Max Weber and the virtues of legal positivism

Max Weber and the Virtues of Legal Positivism

I     Weber’s Thesis

The previous chapter ended with the claim that what motivated Hart’s thesis, and the entire positivist project until its modern retreat, was the wish to portray legal interpretation as an impartial decision-making process. Now this claim may prove controversial even for those who agree that traditional legal positivism seeks to present an attractive picture of legal interpretation: after all – so the opposing argument goes – the picture of legal interpretation presented by legal positivism possesses a number of significant virtues apart from any concern with impartiality. This position is directly related to a third strain of contemporary legal positivism (other than the two examined at the end of the previous chapter), which still holds to a meaningful version of that school of thought: normative legal positivism. This school offers legal positivism not necessarily as a description of actual legal practice, but as a description of what legal practice should be: it views legal positivism as a theory of law having some important qualities which justify its adoption by legal interpreters.1 In short, according to this position legal positivism possesses a number of important virtues (exclusive of any claim for an impartiality), and the impartiality of legal interpretation therefore need not be positivism’s motivating force.

This chapter is an examination of a famous exposition of these virtues. The author of this exposition was not a legal philosopher; but his thesis is a paradigmatic statement of positivism’s alleged qualities. The renowned sociologist Max Weber, writing at the turn of the 20th century, advanced a wide-ranging thesis regarding the methodology employed by modern Western law, the relation of this methodology to Western capitalism, and the basis for Western law’s claim to legitimacy. According to Weber, the ascendancy of capitalism in the West required a certain ‘mode’ of legal decision-making – a mode taken straight from the theory of legal positivism. Weber’s thesis seeks to link the functional virtues of legal positivism to the functional necessities of the modern capitalist state. Section I of this chapter surveys Weber’s claims for the functional virtues of ‘formal rational law’ (which is Weber’s version of legal positivism); section II criticises that thesis; and section III re-examines the relation between impartiality and formal rational law. As will become clear, formal rational law does not possess the virtues that Weber claims for it – though it does describe an impartial methodology of legal interpretation.

Weber’s Categories of Legal Thought

What Weber was most interested in explaining was the rise of capitalism in Western Europe, which he saw as a function of the peculiar religious, political, economic, and legal characteristics of Western European society (themselves a result of certain historical conditions found in Europe but not elsewhere). Weber – a lawyer by training – saw European law as a unique phenomenon among the legal systems of the world – a particular form of law which both facilitated, and was facilitated by, the rise of Western capitalism. In elaborating the links between the social, economic, and political phenomena which constitute his thesis, Weber uses his famous methodology of ‘pure types’: idealised constructions of practices and institutions which do not purport to constitute a faithful representation of any actual specimen, but instead come to highlight some important or essential aspects of those. Thus, while recognising that the real world contains various adulterations and admixtures of these ideal types, Weber seeks to enhance our understanding by articulating certain exemplary features, and then associating these features with a number of (impure) actual examples – in this case, actual legal systems. (Weber’s work is so full of examples as to knock unconscious any unseasoned reader.)

In a section entitled ‘The Categories of Legal Thought’ in his monumental (posthumous) work Economy and Society, Weber outlines four types of legal systems – each distinct from the others in its relation to the ‘rationality’ of the law and to its ‘formality’.2 The different types of legal thought are distinguished primarily by reference to their ‘law-finding’ methods – that is, their method of legal interpretation – though, as we shall soon see, certain types of legal thought presuppose certain types of legislated laws (certain types of law-finding presuppose certain types of law-making). The first category of law is named ‘formal irrational law’, and is to be found where ‘one applies in law-making or law-finding means which cannot be controlled by the intellect, for instance when recourse is had to oracles or substitutes therefor’.3 ‘Substantive irrational law’ is found where legal decisions are ‘influenced by concrete factors of the particular case as evaluated upon an ethical, emotional, or political basis rather than by general norms’.4 Then comes ‘formal rational law’ (to which modern Western law belongs) where ‘only unambiguous general characteristics of the facts of the case are taken into account’ in applying the law.5 This category further divides into two types. The first is where ‘the legally relevant characteristics are perceptible as sense data. This adherence to external characteristics of the facts, for instance, the utterance of certain words, the execution of a signature, or the performance of a certain symbolic act with a fixed meaning, represents the most rigorous type of legal formalism’.6 The second type of formal rationality occurs where ‘the legally relevant characteristics of the facts are disclosed through logical analysis of meaning and where, accordingly, definitely fixed legal concepts in the form of highly abstract rules are formulated and applied’.7 Finally, there is the category of ‘substantive rational law’, where ‘the decision of legal problems is influenced by norms different from those obtained through logical generalisation of abstract interpretations of meaning. The norms (or rules) to which substantive rationality accords predominance include ethical imperatives, utilitarian and other expediential rules, and political maxims, all of which diverge from the formalism of the “external characteristics” variety as well as from that which uses logical abstraction’.8

Let us improve our understanding of these categories through the use of examples. In formal irrational law the decision in a case may revolve, for instance, around whether the hand of the accused is burned by the fire put to it, or whether the woman thrown into the water sinks or floats. Thus legal thought is ‘formal irrational’ in so far as it revolves around formal tests whose underlying modus operandi is not available to the human intellect, and cases are decided strictly according to these tests. Substantively irrational law is, according to Weber, the law administered by the Kadi in Islamic law: the Kadi hears a dispute and then arrives at a solution by a process purporting to involve intuition and divine guidance.9 This form of legal thought does not involve any formal tests; instead, the legal solution depends on a reasoning process that is helped and guided by an almighty God. However, the process is irrational in so far as it is guided by intuition – by implicit and unarticulated (or even unarticulable) factors. Formal rational law of the sense data type can be found where a will would be held per se enforceable if it was signed in the presence of two witnesses; while the logical analysis type (the second – and predominantly modern – form of formal rational law) is found where the unauthorised diverting of electricity is held not to constitute ‘larceny’ because ‘larceny’ is defined as the unlawful taking of chattel, and electricity, according to the logical analysis of meaning, is not chattel.10 In other words, formal rational law applies its standards by reference to the meaning of the words employed in those standards. It is a form of law employing formal tests, but these tests (unlike the test of the woman thrown into the water) are rational. Finally, substantively rational law is the type of law that was presumably administered by tribunals in the ex-Soviet Union: decisions were guided by substantive ideological orientation, in furtherance of that ideology. This is a rational form of decision-making, but a substantive rather than a formal one.

Given all this, the ‘rational’ v ‘irrational’ and the ‘formal’ v ‘substantive’ dimensions of law can be explained as follows. Irrationality pertains, first, to legal decisions made by considerations whose relevance to the resolution of the case is beyond the reaches of the human intellect (the hand of the guilty burns, the witch floats); and also to decisions based on the particularities of a case – decision-making that does not attempt to arrive at generalisations that are valid for other similar cases. (The Kadi deliberates, but he does not seek any generalisations.) This is what distinguishes substantive irrational law from the substantive rational one: substantive rational law is grounded in generalisations applicable not only to the particular case but to other cases as well. So rational law employs legal standards whose relevance to the resolution of the case is apparent to the human intellect, and these standards are generalisations applicable to many cases, not only to a particular one. Neither oracles nor particular emotional or ethical intuitions constitute such standards.

What is the formal/substantive distinction about? Apparently, formal legal thought concerns itself with legal standards which do not require any substantive judgment: the sink/float test, or the presence of two witnesses. Yet according to Weber the logical analysis of meaning is also formal. What marks the line between formality and substance here? David Trubek thinks that Weber’s formal dimension depends on the extent to which a law employs ‘criteria of decision intrinsic to the legal system’.11 According to Trubek, formality denotes the level of autonomy of the law: a law is formal to the extent to which legal thought is autonomous. But autonomous from what? After all, magic and oracles (which may belong to formal law) are employed outside the legal realm as well as within it; and even the logical analysis of meaning must derive its analysis from logical and linguistic understandings which exist, so to speak, independently of the law. It appears that what marks for Weber the formality of legal thought is not its independence from any ‘real world’ considerations, but rather its independence from any evaluative reasoning: Weber’s substantive law is characterised as requiring such evaluations, whereas his formal law is characterised as precluding them. What is it that makes separation from evaluative reasoning so significant for legal thought? The answer is this: for Weber, the rational formal/rational substantive distinction marks the difference between a law whose application is predictable and a law whose application is not.12

Weber’s thesis is this: capitalism can thrive only in a predictable legal environment – ‘capitalistic enterprise’, he says,‘… cannot do without legal security’.13 ‘Legal science’ – as Weber puts it – reaches proper predictability only in the formal rational form of legal thought. Thus, formal rational law is indispensable for capitalism by virtue of its predictability. In other words, legal positivism is good because legal positivism produces predictable legal requirements; and predictable legal requirements are good because they allow the commercial certainty required for proper economic planning and its efficient execution. Note that this alleged virtue of legal positivism in fact goes beyond the mere functional benefits of economic planning which Weber mentions: legal predictability puts the citizen on notice – it lets the citizen know what can or cannot be done, which is a moral virtue; it prevents the infliction of punishment where there is no culpability, and it also enhances the autonomy of the individual, by drawing clear boundaries as to what is legal and what is not.

To the thesis on the link between capitalism and legal predictability Weber adds a second thesis: capitalism, he says, requires a set of policies operating against substantive justice, and delinking ethical evaluation from the law is therefore necessary for the smooth implementation of these policies. Formal rational law is essential for capitalism not only because of its predictability, but also because it separates moral considerations from legal determinations.

As I said, what interests me in Weber’s thesis is not the accuracy of the claim that modern law employs formal rational legal thought: we already saw that Hart’s theory, which is similar to Weber’s in its fundamentals, is not an accurate description of our legal practice.14 What we are interested in here is whether formal rational law – that is legal positivism – really possesses the virtues that Weber believes it does.

II     Predictability and calculability

Weber believes that capitalism requires a more predictable law than its predecessor systems of economic and social organisation. Why? The answer has to do with the more predictable environment