Max Weber's Conception of Law

Max Weber’s Conception of Law
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Introduction
Max Weber, who was born in 1864, is considered to be among the pioneers of modern sociology. After completing high school, he proceeded to study law, philosophy, history and economics at Heidelberg University and then joined the military. He however resigned from the military and resumed his studies at Berlin University. He was awarded Ph. D In 1889 after passing his examination and completing a thesis project. His sociological concepts were developed while he was an editor of a prominent science journal. As an editor of this journal, he was requested to address the congress of arts and sciences where he expressed that America is a country that lacks ethical and moral jurisdiction. According to him, this aspect was because the American people had neglected religion as a dogma for moral foundation (Kalberg, 2002).
The essays he compiled afterwards such as The Protestant Ethic and the Spirit of Capitalism further supported this ideology. The works, published in 1905 discussed the idea that the present capitalism could be attributed to Protestantism. His works and writings are considered to be the basis of modern sociology. They have also influenced many aspects of the modern life such as in economics, politics and religion (Weigert, 1991).
Max Weber’s Typology of Law
The following table illustrates Weber’s typology of law
Formal RationalitySubstantive rationalitya)The English Common Law
b) Logical
German Civil Law
Global codified legal systems
Socialist regimes
Talmud
Church LawFormal irrationalitySubstantive irrationalityA prophetic revelation
Oracle
Lay MagistratesKadi
Dictator
Substantive irrationality:
Under this situation, legal decisions are deliberated on the basis of strong factors of emotional, political or ethical principles rather than common norms. Lawmakers and “law finders” deal with certain legal issues subjectively basing their judgment on the direction of their conscience and emotional valuations. Examples are derived from legal deliberations by a dictator or a Muslim kadi. These people execute justice without regarding general laws but assess the facts of individual cases (Weber, 1978: 976-8).
According to Weber, certain aspects of the English common law are irrational. In particular, the role of the jury in determining facts, and making legal decisions that are based in their individual emotions, instinct and persuasion rather than logical thinking. Weber observed that neither the kadi nor common laws at that time executed justice without being guided with broader values. Values in this case could be based on legal, religious or other principles. The judicial legal system needs some level of consistency that depicts prudence. Another conception is that no two cases can be similar; hence, precedent cannot be utilized to make ...