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On reading Weber, what do you think is rational and irrational in modern law?

Introduction

Weber, in his examination of modernity turned his mind to the notion of “rationality”. In one respect, Weber defined rationality as being synonymous to calculability and predictability; its application unconfined to the realms of economics, art and bureaucracy, but further extends to the legal scope – such that rationality is perceived in legal formalism. Weber identified four ideal-types of legal system, that of the formally rational, formally irrational, substantively rational and substantively irrational[1] maintained that the highest of the four ideal-types that existed in the interplay of modern law, was that of formal rationality which was present in the European legal system, but absent from the England legal system.[2] Thus, in construing Weber’s writing, there appears to be a contradictory element in his argument of a positive and direct relationship between the highest form of legal rationality and that of economic rationality embodying capitalism – as in spite of the absence of formally rational, but rather the existence of a formally irrational, legal system in England, where industrial capitalism first emerged due to the rationalisation of its economic environment. In contrast, Weber also considered that substantial irrationality in the Orient’s modern law.

Formally rational Occident

Weber uses the term rationality as a means to describe the legal procedures, denoting it as the extent by which the system is capable of “formulating, promulgating and applying universal rules” through the use of “explicit, abstract, intellectually calculable rules and procedures”.[3] I similarly agree with Weber that in the modern law, such rationality exists in the formally rational ideal-type of legal system. It is essential in an operative formal rational legal system that adjudication in concrete cases is made consciously under the guide of legal norms enacted through legislation; that is, in short, abstract legal concepts need be applied to concrete cases.[4]

Rationalisation in modern law, necessitates not only the existence of generalisation of law-making and law-finding through the legal reasoning of recurring cases as to produce a “reduced” number of legal propositions “relevant to juristic valuation”[5]; but also the methodical systemisation of law-making and law-finding, such to ensure legal propositions, evident in legislation, are synthesised is a “clear, internally consistent, and… gapless system”[6] that is logically applicable to all possible fact scenarios. Rationality of the modern law would require the systemisation of the generalisation of legal concepts, due to its universal applicability affecting the entire legal system in its assurance of legal certainty. For instance, in considering rationality with regards to capitalist transactions, the abstract nature and pronounced strictness of procedures evident in the law, endorsed by legal norms, would ensure calculability for the involved parties.[7] As such, I concur with Weber’s view of rationality in modern law involving the reduction of concrete individual cases into few legal propositions.[8]

Similarly, I support, Weber’s proposition that “modern legal rationality is formalism”.[9] Legal formalism exists in conditions whereby legal rules and procedures are derived from within the legal system, as opposed to with reference to substantive external values, including religion, politics and ethics.[10] Formality provides for an autonomous system whereby there exists strict “fixed meanings”[11], which produces reliable predictability in the operation, performance and outcome of the legal system, similar to that of a “rational machine”.[12] Weber finds that formalism guarantees individuals the “relative maximum freedom, and thus increases the possibility of predicting the legal consequence of their action”.[13] On the other hand, a substantive legal order would produce a law that deals with all factual situations on a case by case basis, taking into consideration the particular concrete factors of cases. It would thus be inconsistent with rationality to adopt a substantive unstable system in modern law; for such a system is irrational and indeterminate in outcome, with features similar to that of khadi justice, whereby norms other than those logical generalisation in law, including a judge’s personal sense of equity, ethics and principles of ideologies other that the law, determine the legal order.[14]

Encompassed within the rational modern law is the principle of ensuring the perception of predictability within the legal order. Weber denotes that the rationality of norms in the legal order is aimed at providing the predictability of social conduct to facilitate economic transactions; that is, more precisely, the “actual determinants of human conduct”[15] which subsequently affects economic conduct. Weber’s emphasis of the existence rationality, and hence predictability, in this aspect highlights his view of the paralleling evolving importance of capitalism and modernity. Such an instance in modern law, indicated by Weber, as signifying the necessity of rationality and predictability of legal order is the social conduct in guaranteeing the performance of economic contractual so to ensure market predictability. Weber posited the necessary rationality of the freedom of contract in the modern law – the contract serving as a mechanism to regulate and protect the capitalistic interests of the bourgeoisie class through its coercive enforcement to provide predictable social relation.[16] Such rationality of contract, with its interconnectedness to the performance of economic transactions, provided for the certainty of market transaction, which assisted with the growth of capitalism in modern society.

According to Weber, the bourgeoisie class further attributed to the rationalisation of modern law. As aforementioned, this class held a capitalistic interest in the expanding market economy; and is vital to the pursuit of capitalism involved the necessary guarantee of rights to ensure market predictability, with the influence of the bourgeoisie class prevailing in “determining which legal transactions the law should regulate by means of power-granting norms”.[17]

Formally irrational England

Upon reading Weber, it appears that he poses a contradiction in his writing – as he emphasises that “only logically formal rationality, could guarantee the needed legal certainty”[18] duly accompanying the rise of capitalism; yet despite this claim, such a system never existed in England, from which capitalism first emerged. Rather, Weber categorised, and I believe correctly, the English legal system as a formally irrational ideal-type.

The English legal system was operative under a common law framework whereby cases were determined by judges based on precedents. In addition, new legal norms were developed through charismatic revelations made by the judge, as the qualified person, which resulted in the development of “fluid and flexible” [19]  decisions; as the technique in reaching these concrete decision went “beyond the rule of reason”[20] and was detached from any logic and rationality, that typify decisions made in the formally rational legal order of the continental Europe. Thus, the cases are subject to the “personal creation of the concrete individual judge”[21] and the English modern law is of a formally irrational ideal due to the lack of predictable decision making from general rules and the inability of control by the intellect[22] – all of which are, according to Weber, rational attributes of legal order.

The emergence of the jury furthered the irrationality present in English modern law; for the jury determine the verdict of cases and questions of law, not according to precedents, but rather their decisions are based on the particularity of the case such it results in lower levels of generality of legal rules, which corresponds to a lower level of predictability of legal consequences and irrationality of adjudication.[23] Inferentially, the role undertaken by the jury and judge is likened to those decided by performed by supernatural forces, oracles or ordeals – of which are irrational, due to its lack of explicit mention of the grounds for its decisions and thus in not assisting in the provision of a predictable body of law. It is only when the judges’ overtly articulate the embodiment of the verdict and its legal form does it become part of the body of law.[24]

Despite the common law administration of justice’s irrational adjudication, there was evidence of a rigorous formalistic procedure through the distinctively legal precondition of the decision making by the empanelled jury and presiding magistrate or judge, of which was according to Weber, their adjudication requisite the “relevant questions” to be stated in the “formally correct manner” before the “right answer” results.[25]

To the contrary, it also appears that Weber explicitly suggests that the “logical systemization” of case law within the common law framework, is consistent, with the “formal law as such”[26] of the civil law legal system, so too as well provide for the rationality of modern law and increases calculability via a differing route to foster industrial transactions. In England, the calculability is attributable to the binding force of precedents to be applied by judges[27]; however it may be sensible to limit the rationality, through the jury’s existence, due to the possible procurement of “bad law”.[28]

As aforementioned, the bourgeoisie were inclined towards a rationalised law and through their dominant position in the expanding market, excised influence to further promote the rationalisation of the law. In England, the guaranteed market predictability lay in the ability of “jurist… to use their innovative skills to shape the direction of case law and the establishment of precedent to best serve the interests of their business clients”[29]. Consequently, case law provided a means of internal rationalisation through assuring certainty of contractual rights of the bourgeoisie’s capitalist interest, whilst maintaining its irrationality in the unpredictable adjudication.

Henceforth, it can be said that the modern case law, identified within the English system, is rational to the extent of that judicial application of precedents to produce calculable legal consequences and the case law developed to produce contractual certainty, and thus protection, unto the bourgeoisie class; but to a larger extent irrational just the lack of general principles resulting from charismatic revelation involved in decisions made by the judges and members of the jury.

Substantively rational Orient: China

Weber denoted the Orient legal system as a being substantively irrational with adjudication made on particular case by case basis, whereby the law was non-secular and non-formal – with an absence of the explicit formality of legal rules and its discernment from tradition.[30]

China’s modern law’s irrationality stems from its strict adherence of statutes that were limited by sacred traditions, preserved for centuries, such that there was an absence of general abstract rules that accords with legal logic. Rather the peculiarity of fact situations are “distinguished empirically with their objective characteristics”[31], leaving little room to employ general and universal rules and therefore impose predictability and rationality. Similarly, irrationality of its modern is underscored by the its lack of systemisation of statutes and general principle, as Chinese judges would often introduce inconsistent sub-statutes on an ad hoc basis in different areas of the Ch’ing Dynasty’s code, which consequently produces an incoherent law with various unsteady legal consequences.[32]

Conclusion

In conclusion, modern law at the time of Weber possessed characteristics by which he classified according to ideal-types of legal systems. Moreover, he proposes that what is rational is dictated by those mechanisms, such as legal norms adopted in statutes as well as the formal use of precedents, within the legal system that controls social conduct to ensure the predictability of legal consequences; in particular, such conduct is focused on economic transactions. It is the systemisation of these generality that are of a universal rule that provide a rational dimension of the modern law. On reading Weber, it appears that irrationality in modern law appears where adjudication is made according to the particularity of concrete facts of cases, such that a low level of generality exists – thereby decreasing the predictability of certain legal outcomes.



[1] Weber M (1978) Economy and Society, vol 2, G. Roth and C. Wittich (eds), Berkeley, University of California Press, pp. 653-54, 655-58, 758-63, 767-68, extracted in Law and Social Theory Volume 1 at p 275.

[2] Ewing S (1987) Formal Justice and the Spirit of Capitalism: Max Weber’s Sociology of Law, Law & Society Review, Vol. 21, No. 3 (1987), Blackwell Publishing on behalf of the Law and Society Association, viewed 21 May 2010, <http://www.jstor.org/stable/3053379> at p 488.

[3] Sterling J S & Moore W E (1987), Weber’s Analysis of Legal Rationalisation: A Critique and Constructive Modification, Sociology Forum, Vol 2, No. 1 (Winter, 1987), Springer, viewed 21 May 2010, <http://www.jstor.org/stable/684528> at p 70.

[4] Marsh R M (2000) Weber’s Misunderstanding of Traditional Chinese Law, The American Journal of Sociology, Vol. 106, No. 2 (Sep. 2000), The University of Chicago Press, viewed 21 May 2010, <http://www.jstor.org/stable/3081178> at p 283.

[5] Weber, above n 1, p 273.

[6] Brubaker, R (1984) The Limits of Rationality: An Essay  on the Social and Moral Thought of Max Weber, London, Allen and Unwin, pp. 8 -35, 44-45, extracted in Law and Society Theory Volume 1 at p 233.

[7] Ewing, above n 2, p 289.

[8] Weber, above n 1, p 273.

[9] Brubaker, above n 6, p 231.

[10] Sterling & More, above n 3, p 72.

[11] Weber, above n 1, p 275.

[12] Weber, above n 6, p 232.

[13] Weber, above n 6, p 232.

[14] Weber, above n 6, p 232.

[15] Ewing, above n 2, p 498.

[16] Ewing, above n 2, p 499.

[17] Ewing, above n 2, p 500.

[18] Ewing, above n 2, p 492.

[19] Weber, above n 1, p 279.

[20] Marsh, above n 4, p 282.

[21] Weber M, Economy and Society, vol 2, G. Roth and C. Wittich (eds), Berkeley, University of California Press, pp. 890-92, 814, extracted in Law and Social Theory Volume 1 at p 285.

[22] Sterling & More, above n 3, p 74.

[23] Weber, above n 1, p 279.

[24] Weber, above n 1, p 279.

[25] Weber, above n 1, p 279.

[26] Ewing, above n 2, p 495.

[27] Ewing, above n 2, p 495.

[28] Weber, above n 21, p 285.

[29] Ewing, above n 2, p 500.

[30] Brubaker, above n 6, p 231.

[31] Marsh, above n 4, p 297.

[32] Marsh, above n 4, p 296.


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