Formal and Substantive Rationality in American Law: a Weberian Perspective
| Published date | 01 March 1993 |
| Date | 01 March 1993 |
| Author | Ronen Shamir |
| DOI | 10.1177/096466399300200103 |
| Subject Matter | Articles |
FORMAL AND SUBSTANTIVE
RATIONALITY IN AMERICAN
LAW: A
WEBERIAN
PERSPECTIVE
RONEN
SHAMIR
University of Tel Aviv, Israel
INTRODUCTION
N
THIS essay I interpret the rise of American legal realism with a Weberian
perspective in mind. The conclusion of this exercise, which I intend to clarify
in
the course of this article, is that (a) Weber’s conceptual treatment of law in
capitalist society provides useful analytic tools for understanding the transform-
ations of American law, although (b), Weber’s general theory of a progressive
evolution of law in the direction of a formally-rational system is too narrowly
conditioned by the particular legal-political reality that existed in turn-of-the-
century Germany.
I show that Weber’s concepts of formally- and substantively-rational law and
his analysis of the tension between the two provide an analytic framework for
studying the political conditions that facilitate the rise and decline of given legal
orders. Also, I show that Weber’s analysis of the relationship between legal
modes of thought and the internal organization of the legal profession (that is, the
relationship between law and its carriers) leads to an analytic orientation which
reads legal history not only as a struggle of ideas but also as a struggle among
segments of the legal profession in search for influence and power.
°’
Applied to the case of American legal realism, I develop four specific
propositions. First, the rise of legal realism marked a transition from a (false)
45-
46
formally-rational legal order to a substantively-rational one. Second, the realist
movement
in law might have remained marginal to mainstream legal thought if
not for the ascendancy of the reform-minded New Deal administration in the
1930s. The ability of the realists to influence and shape the legal agenda of the
state during the 1930s had to do with the particular political conditions that
existed in this period of transition. Third, the struggle of ideas about the nature
and sources of law which accompanied the ascendancy of legal realism was also a
manifestation of a struggle for intellectual hegemony and authority of expertise
between the corporate bar (defending the prerogatives of a common-law based
judicial system) and academic law professors. Finally, I argue that legal realism as
a legal-political force retreated and that formally-rational law reappeared as the
New
Deal administration grew beyond its ’experimental’ stage.
These propositions entail a qualification of Weber’s general theory of law. For
Weber, formally-rational law could only develop where two conditions existed:
first, a codified system of written laws (a particular political configuration), and,
second, a well established group of free-floating academic legal experts who
could develop law as an autonomous science without having to consider
changing political and economic pressures (a particular professional configur-
ation).
In contrast, I argue that at least in the United States, formally-rational law was
developed from within a court-centered system which relied on analogies and
precedents, rather than statutory rules, as a basis for its ’rationalization’. In this
configuration, codified law was considered as the ultimate embodiment of
substantively-rational law. The enemies of statutory legislation viewed it as a
manifestation of arbitrary considerations, as the invasion and corruption of
autonomous law, as the enemy of formal rationality. The advocates of the
transition from a court-centered system to a system that relied more heavily on
statutory legislation, on the other hand, advanced the consciously articulated
claim that an enlightened law should be more responsive to social and political
considerations and less self-protective by an illusion of an autonomous system of
logical rules.
In short, I try to show that the legal realists led a movement in the direction of a
’German’ legal system: one that relied on statutory rules, enacted by a strong
federal state, and developed by academic legal experts at the direct and indirect
service of the state. Unlike Weber’s model, this movement was conceived by its
carriers as a shift away from, rather than towards, formally-rational law.
The organization of this essay is as follows: first I briefly outline the general
Weberian propositions concerning the distinction between formally-rational
and substantively-rational law, the tensions that are inherent in both, and the
relationship between legal ideas and their social carriers within the legal
profession. Second, I employ the Weberian vocabulary to describe the rise of
American classical legal thought as an emergent court-centered formally-rational
law. Third, I discuss the relative marginality of American academics in a system
that assigned appellate courts, and an autonomous practising bar, a leading role in
legal development. With this theoretical and historical background in mind, I
move to discuss the legal realist challenge to the hegemony of courts. After
47
briefly describing the basic positions of the realists, I situate the realist challenge
in the context of the pragmatic politics of the New Deal, and discuss it as an
’academic revolt’. Finally, I end the essay by elaborating on the relationship
between legal and political changes and argue for a model of change which,
following Weber, is bound to result in a reemergence of formally-rational law.
THE WEBERIAN CONCEPT OF FORMALLY-RATIONAL LAW
A formally-rational law, writes Weber, ’represents an integration of all
analytically derived legal propositions in such a way that they constitute a
;
logically clear, internally consistent, and, at least in theory, gapless system of
rules’ (1978: 656). One of the most important attributes of such a system is its
closedness: legal decisions are rational to the extent that they are internally
consistent and theoretically predictable, and formal to the extent that the judge
does not have to look beyond the boundaries of the ’gapless’ legal system in order
to solve a given legal problem. The formality of a given legal system is thus also a
measure of its ’systemic autonomy’ (Trubek, 1972: 729) and its immunity from
external ’interferences’.
A
formally-rational legal system, says Weber, may be of two types. First, there
is the rigid type in which process is preferred over substance and disputes are
decided on the basis of some predetermined formal legal criterion (‘the utterance
of certain words, the execution of a signature’ and so forth [Weber, 1978: 657]).
A
legal system that only adheres to this type of formalism essentially constructs
law as a ’second-order normative structure; the real source of values comes not
from the &dquo;science&dquo; of law but from the unrestrained choices of individuals’
(Trubek, 1986: 588).
This rigidity, however is commonly softened by what Weber calls ’logical
rationality’ (1978:657). This logical rationality provides for a mechanism of
law-finding in which the ’legally relevant characteristics of the facts are disclosed
through the logical analysis of meaning, and where, accordingly, definitely fixed
legal concepts in the form of highly abstract rules are formulated and applied’
(1978: 657). Thus, formally-rational law can give rise to general doctrines of, say,
reasonableness, causation and consideration, which are consistently applied to
concrete cases.
Either in its ’rigid’ or ’soft’ form, however, formalism is first and foremost an
expression of jurisdiction : the creation of boundaries within which decisions over
issues of substance are protected and legitimized by pointing at their consistency
with formal methods (Stinchcombe, 1991). Formally-rational law, in other
words, is based on a deliberate exclusion of ’irrelevant substantive noise’ from
entering the decision-making process.
The resistance of formally-rational law to considerations of substance is
contrasted with other ideal types of law. In particular, Weber speaks of
substantively-rational law, in which
the decision of
...
legal problems is influenced by norms different from those
obtained through logical generalization of abstract interpretations of meaning. The
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norms to which substantive rationality accords predominance include ethical
imperatives, utilitarian and other expediential rules, and political maxims, all of
which diverge from the formalism [of the former]. (1978: 657)’
The relationship and tension between formal and substantive principles of
justice occupied much of Weber’s attention. Throughout his work Weber
emphasized that the intrinsic nature of formally-rational law created an
’insoluble’ and ’inevitable conflict’ between formal legal meaning and utilitarian
and ethical expectations (1978: 319, 811, 885). While formal rationality advanced
in the name of greater consistency and predictability and hence in the name of
greater freedom, it also created conditions of coercion that denied the realization
of this very freedom. Formal justice, Weber stated, ’infringes upon the ideals of
substantive justice’ (1978: 813):
Formal justice guarantees the maximum freedom for the interested parties to
represent their formal legal interests. But because of the unequal distribution of
economic power, which the system of formal justice legalizes, this very freedom
must time and again produce consequences which are contrary to the substantive
postulates of religious ethics or of political expediency. (Weber, 1978: 812)
It seems that Weber not only considered this tension as an inevitable result of a
historical...
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