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Max Weber on the rationalization of law.

The distinction between the substantive and formal rationalization; in regard to legislation (law
making) and judication (law finding).

Weber tried to identify the dynamics that promoted the rationalization of law in the West, as well as
the dynamics which caused the retardation of this rationalization process in other civilizations.
Weber started his analysis providing the reader with a sociological definition of law. According to
Weber, in order to call an order law, it needs to be externally guaranteed by the probability that
physical or psychological coercion will be applied by a staff or people in order to bring about
compliance or avenge violation (Weber 1968: 34). That means that what makes an order law,
according to Weber, is not its source of legitimacy but the existence of enforcement that increases
the likelihood of its being obeyed.
Max Weber regarded the political systems of modern Western societies as forms of legal
domination. Their legitimacy is based upon a belief in the legality of their exercise of
political power. He distinguishes 3 kinds of political power: traditional authority - based on the
belief
in aoftraditional
form
of power
;charismatic
authority
- based
the belief
on the
qualities
the political
leader
;rational-legal
authority
- based
on aon
system
of laws
andextraordinary
is the
typical form of legitimacy .The appeal of Jesus Christ, for example, one of the most important
charismatics in history, was partly based on tradition as well.

Legal domination acquires a rational character in that, among other things, belief in the legality
of authorities and enacted regulations has a quality different from that of belief in
tradition or charisma. Weber supported a positive concept of law: law is precisely what the
political legislator whether democratic or not enacts as law in accordance with a legally
institutionalized procedure. Under this premise the form of law cannot draw its legitimating
force from an alliance between law and morality. Modern law has to be able to legitimate
power exercised in a formally legal manner through its own formal properties.

Weber categorizes law making and law finding processes based on their rationality and formality
(Schluchter 1981). This leads to a classification of law as rational or irrational according to their
either formal or substantive aspects. As a result, a fourfold ideal-typical typology of law emerges:
Formally rational, substantively rational, formally irrational and substantively irrational. According
to this ideal-typical typology, formally rational law, exemplified only by Western law, is guided by
general principles and is considered a gapless system of rules (Weber). The legal order in formally
rational law is autonomous and professionally administered (Sutton 2001). Since the Western
legal system is the only example of formally rational law, according to this categorization, all nonEuropean law, by contrast, is either irrational or substantively rational (Crone1999) . Although one
can say that a case of rationality or irrationality in this sense in European history is present.

An extreme case of rationalization was the extermination camps of Nazi Germany. The goal was to

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An extreme case of rationalization was the extermination camps of Nazi Germany. The goal was to
kill as many people as possible in the most efficient manner, and the result was the ultimate of
dehumanization--the murder of millions of men, women and children. The men and women who ran
the extermination camps were, in large part, ordinary human beings. They were not particularly evil
people. Most went to church on Sundays; most had children, loved animals and life. The
extermination camps and their suppliers were models of bureaucratic efficiency using the most

efficient means available at that time to accomplish the goals of the Nazi government. But German
corporations went beyond supplying the government with the machinery of death, some actively
participated in the killing process. The executives of these companies were merely carrying the
logic of corporate rationality to its ultimate conclusion...the perfect labour force for a corporation
that seeks fully to minimize costs and maximize profits is slave labour in a death camp. Among the
great German corporations who utilized slave labour were AEG (German General Electric), Audi,
Krupp, Siemens-Schuckert and Telefunken"(Rubenstein, 1975)SS guards supplied by the state
would administer punishment when rules were broken. The workers at the plants were treated as all
other inmates in the camp. The only exception was one of diet, workers in the plants would receive
an extra ration of "Buna soup" to maintain "a precisely calculated level of productivity".With an
almost inexhaustible supply of workers, the corporation simply worked their slave laborers to death.
Rationalization causes the weakening of traditional and religious moral authority (secularization);
the values of efficiency and calculability predominate. In an advanced industrial-bureaucratic
society, everything becomes a component of the expanding machine, including human beings
(Elwell, 1999)

According to Weber with formal rationalisation, we ended up having so much legal procedures
which had to be written down, that the need has arisen for us to have lawyers to interpret those laws
for
us.all.
Law
became
complex and of
regulated
that athat
lay-person
understand
them
The
formalso
rationalisation
law implies
laws arecannot
codified,
impartial, and impersonal.
Law making and law finding are formally irrational if they apply means other than reason to arrive
at judgements. However, although the process is irrational, this law, because of the magical
elements in it, still presents a rigorous formalism (Weber, 1968). According to Weber, ... unless the
relevant question has been stated in the formally correct manner, the magical techniques cannot
provide the right answer (Weber, 1954). The category of substantively rational law is guided by the
rules and principles of an ideological system other than that of the law itself. Weber remarks that
substantively rational law does not follow principles of formal logic in its mode of thought;
nonetheless, it has its own mode of rationality that follows the substantive principles of the
ideological system to which it adheres.
He acknowledges the move from status contracts to status purposes. Status contracts allow for a
change in ones own status. Purposive contracts do not affect the status of a person but aim to
achieve some specific result or performance. For example, buying a piece of land and making
contract to achieve it. This increases freedom as it allows people to make calculations to
predict legal consequences of their conduct. There are always records. Weber said that rational law
is typical for capitalist societies (economically). The increasing centrality in private contract law
was a maturation of contract law. At the same time, Weber argues that modern law has developed
such, that it also influences economic conduct. This means that the economic conduct of
people/entrepreneurs have been affected too. Breaking a contract means paying a penalty.
In contrast, adjudication is purely ad hoc sort in substantively irrational law and cases are decided
on individual basis without referring to general rules (Weber, 1954; 264). Thus, predictability is
minimal in substantively irrational law and the law takes the form of pure arbitrariness (1968; 9768). The primary example of this type of law according to Weber is the Moslem Sharia court. there
are some benefits to examining the accuracy of Webers characterization of traditional Islamic law
and court processes as substantively irrational. Max Weber and Islamic Law Weber also argues that
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and court processes as substantively irrational. Max Weber and Islamic Law Weber also argues that
because of the patrimonial character of the Islamic state, Oriental culture in general and Islamic
countries in particular could not develop autonomous institutions (Turner, 1974). Therefore, as a
social institution of patrimonial society, Islamic law had no autonomy, but developed and practiced
under the direct influence of the state. In other words, Weber claims that throughout Islamic history,
jurists and judges were dominated by state authority and subjected to political influence. According

to Weber, kadi justice represents arbitrary, ad hoc law making in which law- makers do not follow
general principles, but judge each case according to purely arbitrary factors (Weber 1968). Hence,
the law resulting from a kadis decisions lacks both generality and stability (Weber 1954). Weber
claimed that the law applied in the Muslim courts is unstructured and sustained by faith and
intuition, and consequently is a complete antithesis of formally rational Western law. According to
this view, the Moslem judge sits in the market place and, at least seemingly, renders his decisions
without reference to rules or norms but in what appears to be completely free evaluation of the
particular merits of every single case (Weber, 1954). Moreover, in kadi justice there is no
boundary between law and other aspect of social life. Disputes are settled on the basis of popular
wisdom, ethical maxims and ad hoc analogies (Sutton 2001). Accordingly, Muslim judges, contrary
to the practices of judges in formally rational law, mainly dispense folk justice. Also, the informality
of court procedures in Muslim courts constitutes a dissimilarity between Western and Islamic law.
Weber further argued that due to its substantive and irrational nature, adjudication in kadi justice
is not rule bounded. Thus, it is hard to predict the outcome of the judicial process.
Weber argued for a centrality of professionalisation in these developments because he considers the
training of professional lawyers as the most important factor towards the formal rationalisation of
law. He also points out the formal rationalisation of law accelerated as societies began to
reduce priests as lawyers from the system. Law rationalisation is also pushed forward in the
European
continental
fashion of academic law, whereby law is treated as a science in order to build
and study our
social system.

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