Max Weber's Conception of Law

Max Weber’s Conception of Law
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Introduction
Max Weber, who was born in 1864, is considered to be among the pioneers of modern sociology. After completing high school, he proceeded to study law, philosophy, history and economics at Heidelberg University and then joined the military. He however resigned from the military and resumed his studies at Berlin University. He was awarded Ph. D In 1889 after passing his examination and completing a thesis project. His sociological concepts were developed while he was an editor of a prominent science journal. As an editor of this journal, he was requested to address the congress of arts and sciences where he expressed that America is a country that lacks ethical and moral jurisdiction. According to him, this aspect was because the American people had neglected religion as a dogma for moral foundation (Kalberg, 2002).
The essays he compiled afterwards such as The Protestant Ethic and the Spirit of Capitalism further supported this ideology. The works, published in 1905 discussed the idea that the present capitalism could be attributed to Protestantism. His works and writings are considered to be the basis of modern sociology. They have also influenced many aspects of the modern life such as in economics, politics and religion (Weigert, 1991).
Max Weber’s Typology of Law
The following table illustrates Weber’s typology of law
Formal RationalitySubstantive rationalitya)The English Common Law
b) Logical
German Civil Law
Global codified legal systems
Socialist regimes
Talmud
Church LawFormal irrationalitySubstantive irrationalityA prophetic revelation
Oracle
Lay MagistratesKadi
Dictator
Substantive irrationality:
Under this situation, legal decisions are deliberated on the basis of strong factors of emotional, political or ethical principles rather than common norms. Lawmakers and “law finders” deal with certain legal issues subjectively basing their judgment on the direction of their conscience and emotional valuations. Examples are derived from legal deliberations by a dictator or a Muslim kadi. These people execute justice without regarding general laws but assess the facts of individual cases (Weber, 1978: 976-8).
According to Weber, certain aspects of the English common law are irrational. In particular, the role of the jury in determining facts, and making legal decisions that are based in their individual emotions, instinct and persuasion rather than logical thinking. Weber observed that neither the kadi nor common laws at that time executed justice without being guided with broader values. Values in this case could be based on legal, religious or other principles. The judicial legal system needs some level of consistency that depicts prudence. Another conception is that no two cases can be similar; hence, precedent cannot be utilized to make decisions for other situations (Hunt, 1978: 108-10).
Substantive Rationality
A legal system that is depicted by substantive rationality operates where legal deliberations are made, by adhering to laws that reflect ethical and value commitments. An example can be derived from religious laws or political ideologies. Implementation of common interest policies or social justice policies through the legislature and judicial principles are other examples of substantive rationality.
Formal Rationality
This is the most enhanced type of systematization. A law can be viewed as rational as long as it is recognizable in substantial law. In this perspective, formal legal procedure should be adhered to by examining the unfolding of the operative facts pertaining to the case. All formal law is considered rational. The formality of the law entails those substantive and procedural elements that are characterized by real facts of the case that are taken into account (Weber, 1978: 656-7). Weber distinguishes between two forms of formalism viz a viz extrinsic and intrinsic.
Extrinsic: This is whereby; relevant legal features are tangible or visible. They may include expressions or use of signs. The legal framework in deciding one strong individual case is based on one or more legal prepositions, which are dependent upon a systematic analysis of the case facts and relevant components. An example of this legal form is the English common law in England and its former colonies, which basically operates on a case-by-case accretion of legal values. According to Weber, Extrinsic formal rationality finds its place in the case-by-case pedantry on facts and the meaning of expressions. This aspect draws legal practitioners towards moral rather than procedural judicial deliberations (Anleu, 2010).
Intrinsic: In this case, features that are legally relevant are disclosed inherently through logical reasoning and interpretations. Accordingly, this system also features and applies fixed legal procedures and regulations (Weber, 1978: 657). Most of Weber’s discussion on rational law is centered on this form; giving an example of Pandectist German Law system that was based on original set of Roman values. The present regulation that originated from the Roman law and developed through Pandectists relies on a rational system (Kronman, 1983, 78; Weber, 1978: 657).
The process of lawmaking and lawfinding can be termed rational as long as they are based on standard principles that are not affiliated with any ethical, religious or political ideologies. The process neither regards procedural acts but the use of common concept of a conceptual character (Rheinstein, 1954: xlix).
Relating Max Weber’s Typology and Modern Law
In accordance to Weber, the presence of law is defined by the probability of physical or psychological coercion, which generates conformity and repulses violations. He also clarified that human beings who are concerned about this aspect should ready themselves for the purpose (Kennedy, 1980)
In essence, Weber gives an account of the relationship between sociology and law and how this is linked to legal development. He expresses that in legal perspective, validid of the law is considered an important aspect. In Social perspective, the day today happenings in the society are regarded important in making legal deliberations. According to him, these two viewpoints are quite different but they do not override. However, His belief that legal viewpoints had their own logics was controversial and elicited debates from a number of scholars (Albrow, 1975, pp. 14-31).
In his sociology of law evaluation, Weber incorporated and described the legal viewpoints that were present in western regions during his time. He also described the stages in which these legal viewpoints were developed and also emphasizing the contradiction on sociologists’ views and the legal standpoints at this time. However, from his writings, Max Weber is noted as embracing the formalization of law but his concept on the same deviated from the sociological point of reference at that time. Weber’s attitude towards formalization of law was partly influenced by his concept of domination. In his accord, Bureaucrats were carrying the formal laws at his time at their whims. This legal perception of Weber however was not supportive to his own concept of modernity (Millen and Taveira, 2012).
Max Weber introduced his typology of law at a moment when there was a spectacular reviewing of legalism in western perspective. The Classical Legal Thought in western ideologies was a defined legal system. However, this system elicited opposition from two viewpoints. The viewpoints are the socially oriented legal perspective and Max Weber legal opinion. Weber’s typology acknowledges that the classical legal thought was the form of the present system. His evaluation of the classical legal thought was majorly based on the criticisms of this legal formality. He evaluated both CLT and the social system (Eric, 1983).
In accordance to Weber, classical law in the 19th century was formulated on the basis of internal structures, which provided distinction between private and public law. The success of these aspects depended on how individuals became committed to interpreting the laws. He combined these traits in what he called the will “theory” (Wieacker, 1995).
In the social legal perspective, Weber’s will theory articulates that the private law regulation of the “elite” Western states could be tacitly understood as a set of coherent derivations from the perspective that governments ought to assist individuals to understand their wills; this will enable others to do the same. The will theory made both public and private law trail from this government commitment, for instance by incorporating theories of the distinction of powers for form of human rights. This theory was apparently focused on recognizing the laws that were based on harmony in goodwill of an individual’s determination in self-realization. This theory was not a justification of political or moral philosophy, or in other ways historical or sociological theories in relation to this goal. Particularly, the theory was based on the specified, will based, and interpretations of the linkage between norms, legal systems and institutions that were responsible for affecting the same (Kennedy, 2005).
Weber distinguishes between forms of legal views in accordance to his perspective of rational mode, which he termed as logically formal rationality (LFR). The legal aspect in science at this time, which had achieved the highest measure of logical rationality, had originated from five concepts. The first is that all decisions pertaining to application of law mechanisms be based on situational facts. The second preposition is that legal decisions ought to be derived from the conceptual prepositions of logic. The...