This kind of "rationality"is properlycalled"rationalism".For the abilityto
includethe wholeworldwithina singleset of propositionsis not of itselfrational.The fact,
for instance,that I may assertthat all that happensin the worldis an expressionof either
of
the "yin" or the "yang"factor does not, in spite of the promisingcomprehensiveness
my belief,guaranteerationality.
Weberadheresto a form of "pan-logism"whichhas its extremeform in the ideas of
Hegel, but characterizesmuch of Germanthought.In Weber'sdismissiveattitudeto the
empiricismof Englishlaw and his rejectionof the idea of reasonablenessbecauseof its
technicalimprecisionwe can see the expressionof one of the majorculturalcleavagesin
the Westernworld.It is a cleavagerepresentedveryobviouslyin differentsystemsof legal
thought and practice,but also in philosophy,administrationand science and is still a
significantfactor in the lack of mutual understandingbetween the Anglo-Saxonand
Germanicworlds.
When the extraordinaryand irrationalfascinationwith formallogic is recognizedin
of the developWeber'swork,thenthe sourceof so manyof his paradoxicalinterpretations
of the parties
that
the
intentions
mentof modemlaw becomesapparent.Onlyif one believes
modem
the
most
to
it
consider
is
to a contractare irrelevantto formallegal logic
possible
of
the
necessarypower formal
developmentsof commerciallaw as somehowa breakwith
the
in
law. Only on this basis is it possibleto reject principle participationof juriesin the
legal process.Only in this way is it possibleto see juristicprecisionsufferingthroughthe
"intrusion"of sociological,economicor ethicalargument.
In an importantsenseWeber'semphasison formalrationalitytrivializesthe functions
of law in society.As is apparentby his own historicalanalysisit is difficultto show any
clear relationbetweenformal law and the moderneconomy. Very differentlegal forms
providethe frameworkfor capitalisticdevelopment.Propositionsof any contentwhatsoever can be part of a legal system.Law has no substance,it becomesmereform. Lawyers
of law for the sake of law. For law has no content,it is
becomethe narrowrepresentatives
and is enforced.
assent
which
commands
that
merely
The paradox,however,whichstemsfromthis is that wherethereareconflictsof laws,
wherefull systematizationof law is not achieved(and this mustinvariablybe the case, for
even Weberconcedesthat this conceptionof the gapless,coherentsystemof legal propotherecan be no appealto legalprinciples.
sitionsis only an ideal),underthesecircumstances
The only criterialeft are economic,ethical or sociological.If these are rejectedone is
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handedoverto the arbitrarydecisionof the powerholder,for thereare no legalcriteriato


determinewhat shouldor shouldnot be enforced.Thoseideasof justice,the compromises
which are reflectedin them in which the empiricalEnglishdabble,are to be rejectedas
impreciseand outsidethe lawyer'stechnicalprovince.
Law is madeinherentlyconservativeby Weber'streatmentof it, for any changein the
realconditionsof social life whichinvolvesa changein the meaningof legal conceptshas
to be viewedas an intrusionof substantiveconditionsandthusa necessarydeclineof formal
legal rationality.On this basis the fastersocietieschangethe more we should expect the
intrusionof substantiveconsiderationsand the more lawyersshould be involvedin continuouslychangingtheir ideas. Not on Weber'saccount.So deeplyconvincedis he that
formallegal rationalityhas the same intimateconnectionwith the rationalizationof the
modernworldas modernnaturalscience,that the logic of the lawyeris the equivalentof
precisionin naturalscience,that he discountsthe obviousgrowingweightof substantive
considerationsin modernlaw.
Webermistakesthe searchfor non-contradictoriness
in legal argumentfor the strict
entailmentsof syllogisticreasoning.For him the experientialbasis of law gives way to
logicalproof. Legalargumentceasesto be a matterof convincingothersof the good sense
of a trainof reasoningaboutrulesandfactsandbecomesan arcaneset of verbaltechniques.
No wonderthat the laymanon this view becomesinevitablymoreremotefrom law.
Weber'sviewof law makesit the propertyof professionalexperts.So too does his view
of social science.To each professionalgroup its own expertise.His legalpositivismand
bourgeoismaterialismare the ideology of the technicalexpert,an influentialexpression
or whateverwe care to label the firstthree-quarters
of technocracy,or managerialism,
of
this centuryin the Westernworld. Unless there is a more generalrecognitionthat professionalactivityinvolvesmuchmore than scienceand logic, that for instancelawyersin
the courseof theirworkimplementvaluesof all kinds,someessential,othersnot essential
to the idea of law, we shallstay firmlywithinthe boundsof technocraticsociety.
Postscript

There are some generalpoints which underliethe discussionhere of Max Weber's


sociologyof law whichit may help to makeexplicitly.Theyformpartof view of sociallife
and of socialscience,henceof law too, whichdiffersverymuchfromMax Weber's.I think
they are taken for grantedin many modem sociologicalstudies of law and show why
Weber'sparadigmhas had little influenceon recentdevelopmentin the sociologyof law
and cannotbe expectedto havein futureeither.
PerhapsWeber'smajorinfluencehas beenin artificiallyincreasingthe contrastbetween
sociologyand law and in propagatingthe beliefin inherentconflictbetweenlawyersand
sociologists.Actuallythe degreeof conflictwhichmay exist betweenlawyersand sociologists stemsas muchfrom the similaritybetweentheiractivitiesas fromdifferences,just as
the conflictof conservativesand radicalsstemsfroma commoninterestin politics.
Thesegeneralpoints,an alternativeparadigmif one likes,are:
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1. Two of the most importantcomponentsof the continuingprocessof social constructionwhich we call society are the descriptiveaccounts of it (everydaysociology)
that membershave and the valuesthey follow.
2. Sociologistsare also membersof society! Qua sociologiststhey have a part in
constructingit.
3. Sociologistshave to understand(among other things)the accountsand values of
othersand in writingtheiraccountsmakejudgmentsof valuelike anyoneelse. They have
a particularconcernfor a valuecalled"objectivity".
4. Lawyersare membersof society too! Hence they have a part in constructingit,
qualawyers.
5. Like anyone else lawyersconstructsociety throughvaluesand accounts.They are
particularlyconcernedin a valuecalled "justice".
6. In talkingabout law lawyersare alreadyinvolvedin everydaysociologyand often
in academicsociology.
it.
7. In talkingabout law sociologistsare involvedin understanding
to
to
be
left
8. Law is too important
lawyers.
9. Societyis too importantto be left to sociologists.
The list could be extendedmuchfurtherof course.Weberwouldhave disagreedwith
just about everypoint as set out here.It is on this basisthat discoursebetweensociologists
and lawyers begins. It provides a quite adequatelyfertile ground for flourishingdisagreement.
MARTIN ALBROW*

* Readerin Sociology,UniversityCollege,Cardiff.
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