Max Weber (1864-1920)

Max Weber was born near Erfurt in Central Germany into a middle-class professional family and studied at Heidelberg and Berlin, earned a Ph.D., and became a professor of economics. He traveled to the United States and, among other cities, visited St. Louis during the 1904 World’s Fair. After his return to Germany, he devoted his life to writing and teaching. Max Weber played a crucial role in the development of sociology. His significance is not merely historical; he remains an ever-present force in contemporary sociology. Today, he occupies a central position among law and society theorists and remains among the most influential social thinkers since the 1800s (Allan and Daynes, 2017).

Weber’s (1954) typology of legal systems rests on two fundamental distinctions. First, legal procedures are rational or irrational. Rational procedures involve the use of logic and scientific methods to attain specific objectives (see also Berg and Meadwell, 2004). Irrational procedures rely on ethical or mystical considerations, such as magic or faith in the supernatural. Second, legal procedures can proceed, rationally or irrationally, with respect to formal or substantive law. Formal law refers to making decisions on the basis of established rules, regardless of the notion of fairness. Substantive law takes the circumstances of individual cases into consideration along with the prevailing notion ofjustice. These two distinctions create four ideal types, which are seldom, if ever, attained in their pure form in specific societies. These four ideal types are:

  • 1. Substantive irrationality. This exists when a case is decided on some unique religious, ethical, emotional, or political basis instead of by general rules. An example of this would be when a religious judge makes a decision without any recourse to explicit rules or legal principles.
  • 2. Formal irrationality. This involves rules based on supernatural forces. It is irrational because no one tries to understand or clarify why it works and formal because strict adherence is required to the procedures. The Ten Commandments, for example, were enacted in a formally irrational way: Moses, claiming direct revelation, presented the tablets and announced, "This is the Law." Other examples include the use of ordeals and oaths.
  • 3. Substantive rationality. This is based on the application of rules from nonlegal sources such as religion, ideology, and science. It is rational because rules are derived from specific and accepted sources and substantive because there is a concern for justness of outcomes in individual cases. The efforts of Ayatollah Khomeini in Iran to make decisions on the basis of the Koran would be an example of substantive rationality.
  • 4. Formal rationality. This involves the use of consistent, logical rules independent of moral, religious, or other normative criteria that are applied equally to all cases. An example of this is modern American or Western law. In general, Weber argued that modern law is rational, whereas traditional law was much less rational in that it did not follow logic and general rules.

While referring to both formal and substantive rationality, Weber discussed three types of administration ofjustice: (1) Kahdi justice, (2) empirical justice, and (3) rational justice. Kahdi justice is dispensed by the judge of the Islamic Shari’a Court (see Chapter 1) and is based on religious precepts and often lacking in procedural rules. Empirical justice, the deciding of cases by referring to analogies and by relying on and interpreting precedents, is more rational than Kahdi justice, but short of complete rationality Rational justice is based on bureaucratic principles and is universalistic, with the same rules applying to everyone. Rational justice is further based on adherence to the observable concrete features of the facts of a case.

In general, Weber’s theory of law reflected his fundamental understanding that modern society differs from its past in many ways by being more rational, in that decisions are expected to be based on logical reasoning based on the facts and circumstances of a particular situation. Weber pointed out that the acceptance of the law as a rational science is based on certain fundamental and fairly logical postulates, such as that the law is a “gapless” system of legal principles and that every concrete judicial decision involves the application of an abstract legal proposition to a concrete situation. There is little doubt that Weber’s idea of rationality captured a crucial feature of modern legal systems.

It is rather ironic that soon after Max Weber’s death in 1920, rational law in Germany eventually was replaced by a faith in the intuition of a horrific charismatic leader— Adolph Hitler.

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