Albrow_Legal Positivism and Bourgeois Materialism Max Weber's View of the Sociology

8/10/2019 Albrow_Legal Positivism and Bourgeois Materialism Max Weber's View of the Sociology

1/19

ardiff University

Legal Positivism and Bourgeois Materialism: Max Weber's View of the Sociology of LawAuthor(s): Martin AlbrowSource: British Journal of Law and Society, Vol. 2, No. 1 (Summer, 1975), pp. 14-31Published by: Wileyon behalf of Cardiff University

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2/19

LEGAL

POSITIVISM AND

BOURGEOIS

MATERIALISM:

MAX

WEBER'S

VIEW

OF

THE

SOCIOLOGY

OF LAW

My

intention

s to

give

an

accountof

Max

Weber's

ociology

of

law but

with

special

reference

o

problems

of

basic

method.1

Much of

Max

Weber's

ontribution

o

sociology

has

been

methodological

n

nature

and

whathe

has

written

on

law

is

no

exception

to

this.

Underlying is accountof thedevelopment f modern awwithits lengthyexcursionsnto

the

history

of

legal

thought

and its

many

analyses

of

the

interplay

f

economic

and

social

factorswith the

professional

nterests

nd

outlook

of

lawyers,

an

account

of both

dazzling

erudition

and

impenetrable

tyle,

there

s

a

general

heory

of

the

nature

and

development

of law. This

theory

stems

from Weber'sbasic

assumptions

bout

the methods

of social

science

generally.

In

particular

Weber's

account of

the

relationsbetween

aw

and

sociology

and his

analysis

of

the

development

f

law

are not

accidentally

inked.

His assertions hat the

legal

point

of

view is directed

o

determining

he

validity

of

law

while he

sociologist

s interested

in what

happens

when

people

act

in

society

with

aw in

mind,

hat

thesetwo

points

of view

are

quite

distinct

with

no

overlap,

and

his beliefthat

legal

thought

has

its

own

logic

which

has been

expressed

n the

general

historical

rend o the

increasing

ormal

rationality

f

law

are

part

of a

single

viewof the

world,

albeita

complex

and

sophisticated

iew

which

defies

the

temerity

of

any

commentator

who

seeks,

as I

do,

to

give

it

a

label.

In

showing

how

this

view of the

world

is

expressed

n

his

sociology

of law I

hope

simultaneously

o

indicate

its

scope

and limitations or

us

in

any

programme

or

the

sociology

of

law in

contemporary

onditions.For

in

spite

of its

prodigious

cholarship

Weber's

ociology

of

law has

commanded

elatively

ittle nfluence nd

this

has

moreto

do

with the

conceptual

ramework nd ntellectual utlookwhich

are

timebound

han with the

impenetrabilityf the style.

There

s a

paradox

n this. Weber

was trainedand

practised

or

a

time

as a

lawyer.

His

dissertation

was on

law

in relation

o mediaeval

rading

companies.

His

interest n and

respect

or

the

law were

sustained

hroughout

his life.

He was

a

frequent

and

successful

litigant.

t

was

perhaps

he

sectorof social

ife he knewbest.

Why

should

t

be that

his work

on

law

hashad so much ess influence

n

subsequent enerations

hanhisworkon

politics,

religion,

ociological heory

and the

philosophy

f socialscience?

Perhaps

quallyneglected

have

been

his ideas

in

economics,

n which

subject

he held his

chair

The

quick

answer

s

that

it

was

precisely

n

those

areas hat

he

was

most

a

prisoner

of

the dominant heoriesof his time.

They

provide

he

uncritically

eld

assumptions

f this

most

criticalof theorists.He

accepts

he

paradigms

f the

legal

and economic cience

of

his

time

and

his

originality

n

the other

spheres

stems

very

much

from the

application

of

a

special

amalgam

of thesetwo forms of

thought

to

subjects

beyond

their normal

scope.

Weber

called himself

bourgeois.

He was

proud

to

accept

that label. Law and

economics

1 This

paper

s based

on

a

talk

given

to

the Seminar

on the

Sociology

of

Law

at

the

Centre or

Socio-Legal

Studies,

Oxford,

on the 31

January

1975.

I

am

grateful

to the

participants

or the

points

raised

in

discussion.

14

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3/19

are the

natural nstruments f the

bourgeoisie.

For him

they

are

constructed ut

of

a

pure

and timeless

rationality.

But

it is

precisely

n

eras

of

rapid

social

and

technical

hange

hat

they

have to

be

continually

efashioned.

oday

we

rightly

have ittle

trust n what

appeared

to

be timeless

principles

t

the

beginning

f the twentieth

entury.

Allusion o

Weber'sown

image

of himself

brings

out

a

contextual

point

which

s

vital

to

the

understanding

f his

sociological

analysis

of

law.

A

major

arget

or Weber

hroughout

his life was the historicalmaterialism f Karl Marx. Justas in his accountof the riseof

capitalism

e

attributed

o

the

religious

deas

of Protestantism

n

mportant

nd

ndependent

causal

position,

so

he refuses o

see law as

any

mere

reflection f

the

material nterests

of

the

capitalist

class.

Indeedhis

writing

on the

sociology

of

law

is in

the contextof

a

much

broader

and more

ambitious

account

of

the

general

relationsof the

economy

to

other

spheres

f

social

ife

which ees he

growth

f

capitalism

s

one

special

acet

of the

rationaliza-

tion of

modern

society

in

all

respects.

In

this

general

process

religion,

aw,

economics,

science,

politics

all

have

both

ndependent

nd

dependent

ositions

n relation o

each

other

and none

has

priority.

It

is

a

multi-factor

pproach

o societal

analysis

where

sociology

emergesvery

much

as

the

discipline

which

traces the

bonds

betweenthese institutional

areas.

Weberian

ociology

s

therefore

ery

muchthe

response

o and

bourgeois

quivalent

of Marxism

n

both

scope

and

generality.

If Marx

s the

major

antecedent

f Weber's

nterest

n the

sociology

of

law,

it

is

in

a

very

general

and

unspecified

orm.

Weber

was not

interested

n Marx's

workin

any very

scholarlyway

and

to some extent

his

attackwas

on

vulgar

Marxism

n the broadest

ense.

In

the

scholarly

ontext

here

s

a

minor

antecedent

whichdeserves

mention.

n

1894Rudolf

Stammler

had

published

Wirtschaft

undRecht

nach

der

materialistischen

Geschichtsauffassung

(Economy

and

Law

according

o

the Materialist

Conception

f

History).

He

attempted

o

show

on

the

basis

of

epistemological

onsiderations

hat

it was

impossible

o view the

economyasfundamentalo society.Through nalysingheidea of social ife he cameto the

conclusion

hat

its essence

wasin

activity

n accordance

with common

rules.

Theserules

he

identified

s law

and

he saw

law

as both constitutive

f and

determining

ocial

life.

In

1907

Weberwrote

a substantial efutation

of

Stammler

n

a

review

of the

second

edition

of

his

book.2

This contains

an

analysis

of whatis involved

n

studying

ules

of

any

kind

and

in

particular

makes

distinctions

between

the evaluation,

interpretation

nd

empirical

tudy

of the effects

of rules.

He usesthe

example

of

a

game

of cards

to

illustrate

his

argument

nd

proceeds

o the

point

that,

complex

hough

he

analysis

of a

game

of

cards

is,

the

case

of

law

is

much

more

complicated

ecause,

unlike

a

game

of

cards,

he

reality

or

which aw is relevants not totallydefinedby law. As he said whenstudying he place

of

Protestantism

n

the

rise

of

capitalism

he was

intentnot

to

replace

a one-sidedversion

of

history

with one

that

was

equally

one-sided.

n

avoiding

Marx's

economicdeterminism

e

wished

also

to avoid Stammler's

egal

idealism.

I

mention

this

still untranslated

aper

of Weber'sbecause

t

provides

the

methodo-

logical

foundations

or his

sociology

of lawand because

t is

neglected

by

Max

Rheinstein

2

"R.

Stammler's

Ueberwindung

er materialistischen

Geschichts

auffassung",

n Max

Weber,

Gesammelte

Aufsdtze

zur

Wissenschaftslehre

1968

J.

C.

B. Mohr

(Paul

Siebeck),

Tubingen)

291-359.

15



4/19


5/19

The

distinctionbetween

he two

approaches

o

law

leads Weber

nto

a

consideration

of

the

concept

of

law. It

is

already

clear

n

his

essay

on

Stammler

hat

Weber

regards

he

methodological

roblems

of

the

study

of law

as

being

n

principle

no

different

rom

those

in

the

study

of

any

set

of

rules,

be

they

conventionsor

merely

he

rules

of a

game

of

cards.

Law

in

this

respect

has

no

special

dignity.

This

position

is

elaborated

n

Law

in

Economy

and

Society.

In

all

determinate ocial

groups

there are rules.

Sometimes hese

amount

to

merecustom,wherenobody reallythinkswhat he is doinghas any realimportance nd

there

s

no

sense

of

obligation

nvolved

n

following

the rule.

But more

important

s

the

fact that

in

social

groups

he

actors

regularly

ave the

idea

of a

legitimate

rder,

or set

of

rules

which

nvolves

a

degree

of

obligation.

Though

his

set of

rules

may

not be

respected

by

everyone

and

indeed

some

may

flout

it

or

use

it

in a

cynical

way,

nonetheless

t is

the

fact that to

a

substantial umber

t

has

a

binding

orcewhich

gives

t an

importance

n both

social

life and

sociological

analysis.

Such

a

social

order

can be

called

convention,

says

Weber,

f

it

is sustained

merelyby

approval

or

disapproval.

t

"will

be called

law if

it

is

externally

uaranteed

y

the

probability

hat coercion

physical

or

psychological),

o

bring

about

conformity

or

avenge

violation,

will be

applied

by

a

staff

of

people holding

them-

selvesspeciallyready or the purpose."s

We

may

ask:

"Is this Weber he

lawyer's

oncept

of

law,

or Weber

he

sociologist's?"

This

s

not

easy

to

answer.

Rheinstein

oints

out the

similarity

etween

Weber's dea

of law

and that

of

Austin's

definition

of law as the

command

of

the

sovereign.

He

also notes

the

connection

between

Weber's

iews

and

those

of

Kelsenwho

developed

pure

heory

of

law,

devoid

of

ethics,

a

doctrine

of

legal positivism.

n other

words

there

s

nothing

n

Weber's

formulation

which

automatically

ules

t out

of consideration

s

a

concept

of

law for

juris-

prudence.

Moreover

t

might

seem

to be

implied

by

Weber's

emphasis

on the

inherent

differences

n

the

sociologist's

and

lawyer'spoints

of view that

they

would

necessarily

e

pointsof view on the samephenomenon.Afterall aretheynot the sameset of ruleswhich

the

academic

awyer

tests

for

their

coherence

and

the

sociologist

for their

effectson

the

real

world?

But

at

other

points

t seems

hat Weber

s

advocating

concept

of law

which s

peculiar

to the

sociologist.

As he

says:

"In

our context

he

concept

of law

will be defined

as an

order

which

depends

on an enforcement

taff.

In

otherconnections

different efinitions

may

well

be

appropriate."6

n

other

words,

you

choose

your

concept

according

o the

intellectual

purpose

you

have.

Weber

adds

that

the

legal

terminologymay

be

quite

different.

Thus

this

definition,

he

notes,

excludes

nternational

aw as

a form

of law becuase

t has no

supra-

national

enforcement

agency.

Yet,

again,

there

is no reason

why

this

point

may

not

be

madebyan academicawyerand Weberagrees hat t has beentimeandagain.Thesection

which

Rheinstein

heads with

"The

Sociological

Concept

of Law" overstates

Weber's

commitment

o the

notion

of

a

sociological

concept,

for

the

German

edition entitles

his

section:

"The

juristic

and

sociological

concept

and

meaning

of the

legal

order"

and

the

discussion

which

follows

is

largely

aboutthe

respective

oints

of

view.7

5

Rheinstein,p.

cit.,

p.

5.

6

Ibid.,

p.

6.

7

Ibid., p.

11.

Max

Weber,

Wirtschaft

und

Gesellschaft

1956

J. C. B. Mohr

(Paul

Siebeck),Tubingen)

181.

17



6/19

Whateverhe balance

t

is

apparent

hatthe two

issues,

he

disciplinary

iewpoint

upon

the

subject

matterand the

constitutionof

that

subject

matter,

are

closely

intertwined

or

Weber

so that

at

one

point

at

least

they

seem

to

merge.

In

his

essay

on

Stammler

he

distinguished

etween

the

ideal

and

empirical

validity

of a

legal

proposition.

The

ideal

validity

of

a

legalproposition

meant hat

the

jurist

who

sought

"juristic

ruth"

would

find

a

bindingrelationship

etween

certain

concepts

and

he

would be

obliged

ntellectually

o

posit that suchand such a rule shouldbe accepted.But the empirical alidityof a legal

proposition

imply

consisted n

the

chance hat

it

had a

demonstrable

ffect

n the

world.

In this sense

"Empirical

alidity

s

ultimately

s

much

a

feature

of

'juristic

rror'

as

'juristic

truth'."8

Weber

lludes o

this

notionof

empirical

alidity

n

another

definition e

offers:

"'Law',

as

understood

by

us,

is

simply

an

'order

system'

endowed

with

certain

pecific

guarantees

of

the

probability

f

its

empirical

alidity".9

n

this

case we

clearly

have

a

definition

which

is

dominated

by

what Weberconsiders

o

be

the

methodological

ecessities

of

empirical

science.

But

we

are

thereby

eft

in

considerable ifficulties

or it is clear

that what

the

sociologistconsidersas lawmayturnout to be quitedifferent romwhatthejuristdoes.

Can

the

sociologist

consider

as law

a

system

of rules from

whichthe

lawyer

would

with-

hold the

term?

The

methodological

enets

of

the

sociologist

now

appear

o determine

what

can be called

aw.

Under

hesecircumstances

hat

happens

o the

point

of

view

of

the

actor

be

he

lawyer, urist,

udge,

egislator,

itigant

or

simply

citizen?What

happens

o the famous

insistence

on

the

subjectivemeaning

of

action

which

s

so often

associated

with

Max

Weber

and which

s

exemplified

n

this self-same ontext

by

the

view

he takes

of ethics?

Whether

or

not a normative dea

which is

actually

held

by

human

beings belongs

to

the realm

of

ethics,

or,

in

other

words,

whether

or not

a

given

norm is

one of 'mere'

aw or convention must

be

decided

by

the

sociologistexclusively

n

accordance

with that notion

of

the 'ethical'whichis

actually

heldbythepeoplenquestion.10

If

the

"people

n

question"

re

the

court

of

appeal

n

the case

of

ethics,

why

are

they

not in

the

case

of

law?

This

is

a

question

o

which

we shall have

to return.

When

Weber

eaves he

topic

of law n

general

nd

proceeds

o a discussion

f

the main

substantive

ields

of

law,

it is

apparent

hat

sociological

viewsof law

must have a

more

intimate

onceptual

elationship

ith

egal

views

han

Weber's

oncern

o establish

ociology

as

an

empirical

discipline

might

suggest.

The first

major

distinction

he

considers

s

that

between

public

and

private

aw,

of

great

mportance

n German

egal

theory.

Immediately

he

adopts

what

he calls the

"sociological

est"anddefines

public

aw"as the total

body

of

those normswhichregulate he activitiesof the state as such"and privatelaw as "the

totality,

not

of

those

norms

which relate

to the state as

such,

but

of

those

norms

which,

while

ssuing

romthe

state,

regulate

onduct

otherthan

state

activity."

He

goes

on:

"This

kind

of

definition

s rather

non-technical,

nd,

therefore,

difficult

o

apply.

But it

seems

nevertheless

o

constitute he

basis

of almostall other

attempted

distinctions

of the

two

8

Max

Weber, Wissenschaftslehre

p.

cit.,

p.

347.

9

Rheinstein,op.

cit.,

p.

9.

to

Op.

cit.,

p.

8.

18



7/19

great

branches

f the

law."11

Here

then the

non-juristic oncept

s

not

simply

a

specialized

viewpoint

rom

empirical

cience,

it

apparently

xpresses

something awyers

attempt

to

conceptualize

ut

to

which

they

can

only

approximate.Legal

theories and

practices

hen

appear

as

a

variable

surface

expression

of

deepercategories

of social

action and

types

of social

structure

which

the

sociologist

reveals,or,

to

use another

simile,

as the

dialect

forms

of a

more

universal

anguage.

Inhis

rejection

f theeconomicdeterminism f Marxand the

legal

dealism f

Stammler

Weber

has

come

close

to a

position

which

one

could call

sociological

determinism.

The

content

of

legal

theories s

relatively

unimportant,

what

matters

s

political

organization,

the real institutionsof

political society.

These are

the infra-structure. ut in

emphasising

this

social

structural

basis,

Weber s

simultaneously

roviding

a

general

account of

legal

thinking.

f

we recallthe

distinction

he

drew

n

the

essay

on

Stammler,

etween

he

social

scientist's

nterest

n

law

and

the

jurist's,

a

key

aspect

of

it

was the

emphasis

and commit-

ment

by

the

jurist

to

normsof

pure

rationality.

ustas the

sociologist

was

interested

imply

in

the

fact

that norms

wereor werenot

observed,

o the

lawyer

was

simply

nterested

n

the

technical orrectness f argument.

It

is

not

therefore

urprising

hat

Weber

moves

directly

rom

considering

he

types

of

political

and

social

arrangements nderlying

he

specialized

ields

of

law

to

a

consideration

of

the formal

structure

nd

techniques

f

legal thought.

think

Rheinstein

s

right

o

make

a

separate

chapter

headed

"Categories

f

Legal Thought"

out

of

a

section

which

in

the

German

dition

runs

straight

n from

the

consideration

f

substantiveields

of

law.12

n

the

brief

space

of four

sides

we

get

the

central

deas

underlying

Weber'swhole

approach

o law.

The

various

schools

of

legal thought

can

be

seen

as

having developed

and

become

differentiated rom

each

other

according

to the

type

of

political

organization

and

the

"internal

structure

of

legal

thought".

Weber then

addresses

himself to

the

problem

of

advancinga set of adequatecategories or the analysisof the structure f legal thought.

Paradoxes

are

already

beginning

o

multiply.

What

was to have been an

empirical

study

of law

in

the

world

begins

to

be an

analysis

of

legal

theories.

Weber'sconcern

o

advance

a

sociological

view of

law

turnsout

to be

an

attempt

o advance

a

theory

of law

which

depends

on

identifying

he

common

elements

n

any system

of

legal

thought

and

showing

how

they

have

developed

hrough

he

history

of

law,

and it is with this that the

rest

of his

sociology

of

law

is

concerned,

with

a

wealth

of

historical

llustration nd con-

ceptual

refinement,

ut

clearly

directed o

confronting

urists'

heories

of law. So it

is that

Weber's

"empirical"

tudy

of law

begins

o revolve

around

whathe heldto be the heartof

the dogmatic urist'sconcern n law, the most idealand leastempiricalaspectof all, the

nature

of

legal

rationality.

This

is

the central

notion in the Weberianaccount of law in

economy

and

society,

as

is

the

concept

of

rationality

he centralnotion in the total

corpus

of Weber's

work.

The

idea of

rationality

an

be

applied

o law

in several

ways

according

o Weber.As far

as

a

body

of law as

a whole

is

concerned

t amounts

essentially

o

systemization,

he

con-

11

Ibid.,

p.

41.

12

Ibid.,

pp.

61-4.

19



8/19

struction

of a

gapless

system

of

rules. In

the

actual

making

of law

it

involves

a

basic

distinction

between

ormaland

substantive

ationality.

Formal

rationality

an

simply

be

a

matterof

attending

o

certain

procedural

ormulae,

ymbolic

acts,

signature

nd

so

on,

but

more

mportantly

n

the

modern

world

nvolves he

formation f

legalconcepts

of a

highly

abstract

nature he

meaning

of

which s

analysed

and

madeclear

in

being applied

to

any

concrete

et of

facts.

Substantive

ationality

n

the otherhand nvolves he

decision

of

legal

problemsby referenceo ethical mperatives, ormsof a utilitarian r expedientialkind.

This form of

rationality

n

law

is

always

n

tension

with the

formal

kindof

rationality.

t

is

this latter

which is

peculiarly

egal.

"The

peculiarly

professional egalistic,

and

abstract

approach

o the

law

in

the modern

ense s

possibleonly

in

the measure hat law

is

formal

in

character."

hus

"dogmatic

egal

science"

becomesboth the

source

of the

independence

of

the

legal

profession

and a

measure f

the

empirical

evelopment

f law:

Present-day

egal

science,

at

least

in

those

forms

whichhave

achieved

he

highest

measure

of

methodological

nd

ogical

ationality,

.e.

thosewhich

have

been

produced

hrough

he

legal

science

of

the

Pandectists'

ivil

Law,

proceeds

rom he

following

ive

postulates:

iz.

first,

hat

every

oncrete

legal

decision

be

the

'application'

f an

abstract

egal

proposition

o

a

concrete fact

situation';

second, hat it mustbe possiblen everyconcrete ase to derive he decision romabstractegal

propositions

y

means

of

legal

logic;

third,

hat the

law must

actually

or

virtually

onstitute

'gapless'

ystem

f

legalpropositions,

r

must,

at

least,

be treated s

if

it

were uch

a

gapless

ystem;

fourth,

hat whatever

annotbe

'construed'

egally

n

rational erms

s

also

legally

rrelevant;

nd

fifth,

hat

every

ocial

actionof human

beings

must

always

be

visualized s either

an

'application'

or

'execution'

f

legal

propositions,

r

as

an

'infringement'

hereof.13

It

is

to

the

development

f

these

formal

qualities

of

law

that

Weber

addresses

himself

n

the

rest

of

his

sociology

of

law.

Weber's Account

of

the

Development

of

Modern

Law

Weber's

historicalaccount

of

law

consists

of

relatively

ew themes

woven

together

o

giveaveryrich exture.Bare ummaryandoscant ustice o thisrichness ut bare ummary

is

necessary

because

oo

easily

is

the

reader

overwhelmed

y

the eruditionand

repeated

flashes

of

insight.

The

themes nclude he

ways

n whichnew law

is

generated,

he relation

between

aw and the

economy,

n

particular

he

way

law

facilitates conomic

development,

the

weight

of

economic

and

political

factors in

determining

he

balance

of formal

and

substantive

ationality

n

law,

the intellectual

utlook and interests

of

lawyers

as a

factor

in

legal

development,

ut

above

all

the tension

between

ormal

and

substantive

ationality

as an

ever

present

element.

Right

away

t must

be

said

thatthere

s

clearly

an

intimate onnection

betweenWeber's

methodologicalnddefinitional pproacho lawwhichwehavealreadydiscussed ndthis

account

of

the tension

between

ormal

and substantive

ationality.

His

sociological

posi-

tivism n

respect

of

the

concept

of law excludes he

possibility

f

any

kind of consideration

of the values

which

jurists

normally

discuss.

In

particular

t

resolutely

and

deliberately

avoids

any

discussionof

justice

or

any

consideration

which

might distinguish

between

enforced

odes

of

rules

according

o the

values

which

hey express. This

s the

counterpart

in

anothercontext of his

determination

o define

the

State

in terms

which exclude

any

13

Ibid.,

p.

64.

20



9/19


10/19

ideas

available

to the

legal experts

of

the

time.15While

bourgeoisgroups

demand

a

calculableaw and thusaredecisive or a

general

rend

o

formal

aw,

they

have

no

influence

on the

development

f the most

highly

rationalizedorms."This

ogical

systematization

f

the law

has been the

consequence

f

the intrinsic ntellectual eeds

of

the

legal

theorists

and their

disciples,

he

doctors,

.e.

of a

typical

aristocracy

f

legal literati."16

or

Weber

the test

case for the

independence

f

legal

structure

rom economic

nterests

s

very

much

England.The historyof the development f the legal structure f organizationss very

different n

England

rom that on

the

continent

and

yet

capitalistdevelopment

ook

place

in

both.17

Actually

Weber's reatment

f

the

English

situationrevealsdifficulties

n his

entire

discussion

of

the

relations

of

law

and

the

economy.

In

any

case

for him

English

aw

was

inferior

o the

continental

n

its lower

degree

of

rationalization.He

sees it as

empirical,

complicated

nd

expensive

and "it

may

indeedbe

said

that

England

achieved

apitalistic

supremacy mong

the

nations

not

because

of,

but rather

n

spite

of,

its

judicial

system."18

But at the same time

Weber

cannot

avoid

commenting

n

the class basis

of

British

aw.

He seesit as a blatantcaseof one law for the rich and onefor thepoor.Onlythe rich can

afford

itigation

and

the

poor

put up

with

the

"Khadi-justice"

f

the

justices

of the

peace.

This denial

of

justice

was

in

close

conformity

with the interests

of the

propertied, specially

the

capitalistic,

classes.

But

such

a dual

judicial

policy

of formal

adjudication

of

disputes

within the

upper

class,

combined

with

arbitrariness

r de

facto denegation

of

justice

for the

economically

weak

is not

always possible.19

Weber'sattitude

o

England

s

worth

a

paper

n

itself,

but

what

must

nterestus

here

is that Weber's

own

judgment

on what

benefits

or does not benefit

which class

appears

indeterminate

nd uncertain.

t

is

difficult o avoid

the

conclusion

hat,

evenon his

account,

the

structure

f

legal thought

s

veryepiphenomenal.

conomic

development

akes

place

regardless.

The

bourgeoisie

always gets

the law

to suit

it.

By concentrating

n

law as

technique

he makes

t

appear

mportant

or the

independence

nd

prosperity

f those

who

live from

the law and

nothing

more.

Nothing

could be

more

indicative

of

the

profound

antinomies

nd

paradoxes

of his

view

of

the relation

of formal

and

substantive onsiderations

n

law

than

his

discussionof

contract.

For

Weber

egal

rights

are

the

"reflex"

f

legal

regulation

nd

rights

are a

source

of

power.

In

so far

as

law

creates

rights,

t

givespower

o

particular

ndividualswhich

they

can

then

exploit.

Certain

tructures

f

rights

can thereforeavour he

emergence

f

certain

kinds of

economic

relation.

In the modem world

the extent

of contractual

reedom

s

so

great that one can designatemodernsocietyas of the contractual ype. Whatever he

individual

or

corporate

group)

sees

as in his

interests,

economic or

otherwise,

he

can

organize

on

the basis

of

a contractual

elationship

with

otherswhich he law will

recognize

15

Ibid.,

p.

131.

16

Ibid.,

p.

278.

17

Ibid.,

pp.

176-188.

18

Ibid.,

p.

231.

19

Ibid.,

p.

230.

22



11/19

and

enforce

f

need

be.

The

result

s

that

market

orces of the

economy

have

a

scope

for

development

eyond

anything

xperienced

efore.This

legal

"freedom" ecomes

he basis

of

economic

servitude

or wide

strata

of

society.

On such

themesWeber's

ealismamounts

o

a

critique

of

contemporary

ociety

owing

muchto

and

quite

as

trenchant s

Marx's. t wouldbe

quitewrong

o

imagine

hat

because

Weber

accepts

the

bourgeois egal

and

economic

science

of

his time

that this

translates

itself

into a

complacent

acceptance

f

the

status

quo.

On

the

contrary,

his

whole

analysis

of rationalization

s

a

despairing

ndictment

f

the fate of

both

bourgeoisie

nd

proletariat.

Now

this

might

appear

o be

a decisive

argument

n

favour

of

seeing

he

development

of

legal

technique

as

a

major

actor

n

economic

development,

nd

indeed

this

appears

o

be

why

Weber

ntroduces

his

theme.

But

towards

he end

of Law

in

Economy

nd

Society

it

appears

hat

the

development

f modern

commercial

aw

in

particular

as

quite

another

significance,

or

it

gives very

full

scope

to

industrial

and

commercial

pressure

groups

to

have

transactions efined

as

commercial ven

when

they

are not

conducted

by

merchants,

so

that out of

economic

expediency

commercial

meaning

may

be

imposed

on

what

was

not intended s such.20Alternatively,hereal ntentionsof theparties o a contractmaybe

taken nto

account

and this in Weber's

iew

s

equally

destructive

f

the formal character

of

law.

Thus:

In

the

sphere

f

private

aw the concern or a

party's

mental

attitudehas

quite generally

ntailed

evaluation

by

the

judge.

Good faith and fair

dealing'

or the

'good'

usage

of

trade

or,

in other

words,

ethical

ategories

avebecome he

test

of what the

parties

are entitled

o

mean

by

their

'intention'.

Yet,

the reference

o the

'good'

usage

of

trade

mplies

n

substance

he

recognition

f

such

attitudes

whichare

held

by

the

average

arty

oncerned ith

he

case, .e.,

a

general

nd

purely

business riterion

f an

essentially

actual

nature,

uch

as the

average xpectation

f the

parties

n a

given

ransaction.t

is thisstandard

hich

he

aw

has

consequently

o

accept.21

So it appears hat muchof the development f modern aw in relation o economic

affairs

can

only

derogate

from the

formality

of

law and

the

independence

f

judicial

decision.

"Logically

onsistent

ormal

egal thinking"

s

incompatible

with the "fact that

the

legally

relevant

agreements

and activities

of

private parties

are aimed

at

economic

results

and orientated

owards

conomically

etermined

xpectations

..

Lawyers'

aw

has

neverbeen

and never

will be

brought

nto

conformity

with

lay

expectation

unless t

totally

renounces

that formal

character which

is

immanent

in

it."22

As with

his

discussionof the

relation

of

the

economy

and

law

so Weber's

analysis

of

the

relationsof law

and

politics

is

focussed

on

the

tension

of

formal

and

substantive

rationality.ButhereWeber eesa moredirect nfluence f political actorsonthelaw,which

is

hardly

surprising

ince

his

definition

of

law contains that element

of

realism

which

emphasizes

coercion,

enforcement

gencies

and hence

political

power.

In

this sense

the

relations

of

law

and

politics

are

much

more

conceptual

han

empirical

nd

this means

hat

the

attempt

to

analyse

their relationsas two

separate

variables,

contingently

elated,

as

20

Ibid.,

pp.

302-3.

21

Ibid.,

p.

307.

22

Ibid.,

p.

308.

23



12/19

Weberdoes

with

aw

and

the

economy

s

less

possible.

Thus

Weber howshow the

develop-

ment

of much modem

law

involved

he

incorporation

f

separate egal

codes into

a

single

jurisdiction

hrough

he creationof

special

rights

and

that the

centralization

f

the

State

involves

such

an extension

of

legal

concepts.

But

here too

formally

rational

law

finds

its

independence

nd

clashes

with

both

political

xpedience

nd

the

attempt

o

regulate

tateaffairs

ccording

o

moral

or

economic

principles.ndeedWeber

develops

a

theory

which eesthe

lawyers

cquiring

n

independent

power

positionby

their

ability

o

becomedetached rom

he

competing

nterests

n a

plural

society.

The

patriarchal

monarchwould

find

that

in

using

juristic

experts

he

would have

handed

over his

capacity

to

organize

his

affairs

autonomously.

Formal

ustice

reduces

arbitrariness

nd

favours hose with economic

power

at

the

expense

of

those with

political

power.

The

enlightened

despots

of

the

eighteenth

entury

n

particular

ought

to

avoid

juristic

hair-splitting

nd

to avoid

the elaboration

of law

by

professional

urists.

The

PrussianGeneral

Code

of

1794

was

an

attempt

at

systematic

ationalism

f

a

substantively

rationalkind.But for

Weber his

code,

which

ndeed

urvived

nly

until

1896,

was

a failure.

Its

clarity

was obscured

by taking

"as

its

point

of

departure

ot formal

egalconcepts

but

the

practical

elations

of life."23

This

discussionof

the Prussian

Code

leads

Weber nto

an account

of

the FrenchCivil

Code and a

concluding

eneral

discussion

of the

conflicts

between ormaland

substantive

rationality

n

modern

egal thought.

It

is at this

point

that

one can

see

all

the more

clearly

that

Weber's

analysis

must be

seen as much

as

a

contribution

o

juristic

debate

as

to

a

sociology

of

law and it

becomes

quite

obvious

that

Weber

s

in

fact

espousing

a

particular

juristic

doctrine.

The

French

Code

attempts

o base

its

laws

on a

normative tandard

of

natural

aw.

The sources

of

natural

aw

doctrine

are

various,

temming

rom

Stoicismand

Christianity,

mediaeval

English

ideas

of

individual

rights,

and the

eighteenth

century

enlightenment.n Weber'sdefinition"Natural aw is the sum total of all those norms

which

are valid

independently

f,

and

superior

o,

any positive

aw and

which

owe their

dignity

not to

arbitrary

nactment

but,

on

the

contrary,provide

he

very

legitimation

or

the

binding

orce

of

positive

aw."24

Natural

aw

was often

expressed

n

very

formal

axioms

but

in

practice,

argues

Weber,

and

ndeed

necessarily,

atural

aw deas

nvolve

bringing

nto

the

discussion

f

law

problems

of

practicality

nd

usefulness.

t involves

he

English

oncept

of

reasonablenessather

han

rationality

f

logic

of

the

Roman

Law. Such

notions,

notes

Weber,

play

a

vital

part

in

all

socialist

movements.But nonetheless

e

considers hese

metajuristicustifications

f

law

to

be everywhere n the retreat. ntellectual cepticism nd the relativizationf moralshas

led

to

seeing

such

metaphysical

laims as

the mere

expression

of

compromises

between

conflictinggroups.

So

legal

positivism

has

advanced

rresistibly

nd the

legal

profession

becomes

a

conservative

orce

simply

concerned

o

preserve

he

law

of

the

moment from

either

proletarian

demands

or social

justice

or

patriarchal

welfare-statism.

n

this

con-

servatism

he

command

by

the

legal profession

of the technical

xpertise

of formal

legal

23

Ibid.,

pp.

280-1.

24

Ibid.,

p.

288.

24



13/19

rationality

s

its

greatpower

asset

and

also

its

intellectual

elight.

The

formal

expertise

of

the

lawyer

and the

conception

of

law as

a

gapless

omplex

of

norms,

actorswhich

originally

facilitated

he

reception

of

Roman

Civil

law,

had

given

to

the

legal profession

that

power

resourcewhich

transcended

nd

indeed

made

rrelevant he

substance

f

Roman

aw.

All kinds of

countervailing

endencies

o

the advanceof formalistic

egal

rationalism

might

exist

n the

modernworld.

Weber

gives

a

resum6

f

them.

We

have

already

mentioned

his viewof commercialaw.Anglo-Americandeaswith their owlevelof rationalism,rude

empiricism

nd relative

accessibility

o

the

layman

represent

n

exception.

The

jury

system

represents

form

of

"popular"

nd rrational

ustice.

Sometimes

urists

hemselves,

larmed

by

the technical

perfection

hey

attain,

advocate

he

introduction

f

substantive

onsidera-

tions

into

the

law

and

in

the

short term

at

least

make

of

law

something

morethan

a set

of

techniques.

They

react

against

being

"slot

machine"

awyers

nd advocate

udicial

creative-

ness25

s

they

believe

s

characteristic

f the

Anglo-American

ystem.

Weberallows

that

these

countervailing

endencies

have

strength

but

it

is

quite

clear

wherehe

feels

the future o

lie in

the

legal

profession.

"In

any

case,

the

juristic

precision

of

judicial opinions

will

be seriouslympaired

f

sociological, conomic,

or

ethical

argument

were to

take

the

place

of

legal

concepts",

". . .

it will

be

inevitable

that,

as a

result

of

technical

and economic

developments,

he

legal

ignorance

of the

layman

will

increase.

Inevitably

he

notion must

expand

hat the

law

is

a rational

echnical

apparatus,

which

s

continually

transformable

n

the

light

of

expediential

onsiderations

nd devoid of

all

sacredness

f

content."26

Legal

Positivism

nd

Bourgeois

Materialism

It

is

impossible

o

give

a

short

overall

characterization

f

Weber's

study

of law

in

society

except

by

seeing

t

as

an

account

aiming

at

the

same

evelof

generality

nd

answer-

ing

the

same

range

of

basic

problems

as the

Marxist

nterpretation

f

society.

It is then

a

total

paradigm

and a

substantial

ritique

wouldamountto a

major

study

at several evels

of

analysis.

As far as his

theory

of law is concerned

I would

suggest

calling

it

"legal

positivism".

But

as

a

general

account of

law in

society

perhaps

he best label would

be

"bourgeois

materialism".

For

this is

an

account

which

places

nterests

at

the

centre,

but insteadof the

polariza-

tion of

society

into the

two

great

camps

of

capitalists

and

proletariat

t dissolves

society

into a

number

of

conflicting

but

interdependent

nterests,

none

more

basic

than the

others

and with

different ources

of

power.

Among

these

interest

groups

awyers

appear

n

the

broadest

sense

as an

independent

roup

with

their

own

interests

and

motivations,

which

areas often ntellectual seconomic,and withtheirown sourcesof power,a command ver

legal

logic

and rational

techniques

which make their

specialized

kills

indispensable

n

economic

and

political

life.

Weber's

concept

of law then

underpins

he

independence

f

lawyers

as

an interest

group,

contributes

o

a

vision

of

society

as

a

plurality

of

competing

groups

and

is

part

of an

empirical

multiple-factor

methodology

of social science.

It is

also

part

of

a

general

nterpretation

f

history.

25

Ibid.,

p.

309.

26

Ibid.,

pp.

320-21.

25



14/19

Just as

with Marx

it

is

possible

to wonder

at the

innumerable

incisive

analyses

and

yet

find

the total

paradigm

defective,

so

it

is

with

Weber.

I

find

myself

parting

with

Weber

at

so

many

specific

points

that

I

am

bound

to

admit a

systematic

divergence

from

him which

can

only

suggest

a

different

view

of

the world

in

general

and

of

social science

in

particular.

Without

in

any

sense

attempting

a

"general

refutation"

of

Weber,

which is

quite

beyond

the

scope

of this

paper,

I

would like

to draw

attention

to

a

variety

of

points

where

it is

possible to come to quite differentpositions from those that Weberadopted. Most of these

points

have

already

been

signposted

in

the

analysis

above.

Let

us

consider

first

the two

versions of the

relations

of law and

sociology

in Max

Weber,

the

early

one

in

the

essay

on

Stammler

where he

suggests

it is

the

function

of the

jurist

to

see

whether

the actual

behaviour measure

up

to

ideal

norms,

and the later one

in

his

sociology

of

law

where he

emphasizes

the construction

of a

general

system

of

legal

propositions.

In

the

first case the

jurist

is

using

a

value

standard

but

he

is

measuring

the

real world

against

it. In

the

second he

clearly

has moved

to

a

more abstract

plane

of

activity.

We can

only guess

at

the

reasons

Weber

had

for

this shift

but

its

functions

within

his

thought

are

clear.

In

the

first

instance

the

jurist

has a

ratherclose relation

with

the

real

world.

More-

over

it

stimulates

the

questions

"Does

not

the

jurist

share

something

of

empirical

science

here?;

Cannot

the

jurist

be

perfectly

objective

in his

analysis

of

the behaviour

of

those

involved

in

the

legal

process?"

My

interpretation

of

this

shift

is that Weber

withdraws from

the

possibility

that value

judgment

might

in

some sense

be

regarded

as

both

part

of

empirical

science

and

objective.

His

effort

to free

sociology

of

value

judgment

is renowned

and

has

had enormous influence.

But

in

his

essay

on Stammler

it looks

distinctly

shaky.

For is

it

not essential

to

the

idea

of

legal

judgment

that

it is

objective?

This

means that

the

judge

rightly

understands the

legal

rule

he

is

implementing

and

correctly

applies

it

to the facts he considers. Indeed

sociological

studies of law defacto make the assumption that objectivity in the use of law is possible,

even

if

widely

broken.

For

instance

the

basis

of

many

statistical

studies of court

judgments

is

that

there

are features

of verdicts taken

over

a

wide

number of cases

which

suggest

that

some

categories

of

person

receive

more

favoured treatment

than others.

Implicit

in

these

studies

is

a

notion of

how

verdicts would

be

distributed

if bias did not enter

in.

Absurd

though

it

may

seem,

this

simple

statement,

value

judgments

may

be

objective,

is

quite

at

odds

with the

views

of

Max

Weber

and

I would

say

the

vast

majority

of

sociologists

since

him. Indeed

for

the vast

majority

it is a

patent

contradiction

in terms

to

say

this,

for

value-judgments

are

held to be in their nature

subjective.

This is not

the

place

to review the philosophical doctrines and technical ideologies which underlie this view.

I

regard

it

as

an

aberration

of

high

capitalism.

Briefly,

the whole

point

of

talking

about

value-judgment

s to

indicate

the

objective

nature

of

it. What

is

subjective

in

evaluation

is the

personal

commitment

to value

(though

even

that

is

open

to rational

influences,

which

again

Weber

would

deny).

It is not

infrequent

that

value-judgments

are

made

by

those not

committed

to them. The

judge

may

not

agree

with the

law

he is

asked

to

interpret

and

administer,

but that does

not

help

those who

suffer

his

unwilling

verdict.

This

capacity

to

express

value-judgments

and

remain detached

from

26



15/19

them

is

characteristic

f

modern

ife.

Both

lawyers

and

sociologists

often

feel

themselves

in this

position.

Both

sociologists

and

lawyers

are

interested

n

the

meaning

of

rules

and

the

way

they

are

applied

n

social life. Thereare

differences

n orientation

between

awyers

and

sociolo-

gists

but these differences

o

not

hinge

upon

the

commitment

f

the

lawyer

as

against

he

detachment

nd

empiricism

f the

sociologist,

Now

if

this

is

so,

Weber's ontrastbetween

the

sociological

and

juristic

point

of

view on

law

is

ill-founded.

Moreover

his criticism

mustalso

extend

o his

concept

of law

for

we showed

how

intimately

t was

connected

with

his

methodological

iews.

In fact we

found

that

Weber's

reatment

f

the

concept

of

law

was

at

variance

with

his

ideas on how the

sociologist

considers

ethics and

conventions,

namely "exclusively

n

accordance

with

the

notion

of

the

'ethical'

which

s

actually

held

by

the

people

n

question".

I

think

again

this

is

to be

explained

by

his

determination

o

invent

a

rigid

dichotomy

between

he idea

of lawandthe

idea

of socialscience.

For if one considers

his dictum

n

respect

of

ethics

and

conventions,

hat

is

from

the

point

of view

of the actor

which

Weber

is famouslyassociatedwith in contextsother than law, it becomesapparentthat the

sociologist

must take

on some

of the

functions

which

in

respect

of law

he thinks

are

exclusive

o the

lawyer.

To writeabout

the rules

of

everyday

ife involves

a

conceptual

reativity

n

the

part

of

the

writer.

One

cannot

turn

to a Code

of

everyday

ules.

One

has first

to write

an

account

of those

rules

one

believes

are

held

by

the

actors

n

question

andthen

to

ascertain

whether

or

not the

rules

are observed.

Eventhat

is a

simplification

f

a

complexprocedure

or

very

often

the

existence

of

the

rule

is

only

inferred

rom

socialreactions

o

its

breach.

In

the

study

of

the norms

of

everyday

ife or in what

used

to be called

the

sociology

of

morals

thereis a simultaneous rocessof abstractionromrealityandjudgmenton that reality.

In

this

respect

he

sociologist

has

all

those functions

which

n

respect

of law Weber

eserved

to the

jurist.

He

both

clarifies

alues

and

makes

udgments

n terms

of them.

(I

happen

also

to believe

that

this cannot

be

donewithout

commitments

o values

but this

is beside

the

point

here).

Now

if

Weber

were

to

allow

the

sociologist

o do this

in

respect

of law

it is clear

that

he

would

be

allowing

himto have

the same functions

as the

jurist

and

giving

him

a

con-

structive

part

in

the

definition

of law

as

well as the

legal

process.

This

would

certainly

derogate

rom

the

dignity

of law

and its

independence.

Hence

we

get

Weber's

nsistence

thatthe sociologist'sconceptof law is differentromthe lawyer's, n insistencewhichwe

found

had

an

increasingly

ollow

ring

to it as Weber

akes

on the role

of

partisan

or

a

particular

uristic

heory

n

his

account

of Law

in

Economy

nd

Society.

Weber's

concept

of law

is

unacceptable

recisely

because

he wishes

to

argue

for

a

fundamental

istinction

between

ociological

nd

legalpoints

of view.

We have

to

recognise

that

in a

very

mportant

ensethe

jurist'sconception

of lawis

already

ociological.

By

that

I mean

that

as

a

general

concept

t

already

nvolves

an abstraction

rom

a

multiplicity

f

concrete

circumstances

nd

in its universal

pplicability

cross

the boundaries

f

different

27



16/19

cultures

expresses

a

highly

abstract notion.

While

the

practising

lawyer,

barrister

or

solicitor,

probably

has some

general

idea

of this

exceedingly

abstract

entity,

he

is able

to

conduct

his

daily

work without

concerning

himself with

it. In

general

he is

concerned

with

the

law

of

this

or

that,

at most

with

English

law,

if

he works

in

that

social

system.

"Law"

in

the

general

and

abstract

is

a

jurisprudential

creation

based

upon

a

joint

process

of

conceptual

abstraction

and

empirical

generalization.

What

Weber wants

to

do

is

to confine the

conceptual

abstraction

to the

jurist

and the

empirical generalization

to the

sociologist.

This

is

not

possible.

They

are

phases

of

the

same

dialectical

process.

The

conceptual

abstraction

is

performed

in

the context

of

encounter

with

different

systems

of

law: the

empirical

generalization

takes

place

against

the

background

of decisions

on what

is to be

understood

by

law.

Weber

wishes to offer

a

"sociological concept

of law"

without

attending

to

the

meaning

of law

as

understood

by

jurists,

or indeed

by

anyone

else

in

society.

This

cannot

be

done

in

a

sensible

way

and

in

the

event it is

not

surprising

that

Weber's

own

treatment

of

the

sociology

of law

shows

that

he

regards

his

view

of

law

as

a

valid

juristic

doctrine

ousting

the

rival claims

of

other

schools.

An attack on these methodological tenets impliesa criticismof Weber'sdevelopmental

account

of law

in

society,

for,

as

I

have

stressed

already,

the account

of

a

strict

separation

of

formal

and substantive

rationality

in law

is

founded

on

this

methodology.

The

lawyer

is

removed

from

any

interest

in the

real world

and finds

both his intellectual

satisfaction

and

his

power

position

in the

immanent

logical

coherence

of

the

system

of

legal propositions.

Rheinstein,

who

greatly

admires

Weber,

already

suggests

that this

rigid

separation

of

formal

and

substantive

rationality

is

taken

too

far. His criticism

is made

in the mildest

of terms

but

it

is nonetheless

telling.

"Even

the most

highly

abstract

legal

concepts

have been

derived

from

typical

constellations

of

actual

life

and

in

connection

with

considerations

of

some

social

policy,

that

is

substantive

rationality."27

Rheinstein

illustrates

this

by taking

the

highly

abstract

concept

of dominium

and

arguing

that

this

describes

the

complex

situation

in a

community

where members

are

ascribed

the

right

to

enjoy

a

tangible good.

It

only

makes

sense

in a

community

which

ascribes

enjoyment

of

goods

to

individuals.

The

concept

may

be

put

to uses

for which

it

was

not

intended,

but

then

these

conclusions

"have been drawn

by

law

specialists

who have

lost

sight

of

the

actualities

of life

which lie behind

the

concepts."28

While

also

an admirer

of

Weber,

I would be

much

more

inclined

to

severity

than

Rheinstein

because

it

is

on

the distinction

of formal

and substantive

rationality

that

the

whole of Weber'shistoricaldevelopmentalaccount depends. It is an account founded upon

an

untenable

belief

in the

irreducibility

of law

and in its

possession

of the

same

character-

istics

as

formal

logic.

On Weber's

analysis

it is indeed

possible

for law

to

operate

like

the

slot

machine:

feed in the facts

and the

judgment

emerges.

Just as in

his

analysis

of

bureaucracy

the

one

thing

which is taken

for

granted

is that

there will

be no

problems

in

the

interpretation

of

rules,

so

in his account

of law

it is

possible

for the

interpretation

of

a

27

Ibid.,

p.

Ivii.

28

Ibid.

28



17/19

rule to have the

determinacy

f

pure

logic.

Repeatedly

he

uses

the

phrase

"the

logical

interpretation

f

meaning".

But

meaning

s

not

interpreted

y logic.

Meaning

s

understood

throughexperience.Logic

refers o the structure f

an

argument,

ot to

the

meaning

of

its

terms.

The "correct"

r

"objective"

nterpretation

f rules

depends

on

shared

understand-

ings

and

not on

logic.

It is the

degree

of

deductive

ogic

involved

n

the German

view of Roman aw

which

impresses

Weberand leads him to see it as the

apogee

of

rationality,

hat

gapless ystem

of

propositions

n

which

t is

possible

o derive

a

decision

n

every

concrete

egal

case

by

means

of

legal

ogic.

This kind of

"rationality"

s

properly

alled

"rationalism". or

the

ability

o

include he

whole worldwithina

single

set of

propositions

s

not of

itselfrational.The

fact,

for

instance,

hat

I

may

assert hat

all that

happens

n

the

world

s an

expression

f

either

the

"yin"

or

the

"yang"

factor does

not,

in

spite

of the

promising omprehensiveness

f

my

belief,

guarantee

ationality.

Weberadheres

o a form of

"pan-logism"

which

has its extreme

orm

in

the

ideas

of

Hegel,

but

characterizes

much of German

hought.

In Weber'sdismissiveattitude o the

empiricism f English aw and his rejectionof the idea of reasonableness ecauseof its

technical

mprecision

we

can

see the

expression

of one

of the

major

cultural

cleavages

n

the

Western

world. It

is

a

cleavage

represented

ery

obviously

n different

ystems

of

legal

thought

and

practice,

but also

in

philosophy,

administration

nd

science and is still a

significant

actor

in

the lack

of mutual

understanding

etween

the

Anglo-Saxon

and

Germanic

worlds.

When

the

extraordinary

nd

irrational

ascination

with

formal

ogic

is

recognized

n

Weber's

work,

then the

source

of so

many

of his

paradoxical

nterpretations

f the

develop-

ment

of modem

aw becomes

apparent.

Only

f

one believes

hatthe intentions

f the

parties

to a contractare irrelevanto formal egallogicis it possible o consider he mostmodem

developments

f commercial

aw as

somehow

a breakwith

the

necessary

ower

of

formal

law.

Only

on this basis

is

it

possible

o

reject

n

principle

he

participation

f

juries

n

the

legal

process.

Only

in

this

way

is

it

possible

to see

juristic

precision

uffering hrough

he

"intrusion"

f

sociological,

conomic

or ethical

argument.

In an

important

ense

Weber's

mphasis

on

formal

rationality

rivializes he

functions

of

law

in

society.

As is

apparent

by

his

own historical

analysis

t is difficult

o show

any

clear

relation

between

ormal

law and the modern

economy. Very

different

egal

forms

provide

the

framework

or

capitalistic

development.

Propositions

f

any

content

whatso-

evercanbe partof a legalsystem.Lawhas no substance,t becomesmereform.Lawyers

become

he

narrow

repr

Documents

Albrow_Legal Positivism and Bourgeois Materialism Max Weber's View of the Sociology