Max Weber on Economy and Society (Routledge Revivals) by Robert Holton Bryan S. Turner

Author:Robert Holton, Bryan S. Turner [Robert Holton, Bryan S. Turner]
Language: eng
Format: epub
ISBN: 9780415611176
Barnesnoble:
Publisher: Taylor & Francis
Published: 2010-10-22T00:00:00+00:00

WEBER AND THE SOCIOLOGY OF LAW

My argument is that the major issues in contemporary sociology of law were all pre-figured in the unresolved difficulties of Weber’s attempt to specify the relationship between law and capitalism. It has been argued with some credibility that Weber’s sociology of law is the core of Weberian sociology (Parsons 1971; Kronman 1983). Weber’s sociology of law was in part a critique of the romanticism of the German historical school of law and stood in opposition to the notion that law is an organic expression of the community of Folk Mind (Brand 1982). Weber was also critical of what is now known as an instrumentalist view of law as an expression of class interest, but he was also hostile to the idealism of Stammler (Weber 1977). It is, however, possible to state the central aspects of Weber’s theory in a number of basic propositions. The content and form of law cannot be wholly explained by reference to the class interest of the dominant class, because law, especially formal-rational law, has an immanent logic. The nature of law is partly determined by the form of the professional training of lawyers, who may develop interests of their own as a professional group which do not entirely coincide with those of capitalists. A system of formal-rational law is the most appropriate system for rational capitalism, which requires predictability and stability, especially in the administrative infrastructure and in the regulation of economic contracts. However, it is also recognized that historically capitalism can operate under a variety of systems of law.

It is well known that Weber’s account of rational law in relation to the development of capitalist society is difficult to reconcile with the form and development of English case-law. This has been referred to as the famous ‘England problem’ (Trubek 1972). It is also important to keep in mind Weber’s argument that in England the legal process was more controlled by the class interest of judges than in any other society (Corrigan and Sayer 1985:153ff). There may also be a parallel ‘Scotland problem’, in that Scots law was influenced by the Roman law tradition, and thus in Weber’s perspective more compatible with capitalist economic development. The economic backwardness of Scotland may be regarded, as a consequence, as something of an empirical challenge to Weber’s thesis. Of course, the Scottish case as a whole is of special relevance to Weber’s Protestant ethic thesis, given the early and intensive development of the Calvinistic reformation in Scotland, leaving England more predominantly Anglican at its religio-cultural core (Corrigan and Sayer 1985; Marshall 1980). It can be argued that England achieved capitalist development despite rather than because of its legal system, which approximated the irrationality of qadi-justice in terms of an arbitrary system of case-law.

There appear to be three conventional solutions in the sociological literature to the so-called ‘England problem’. It is possible to suggest that English law was suitable for capitalist conditions, because there was an important identity of interests, particularly class interests, between common-law judges and the English bourgeois class.

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