Conclusion

This concluding chapter summarizes Max Weber's theory of legal rationalization. In the beginning is the word, in the form of the charismatic revelation of the law by legal prophets. Alongside Moses, Muhammad acts as an example to illustrate this, since Islamic holy law is a ‘book religion’ which was inspired prophetically. It is decisive for the further development of the law towards rationalization that a ‘secular law’, detached from the ‘holy commandments’ and from holy law, arises to settle disputes involving ‘conflicts of interest indifferent to religion’ and also that there is a successful ‘separation between ethics and law’. If secular law has separated itself from holy law, then two relatively autonomous paths of development become apparent: towards a ‘rational and formal law which is either more logical or more empirical in nature’, as could be observed, on the one hand, in continental Europe and, on the other, in Rome and in England. Instructively, Weber distils each of these two possibilities down to two contrasting ideal-types: theoretical legal education in universities (with an entirely novel carrier stratum of legal academics) and empirical craft-like legal training by practitioners (legal honoratiores, attorneys). One strand of development leads towards a ‘system’, and the other towards casuistry.

Weber’s Aims in the ‘Sociology of Law’

This chapter discusses Max Weber's aims in the ‘Sociology of Law’. Before exploring in detail Weber's ‘Sociology of Law’, its essential assumptions and conclusions, as well as its conceptual apparatus, it is necessary to outline briefly its two opening sections. In the first section, established areas of the law are treated in brief, such as public law, private law, criminal law, procedural law, and substantive law. In the second section, the most important forms/categories of subjective law are presented in overview, including the classical civil rights and liberties. Weber also provides an overview of contract and the development of freedom of contract. For all their heterogeneity, Weber's remarks in his ‘Sociology of Law’ can be brought together into a historically grounded ‘theory’ of the rationalization of the law and its developmental conditions. This theory of the rationalization of the law has various basic ‘building blocks’. First and foremost, it requires a standard measure for the level of rationalization that has been reached. In a process of rationalization, ideal-typical stages of development are required. Weber also pays particular attention to two basic types of legal training or legal teaching: first, the ‘craft’ approach in the sense of the ‘empirically’ driven training of lawyers; and second, university education organized in a theoretical and academic manner.

Developmental Stages of the Law and of the Legal Process

This chapter provides an overview of Max Weber's ideal-typical developmental stages of the law and of the legal process. These stages include charismatic revelation by law prophets; empirical lawmaking and lawfinding by legal honoratiores; imposition of law by the secular imperium and theocratic power; and specialist administration of justice by legally educated jurists, on the basis of scholarly and formally logical education. Here it is a question of developments which ultimately proceed in the West in the direction of rational law, if not always in a linear way, and in which Weber particularly emphasizes, if not overstates, the ‘role’ of logic. For one thing, the development of rational law can have both a material and a formal character; for another, the stage of highest rationality, where Weber's ideal-typical ‘system’ of law is to be found, has, it must be admitted, never actually been reached in history. Moreover, it is important to remember that Weber ‘did not want to write legal history’ in his ‘Sociology of Law’. Rather, his discussion of legal history always has to be read in the light of his cognitive interest, so that ‘when integrated into a sociological or theoretical system of the law, historical detail will always be a little different to what it was before’.

Terminological Discussion

This chapter distinguishes between juristic and sociological definitions of law and validity. If one is to follow Max Weber, then one can, on the one hand ‘interrogate the meaning of a particular legal proposition’ in a dogmatic manner; in other words, one can ask what a ‘correct’ judicial judgement would look like, if one is to apply the relevant legal proposition as a ‘norm conceived in general and hypothetical terms’. On the other hand, one can also submit this legal proposition to sociological consideration, proceeding on the assumption that when the preconditions for this legal proposition (the facts of the case) are met, then there is the ‘real probability’ (chance) that ‘real consequences of a particular nature will arise’. This means, on one hand, that there is a chance that the norm ‘intrinsic’ to the legal proposition will be respected and observed but, on another, that this norm ‘may only be valid to a certain degree’. Using a pointed but memorable formulation, Weber makes clear that the two different perspectives also have to be applied to the idea of validity: ‘The validity of a legal proposition in the sociological sense is an empirical instance of factual probability; validity in a juristic sense is a logical ought’. The chapter then looks at Weber's notions of order and the legal order.

Introduction

This introductory chapter provides an overview of Max Weber's works. Taking a comparative approach that spans legal systems both inside and outside Western societal formations, Weber pursues above all the developmental conditions which ultimately led to the rational form of law in the West, conceiving this development as a process of rationalization. Before using Weber's Rechtssoziologie (Sociology of Law)—or, following the new edition of the text in the Max Weber complete works, the Entwicklungsbedingungen des Rechts (Developmental Conditions of the Law)—as the basis for a detailed consideration of the process of legal rationalization, it is necessary to explore what Weber understood by the law and the legal system and how he defined these terms. It is also important to clarify his distinction between juristic and sociological conceptions of law and validity. The chapter then considers the date when Weber is presumed to have written his texts. The precise identification and collation of groups of texts shed light not only on Weber's methods, but also on the history of his oeuvre.