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Legal Positivism and Bourgeois Materialism: Max Weber's View of the Sociology of Law
Author(s): Martin Albrow
Source: British Journal of Law and Society, Vol. 2, No. 1 (Summer, 1975), pp. 14-31
Published by: Wiley on behalf of Cardiff University
Stable URL: http://www.jstor.org/stable/1409782 .
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14
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
15
Mass.).
4 P. Winch, The Idea of a Social Since and its Relationto Philosophy(1958 Routledge, London) 49-51.
16
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.
17
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.
18
19
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
20
Ibid., p. 75.
21
16 Ibid., p. 278.
17 Ibid., pp. 176-188.
18 Ibid., p. 231.
19 Ibid., p. 230.
22
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.
23
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.
24
25
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
26
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.
28
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
29
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.
31