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|PHLIP VON MEHREN, J.D.||
TIM SAWERS, J.D.
HODGSON, RUSS, ANDREWS, WOODS & GOODYEAR
Within the framework of his analytical system, which is characterized by the use of ideal types, by examination of the spread of rationalism, and by a normative assumption about the advanced nature of capitalism(10), Weber espoused a typology with four categories of legal thought.(11) He used a typology to isolate by juxtaposition the unique features of Western Law.
The first type, "formal irrational," is characteristic of systems that depend on primitive procedures for deciding disputes, such as the Delphic oracle in ancient Greece. Stringent observance of procedural rules is of utmost importance, but the rules have no relationship to the rational determination of the rights and liabilities of the parties in the particular case. One imagines a priest examining the viscera of a goat and proclaiming the guilt or innocence the accused.
A second type of legal system is the "substantively irrational." Kronman cites as an example "khadi-justce" of the Mideast. Weber characterizes these systems as using an ad hoc process to determine the outcome of a particular case. The system is "irrational" because it espouses no general rules; it is "substantive" because of its willingness to consider the widest range of considerations in determining the outcome of a case. The picture of a Bedouin chief handing out rough-and-tumble justice springs to mind.
The third type of judicial system is "substantively rational." This type is exemplified by theocratic or patriarchal legal systems. These systems are "rational" in the sense of adherence to fixed principles rather than in their mode of thought.
The final type is called "formally rational" and corresponds to the European model of legal thought. These systems give precedence to the general over the particular and to the secular over the moral. Formally rational systems stress "the logical analysis of meaning" which corresponds to the view that law contains neutral principles which are discoverable through the application of techniques of legal reasoning.(12) The European system is also characterized by differentiation of roles within law, and between law and politics.(13)
According to Kronman and Trubek an apparent problem or contradiction emerges in Weber's discussion of "formal rationality."(14) They argue that Weber's own definition of "formal rationality" led him to find its highest expression in the Pandectist system of Germany. Thus, if "formal rationality" in law is an important variable in capitalist development, the more strongly it manifests itself, the sooner and more successful capitalist development should be. Yet England was the first country to develop capitalism and was significantly ahead of the continent economically until the post World War period. The inability of Weber to solve the so called "English problem" is a central tension that both Kronman and Trubek see as undermining his analysis of law's relationship to capitalist development. Yet, at least two solutions to the apparent contradictions are possible. Ewing argues that Kronman and Trubek misinterpreted Weber. She suggests that a one-to-one correspondence between economic and legal rationality is not an underlying assumption of Weber's schema.(15) Thus, the most rational legal system is not necessarily the most economically successful. Essentially this argument rests on an analysis which recognizes the relevance of several independent variables in the rise of capitalism but realizes that the relative mix and importance of these variables may vary from case to case. Thus, even if England did have a less rational legal system, other variables, e.g. religion, could have been stronger than on the Continent or its legal system could have been more rational at an earlier point in time. Yet Ewing essentially takes another tack to untangle the contradiction:
a legal order is formally rational in the sociological rather than the juridical sense when it is based on formal justice. Such a system is abstract and bound by strict procedures, and guarantees the legal certainty essential for calculability in economic transactions, all of which applies both to civil and common law countries.(16)
Ewing's analysis successfully saves Weber's conceptual schema from Kronman's and Trubek's more pessimistic interpetation by distinguishing between formal rationality in the sociological and in the juridical sense. Thus the doctrinal drive for meta-rationality in the Civil Law is viewed as irrelevant, or at least not totally determinative, to the relationship between legalism and capitalism. Both the civil and common law systems provide a context of certainty and predictability sufficient for capitalist activity. Thus, the so called "English problem" is a red herring.
Ewing's analysis essentially preserves the coherence of Weber. She has convincingly shown that Weber can be fairly construed so as to preserve the theoretical integrity of his framework from the alleges contradictions uncovered by Kronman and Trubek. Given that Weber's framework is coherent, how did he view the specific causal interaction between law and social change? Kronman has called Weber's approach "causal agnosticism."(17) Yet he points to two different ways in which Weber claimed that "formally rational" law could influence capitalist development. The first is both the most important and the most general. Legal rules that protect individual entitlements, especially in the context of contracts, promote economic activity:
By guaranteeing that contracts will be enforced in accordance with fixed rules known in advance by the contracting parties, the legal order significantly increases the probability that promises, once made, will be kept and thereby encourages promisemaking and the forms of economic activity that depend on it (most importantly, market exchange).(18)
The legal order also promotes capitalism through the development of concepts that are useful in certain specific situations. Weber specifically mentioned title in this regard. Business organizations require "a method by which transfers can be made legally secure [while eliminating] the need of constantly testing the title of the transferor."(19) These concepts serve to solve the practical problems that foster economic development.
Yet Weber did not view the relationship between law and capitalism as merely the former affecting the latter. He also saw the economic order affecting law. As Trubek explains, "Legalism supported the development of capitalism by providing a stable and predictable atmosphere: capitalism encouraged legalism because the bourgeoisie were aware of their own need for this type of governmental structure."(20) Legalism and capitalism could be both cause and effect for each other. Furthermore, the specific relationship between law and development seems to vary with the given historical case.
Weber's conclusions regarding both the relationship between law and capitalism, as well as what legalism requires, provide a framework for the study of law's role in social change on a comparative basis. In the context of the emergence of Thai concepts of title, Weberian analysis offers several clear propositions. The first is that there is a relationship between the development of formally rational law and capitalist development. Formally rational law is characterized, in the sociological sense, by (1) the emergence of formal justice, composed of strict procedures, and the use of legal reasoning applied through logical procedures to the facts of the case, and (2) the differentiation of legal from purely political institutions, as well as the differentiation within the legal profession of various functions. The second proposition is that formal justice can have an impact on capitalism in two ways. The first is the general effect of predictability and calculability that formal justice provides capitalists. The second is the proclivity for a formal system of justice to solve practical legal problems through the elaboration of specific legal concepts, such as title to land, which function to foster capitalist development. The third proposition is that a causal relationship exists between the development of formally rational law and capitalism but that the exact relationship is problematic, and may depend on the specific historic context. The second and third chapters of this paper will explore these propositions on the basis of Thai legal and economic development.
(10) Many analysts have criticized modern sociologists who have followed Weber's lead in using ideal types as a framework for analyzing development in Third World countries. See Portes, "Modernity and Development: A Critique" in Studies in Comparative International Development 3 (1973). It is interesting that most of the new sociological literature on development has been based on structural or Marxian analysis of underdevelopment.
(11) See A. Kronman, supra note 5, at 76-79. I draw heavily here on Kronman's description of Weber's typology.
(12) See Trubek, supra note 5, at 927-933. Trubek claims that a central contradiction exist in the discussion of "the logical interpretation of meaning" between Weber as a positivist and as a "precursor of what we today call 'critical legal studies'." While an interesting view, perhaps the delphic qualities of Weber's writings have led Trubek to impose his own ideas, sympathetic to a Critical Legal Studies perspective, onto Weber.
(13) Trubek, "Max Weber and the Rise of Capitalism," 3 Wis. L. Rev. 720, 724 (1972).
(14) A. Kronman, supra note 5, at 87-92 and 120-124; Trubek, supra note 13, at 746.
(15) Ewing, "Formal Justice and the Spirit of Capitalism: Max Weber's Sociology of Law," 21 Law and Society Rev. 489 (1987).
(16) Id. at 489 (emphasis added).
(17) See A. Kronman, supra note 5, at 126. Kronman argues that there are two grounds on which Weber's agnosticism can be defended. The first is that Weber is essentially pointing out the inadequacy of any theory that attempts to account for the interaction between law and capitalism. A second ground is that Weber essentially is arguing a historisist position in which the causal interaction between law and capitalism varies with the historical context. See id. at 129-130.
(18) Id. at 125.
(19) Quoted in id. at 125.
(20) Trubek, supra note 13, at 736-37. Note that the second portion of this quote is entirely consistent with a Marxian analysis of social change.