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Weber, Max (1864–1920)

Max Weber, a German sociologist, was one of the founding fathers of his discipline, particularly the sociology of law. Weber analyzed law along two dimensions: the degree to which law is formal and the degree to which it is rational. Formality refers to a legal system's strict procedures and evidence rules, often coupled with the relative autonomy of legal institutions or legal personnel. Rationality refers to a legal system's systematic, logical derivation of abstract legal propositions that legal experts can reconstruct and consistently affirm over time, rendering the system in general calculable and predictable. Weber's analytical method, based on the comparative studies of many civil and religious legal systems, led him to articulate four ideal-typical systems of law: formal-rational, formalirrational, substantive-rational, and substantiveirrational. For each, Weber provided examples based on his explorations of Islamic, Jewish, Hindu, and canon law, as well as from his studies of legal prophets, legal “honoraries” or experts, and various forms of charismatic revelation.

Formal-Rational Law in the West

One of Weber's important theses, based on his sociohistorical inquiry, was that the full development of formal-rational law occurred only in the West. Not unlike his thesis concerning the unique sociohistorical conditions that allowed the development of capitalism, Weber treated formal-rational law both as a primary marker for the increasing rationalization of the West and as a constitutive force in its further rationalization. Weber's ideal-type of formal-rational law is strikingly similar to what scholars later identified as legal formalism in both Continental and AngloAmerican jurisprudence. Essentially, formal-rational law is based on the image of a system of rules where all analytically derived legal propositions are integrated in such a way that they constitute a logically clear, internally consistent, and gapless whole. This systematization allows modern law to conceive of itself as science and to operate almost solely through highly trained legal personnel.

Weber argued that the availability of trained experts who possess legal knowledge was the single most important source of influence over the characteristics of law. Economic needs and interests only influenced law indirectly compared with the influence of legal experts. In modern times, the commercial demand for specialized legal knowledge facilitated the conditions for the rational training of legal experts. Accordingly, Weber distinguished between practical and academic legal training and argued that each tended to have different effects on the development of legal rules and methods. Weber referred to the training of barristers in England as a case of practical training. He argued that when legal education rested in the hands of practitioners, the law tended to resist rationalization through legislation or the development of legal science. The type of academic training that Weber was familiar with in Germany, he believed, fostered the development of abstract norms and reduced the role of practical interests in the formation of the law. Thus, scholars credit Weber with laying the ground for the sociology of legal professions and for the methodology that insists that one should not study law independently of social factors.

Legal Professionals

In Weber's theory, law is a system of rules coupled with historically specific forms of organized legal professionals. He treats it in relation to the development of capitalism, on one hand, and the bureaucraticadministrative state, on the other hand. In these three social domains—law, market, and state—Weber argued that rationalization meant an increasing commitment to instrumental values such as calculability, predictability, and consistency. Weber resisted causal explanations and spoke of the mutually constitutive relationship among law, government, and capitalism, rather than treating any of these domains as the primary causal mechanism. Thus, although capitalism's demand for increased calculability of risks pushed the further rationalization of law, the development of formal-rational law and the availability of trained legal experts facilitated the further development of capitalist activity. At the same time, Weber believed that the more rational a political entity's administrative machinery became, the more rational its law became. This rationalization emerged in response to the administration's needs, sometimes even in opposition to the substantive interests of political rulers.

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