Max Weber's Legal Formalism and the Role of Social Justice

Legal Formalism and Disillusioned Realism in Max Weber
Author(s): David Kettler and Volker Meja

Source: Polity, Vol. 28, No. 3 (Spring, 1996), pp. 307-331
Published by: The University of Chicago Press
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Legal Formalism and Disillusioned
Realism in Max Weber*
David Kettler
Bard College
Volker Meja
Memorial University of Newfoundland
Max Weber's thesis of the vital link between formal legal rationality
and civilized power rests on considerations of prudence that remain
compelling. Yet his resignation to injustice as part of an undifferen-
tiated tragedy of existence goes too far in ignoring issues of social
justice and democracy. This article seeks a more adequate approach
by first explicating Weber's approach through his own discussion of
Sancho Panza as exemplar of the hazards of substantive justice and
then suggesting how to move beyond Weber's conclusions by taking
up Judith Shklar's suggestions about how a democratic politics of
consent and dissent can simultaneously heed injustice and maintain the
rule of law.
David Kettler is Professor Emeritus in Political Studies at Trent

University and Scholar in Residence at the Bard Center of Bard
College. His related works include "Works Community and Workers'
Organizations: A Central Problem in Weimar Labor Law," Economy
and Society, 13 (August 1984), "Sociological Classics and the Con-
temporary State of the Law, " Canadian Journal of Sociology, 9
(1984), and the coauthored "American and Canadian Labor Law
Regimes and the Reflexive Law Approach, " in RalfRagowski and
Tom Wilthagen, eds., Reflexive Labor Law (1994).
*An important theme in this article was originally presented by David Kettler to a con-
ference on "The Barbarism of Reason: Max Weber and Post-Enlightenment Political
Thought" at York University in Toronto in 1988 and later elaborated in a methodological
essay (with Volker Meja) in " 'Sancho Pansa als Statthalter.' Max Weber und das Problem
der materialen Gerechtigkeit," in Max Webers Wissenschaftslehre. Interpretation und
Kritik, ed. Heinz Zipprian and Gerhard Wagner (Frankfurt: Suhrkamp, 1994), pp. 713-54.
Reoriented toward problems in political theory, the present paper has benefitted from the
criticism of Peter Baehr and Zygmunt Bauman.
Polity Volume
Polity XX VHI, Number
VolumeXXVIII, Number3 3 Spring 1996
Spring 1996
308 Legal Formalism in Max Weber
Volker Meja is Professor of Sociology at Memorial University of

Newfoundland. He is co-editor of Modern German Sociology (1989)
and has collaborated with Kettler on several works on Karl Mann-
heim, most recently Karl Mannheim and the Crisis of Liberalism: The
Secret of These New Times (1995).
Realism is a matter of breadth, not rigor. Reality itself is broad,

multiform, contradictory. History makes and unmakes ideals.'
To take, with Cervantes, the world as ambiguity, to be obliged to

face not a single absolute truth but a welter of contradictory truths
... to have as one's only certainty the wisdom of uncertainty,
requires [heroic] courage.2
In 1925 Karl Mannheim observed with cool respect that Max Weber rep-
resents an obsolete "disillusioned realism." This perspective, according
to Mannheim, lets Weber see through the illusions of contending social
groups, including his own, but it disables him from acknowledging the
promise palpable to the rising generation.3 The dissolution of the auton-
omous individual as rational subject of knowledge, sociation, and action
that Weber feared, Mannheim regards as a crisis only for individualist
liberalism. His new generation sensed a post-liberal "synthesis" emerg-
ing out of the dialectical, institution-building discourse of Weimar Ger-
many.4 The sociologically aware, dynamic Weimar polity, free to experi-
ment in the organizing and directing of social life, transcends the formal
legality and hierarchical bureaucracy of Weber's rationalized state.
Weber's pessimistic maneuvering between the converging dooms of
hyper-rationalization and irrational eruption seems old-fashioned to
Mannheim.
1. Bertolt Brecht, "Weite und Vielfalt der realistischen Schreibweise," Schriften zur
Literaturund Kunst. 1934 bis 1938 (Frankfurt: Suhrkamp, 1967), p. 171. In context, Brecht
resists the doctrine of socialist realism decreed in Moscow and insists on the "realism" of
Swift, Cervantes, and Hasek.
2. Milan Kundera, "The Depreciated Legacy of Cervantes," in The Art of the Novel
(London and Boston: Faber and Faber, 1988), pp. 6-7.
3. Karl Mannheim, Conservatism. A Contribution to the Sociology of Knowledge,
trans. David Kettler and Volker Meja, ed. David Kettler, Volker Meja, and Nico Stehr
(London and New York: Routledge & Kegan Paul, [1925] 1986), pp. 175-80.
4. David Kettler and Volker Meja, Karl Mannheim and the Crisis of Liberalism. The
Secret of These New Times (New Brunswick and London: Transaction, 1995), pp. 87-105.
David Kettler & Volker Meja 309
Yet it is Mannheim's progressivist hopes that are not persuasive today.5

"Disillusioned realism" no longer stands self-condemned as willful
insensitivity to salutary change. Just as Mannheim's old hopes for a new
practical science of politics are instructive about the recent past, so the
change in function of Mannheim's apt epithet is a good starting point for
reassessing the present-day bearing of Weber's political thought.
Our aims are, first, to show that Max Weber's thesis of the vital link
between legal formal rationality and civilized power rests on considera-
tions that outlive his legal analysis; and, second, to move toward a "dis-
illusioned realism" that attends more clearly than Weber to issues of
social justice and democracy. Our interpretive approach is unconven-
tional. We take our cue from a reference to Sancho Panza and suggest
that Weber's invocation of Cervantes's disrupted universe is more than a
conventional rhetorical gesture. Yet we find more survival power and
humanity in Sancho than Weber is prepared to credit. Weber is right to
fear arbitrary, incompetent, or ideological adjudication from the "sub-
stantive rationality" parodied by Cervantes, but he is mistaken when, in
resignation, he relates the injustices of formalized law to the undifferen-
tiated tragedy of existence in an ethically disenchanted universe. A demo-
cratic "politics of consent and dissent" can pay heed to injustices, we
think, without compromising the rule of law.6
After a period of neglect, many jurists, sociologists, and political theo-
rists have been reassessing Max Weber's distinction between formal and
substantive rationality in law. Few would disagree that since Weber's
death there has been a dramatic expansion of substantive adjudication,
as welfare state regulations and rights bring purposive principles and
informal procedures into prominence, overshadowing the systematized
norms and technical litigation of Weber's formal rationality model.7
Recent restructuring of welfare programs and regulatory regimes have
not reversed the pattern of deformalization that scholars have debated
for a generation. Christian Joerges sums up the professional consensus:
5. See Jeffrey C. Alexander and Piotr Sztompka, eds., After Progress. Movements,
Forces and Ideas at the End of the Twentieth Century (Boston: Unwin Hyman, 1990).
6. Judith N. Shklar, The Faces of Injustice (New Haven and London: Yale University
Press, 1990), p. 122; see Peter Breiner, Max Weber and Democratic Politics (Ithaca: Cor-
nell University Press, 1995). Breiner's interesting attempt to make his critique of Weber
bear on the advocacy of participatory democracy bypasses the issues of rights and tribunal-
ity that figure importantly in the approach we share with Shklar.
7. We use "welfare state" as short-hand for the structural changes often classed under
the "regulatory" or "administrative" state. See Niklas Luhmann, Political Theory in the
Welfare State (Berlin and New York: De Gruyter, 1990); and Gunther Teubner, ed., Dilem-
mas of Law in the Welfare State (Berlin and New York: Walter de Gruyter, 1985).
The deformalization of civil law by the actors that Max Weber

addressed as "interested parties" and "legal ideologists" has to be
accepted as an irreversible process. The boundaries between legal
considerations and ethical, political and economic ones . . . have
become more porous.8
There is no agreement, however, about whether deformalization en-

dangers the legal order at the core of constitutional regimes, as Weber
thought. An important current, influenced by the American pragmatist
"revolt against formalism," traces the new state of the law to realistic
demystification of jurisprudence and has a concomitant confidence in
developmental adaptation.9 Friedrich Hayek and his followers, on the
other hand, go far beyond Weber in their alarm. For Hayek, present
trends point to calamitous despotism unless the "spontaneous social
order" epitomized in the market is freed from regulatory disruption.
Law, in its proper sense, is coincident with methods that place the highest
value on impersonality and predictability. The private law of property
and contracts, as it has been juristically distilled from the common law,
best fits these methodological standards. Substantialization arises from
the quest for "social justice," Hayek contends, and this objective is a
dangerous chimera.10 Other commentators unsettled by legal develop-
ments since the inception of the welfare state do not find Hayek's
appraisal sufficiently discriminating. Although they worry more than the
pragmatists do about the institutional pressures exerted by changes in
legality, they sympathize with the public needs and egalitarian values that
spur such substantive rationalization. 1
Two types of analysis have emerged. We consider first a complex of
procedurally oriented approaches that emphasize quasi-legalized negoti-
8. Christian Joerges, "Die Uberarbeitung des BGB-Schuldrechts, die Sonderprivat-

rechte und die Unbestimmtheit des Rechts," Kritische Justiz, 20 (1987): 181; see also
Joachim Savelsberg, "Law That Does Not Fit Society: Sentencing Guidelines as a Neo-
classical Reaction to the Dilemmas of Substantivized Law," American Journal of Sociol-
ogy, 97 (March 1992): 1346-81.
9. Lawrence M. Friedman, The Legal System: A Social Science Perspective (New York:
Simon and Schuster, 1975); Lawrence M. Friedman, Total Justice (New York: Russell
Sage, 1985); Phillip Nonet and Philip Selmick, Law and Society in Transition (New York,
Hagerstown, San Francisco, London: Harper Colophon Books, 1978); Morton White,
Social Thought in America: The Revolt against Formalism (New York: Viking, 1949).
10. Friedrich Hayek, Law, Legislation and Liberty, 3 vols. (Chicago: University of
Chicago Press, 1973, 1976, 1979).
11. See, for example, Joerges's rejection of "the pessimistic interpretation of this devel-
opment as an irreparable irrational remoralization of law," and his critique of "one-sided
reformalization efforts"; Kritische Justiz, p. 182.
ation processes and agreements, at the expense of the formal, judge-

centered design. They explore novel social steering procedures for
managing the conflicting claims of formal and substantive law in multi-
form social domains.12 Second, we discuss common features of
approaches that acknowledge the substantive turn in contemporary law,
but propose structures and strategies to protect against politicization of
judgment. They rely on the distinction between the discursive attributes
of legal reasoning and the strategic rhetoric of political conflict, and they
contend that the retreat from formalistic positivist methods in law
enhances opportunities for moral reasoning in democratic government.13
We designate the former class of approaches as the recourse to con-
stituted self-regulation and the second as expansion of substantive
righteousness.
Considering both approaches through the prism of Weber's disillu-
sioned realism about power and rationality shows the political character
of legal problems. It does not, however, vindicate the reduction of law to
politics. The challenge is to understand the complementarities between
legal institutions and other political processes, and to develop diverse
means of managing the tensions between them. Judith Shklar's political
theory approach to law offers a promising direction.14 The constitutional
politics of the rule of law is to be tightly drawn, providing the minimum
needed for civic freedom, but the normal democratic politics must be
further opened to complaints against injustice-however problematic
and irreducible to a single formula of justice-and to the political pro-
cess of adjusting the deep conflicts these complaints represent. From this
perspective, the question is whether law and other modes of public action
can be reformed to advance democratically sanctioned public objectives
12. Gunther Teubner, Dilemmas of Law in the Welfare State; Gunther Teubner, ed.,
Recht als autopoietisches System (Frankfurt: Suhrkamp, 1985); Riidiger Voigt, ed., Limits
of Legal Regulation-Grenzen rechtlicher Steuerung (Pfaffenheimer: Centaurus Verlag,
1989).
13. David M. Beatty, Putting the Charter to Work (Kingston and Montreal: McGill-
Queen's University Press, 1987); Ronald Dworkin, Taking Rights Seriously (Cambridge,
MA: Harvard University Press, 1979); Ronald Dworkin, A Matter of Principle (Cam-
bridge, MA: Harvard University Press, 1985); Ronald Dworkin, Law's Empire (Cam-
bridge, MA: Belknap Press, 1986); David Dyzenhaus, "The New Positivists," University
of Toronto Law Journal, 39 (1989): 361-79.
14. Judith N. Shklar, Legalism: Laws, Morals, and Political Trials (Cambridge, MA
and London: Harvard University Press, [1964] 1986); Judith N. Shklar, "Political Theory
and the Rule of Law," in The Rule of Law: Ideal or Ideology?, ed. Allan C. Hutchinson
and Patrick Monahan (Toronto, Calgary, and Vancouver: Carswell, 1987); Judith N.
Shklar, The Faces of Injustice (New Haven and London: Yale University Press, 1990).
without over-expanding law's empire to the point where it paradoxically

threatens the integrity of law itself.15
Our principal claim is that Weber's cautions against substantialist legal
approaches can contribute to current debates, although his model of
formally rational law misses many contemporary concerns. However,
appreciating this contribution requires an interpretation which recog-
nizes that Weber interlayers a prudential assessment of formal and sub-
stantive legal rationality in his systematic explication of formal rational-
ity. Weber's strictures against attempts to ground values on science are
consistent with the presence of an immanent dimension of practical
advice in his writings.16
I. Weber's Critique of Substantive Rationality in Law
In an exemplary but one-sided reconstruction, Anthony Kronman

imputes a systematic design to Weber, centered on an homology of the
institutions constitutive of modern rationalized society-from the great
legal codes through a formalist jurisprudence on positivist principles to
the other central features of capitalist markets and bureaucratized
states.17 These social dimensions, in turn, harmonize with Weber's con-
ceptions of social-scientific method, Kronman argues, and with his com-
mitment to an ethic of responsible individual choice. Modern law only
makes sense, in this model, when it is formally rational. This requires,
first, that adjudication is efficient and regular in its autonomous pro-
ceedings and, second, that decisions are logically referable to authori-
15. That law has a distinctive "integrity" worth protecting is itself a claim contested by
proponents of Critical Legal Studies. See below. Apart from that challenge, the nature of
the attributes rhetorically invoked by such an expression is controversial. See Christian
Joerges and David M. Trubek, eds., Critical Legal Thought: A German-American Debate
(Baden-Baden: Nomos, 1989); and Jiirgen Habermas, Faktizitat und Geltung. Beitrage zur
Diskurstheorie des Rechts und des demokratischen Rechtsstaats (Frankfurt: Suhrkamp,
1992).
16. For an ingenious technical argument in support of this contention, see Peter Breiner,
Max Weber and Democratic Politics (Ithaca: Cornell University Press, 1995), especially
Introduction and Ch. 1-2. Our own critical approach is indebted to Walter J. Ong's insights
into the overlays of sensitivity to "voice and person" in impersonal scientific texts, a con-
ception obviously applicable to Weber's political and legal thought. See Walter J. Ong, The
Presence of the Word (New Haven and London: Yale University Press, 1967), pp. 192 ff.
See also David Kettler and Volker Meja, "'Sancho Pansa als Statthalter,' " in Max
Webers Wissenschaftslehre, ed. Gerhard Wagner and Heinz Zipprian (Frankfurt: Suhr-
kamp, 1994), pp. 713-54.
17. Anthony Kronman, Max Weber (Stanford: Stanford University Press, 1983).
tative normative rationales transparent to trained professionals.18 But

the patterned social interactions historically differentiated as legal
systems cannot by their inner rationality provide more than equal and
reliable security for socially generated unequal expectations, as well as
impartial mechanisms for authoritative conflict-resolution among sub-
jectively defined and unequally strong interests. Adjudication cannot
itself be a venue for remedying the social injustices that attend un-
deserved, adventitiously-grounded privileges, powers, and rewards.
The rationality of Kronman's Weber offers cold comfort to those who
expect the law to remedy injustices as they are suffered by concrete indi-
viduals, as Weber himself was aware. When he responds to opponents of
the model, especially in its practical implementation, Weber acknowl-
edges the popularity and respects the ingenuity of their pleadings. Yet,
on balance, he thinks these advocates express a vain yearning for a law
whose rulings are experienced as substantively just by everyone touched
by them. Proponents of such substantive rationality, Weber believes,
wish for adjudication magically guided by evaluative meanings inherent
in the cases brought for judgment. Rational scrutiny finds this concep-
tion incoherent in a secularized and conflict-ridden society.
Without moral indifference to the considerations that generate ten-
dencies against formal rationality in law, Weber rejects all juristic pro-
18. Max Weber, Economy and Society: An Outline of Interpretive Sociology, ed.
Guenther Roth and Claus Wittich (New York: Bedminster Press, 1968), pp. 812-13. Kron-
man makes the disjunction between formal and substantive rationality decisive, neglecting
Weber's alternative usage of "formal rationality" in a developmental sequence including
traditional and charismatic law; the distinction in this form is broad enough to incorporate
conceptions less purely volitionist or system-oriented. See Harold J. Berman, Law and
Revolution (Cambridge and London: Harvard, 1983), pp. 546-56; Regina Ogorek, "Incon-
sistencies in 19th Century Legal Theory," in Critical Legal Thought, pp. 13-37. While
Kronman finds the stress on "predictability of the legal order" to be the most important
structural principle distinguishing formal from substantive rationality in law, he sees this
grounded in a normative distinction: "The difference between a substantive and formal
legal system is ... to be explained ... by a difference in their basic normative premises, the
first seeking to realize some conception of the good or scheme of distributive justice and the
second a 'relative maximum' of individual freedom" (Kronman, Max Weber, p. 95). We
use Kronman as our point of departure because he has best laid out the operative doctrine
that governs most encounters with Weber's concept. His is an excellent "theory" of the
normative distinction, in the sense in which lawyers ex officio speak of theory. The inter-
pretive problem is admittedly complicated by Weber's conception of "legal-rational" legit-
imacy, where the emphasis is on the qualities of public law and bureaucratization, not on
issues of formalism in adjudication, where jurists and bureaucrats represent contrasting
and competing social roles. See Philip Selznick, Law, Society, and Industrial Justice (New
Brunswick: Transaction Books, 1980), pp. 76-82; Habermas, Faktizitat und Geltung, pp.
90-108.
posals for substantive rationality in law. 19 Oppositional efforts, he con-

cludes, will themselves paradoxically contribute to the inevitable reduc-
tion of law to the status of a technical apparatus, a medium of orderly
control in the hands of the state, where judges can only be disinterested
technicians:
Whatever form law and legal practice may come to assume under
the impact of these various influences, it will be inevitable that, as a
result of technical and economic developments the legal ignorance
of the laity will increase. The use of jurors and similar lay judges
will not suffice to stop the growth of the technical elements in the
law and hence of its character as a specialists' domain. Inevitably
the notion must expand that the law is a rational technical appara-
tus, which is continuously transformable in the light of expediential
considerations and devoid of all sacredness of content. This fate
may be obscured by the tendency of acquiescence in the existing
law, which is growing in many ways for several reasons, but it can-
not be stayed. All of the modern sociological and philosophical
analyses, many of which are of a high scholarly value, can only
contribute to strengthen this impression, regardless of the content
of their theories concerning the nature of the law and the judicial
process.20
Thus efforts to restore substantive contents to technical legal forms must

prove self-defeating.
The argument appears rigorous, but whenever Weber sounds a pro-
phetic tone, invoking paradoxes wrought by fate, he crosses boundaries
imposed by his own ascetic methodological program.21 These are the
passages that Kronman treats as philosophically uninteresting conces-
19. Weber, Economy and Society, pp. 636-37, 731; David M. Trubek, "Reconstructing
Max Weber's Sociology of Law," Stanford Law Review, 37 (1985): 934; Kronman, Max
Weber, pp. 112-17; Joan Tronto, "Law and Modernity: The Significance of Max Weber's
Sociology of Law," Texas Law Review, 63 (1984): 565-77; Wolfgang Mommsen, Max
Weber and German Politics, 1890-1920 (Chicago and London: University of Chicago
Press, 1984), pp. 104-23. See also Max Weber, Rev. of the first volume of Phillip Lotmar,
Der Arbeitsvertrag. Nach dem Privatrecht des Deutschen Reiches. Archiv fur Sozialwissen-
schaft und Sozialpolitik, vol. 17 (1902), pp. 723-34. See David Kettler, "Sociological
Classics and the Contemporary State of the Law," Canadian Journal of Sociology, 9
(1984): 447-58.
20. Weber, Economy and Society, p. 895 (emphases added).
21. See Kronman, Max Weber, pp. 166-88. The dialectical, if not polemical, character of
this passage also alerts the reader to Weber's shift to the rhetorical mode of prudential
advice. See also Ong, The Presence of the Word.
sions to cultural fads of Weber's time. We disagree. Weber's treatment

of substantive rationality shows the unhappiness implicit in disillusioned
realism. He thinks that the costly judgment against substantive rational-
ity in the law of the courts, as in other dimensions of the "disenchanted
world," cannot be avoided. While he understands why the technical
obscurity and moral obtuseness of the law in an advanced state of formal
rationalization call forth attempts to render adjudication transparent
and ethically inspired, he thinks he can show why such attempts cannot
fulfill their promise. Weber talk of "invitability" masks a prudential
recommendation.
II. Sancho Panza as Governor
According to Weber, "substantive rationality" in law belongs to an early

stage of juristic rationalization. Its advent was an advance on trial by
combat and other judicial methods that excluded reasoned reference to
justificatory principles. But it was always deceptive. Post-traditional
legal systems claiming to articulate substantive justice have been effective
only when given force by arbitrary interventions into the administration
of justice by a political imperium, as in patrimonial domination. The
reality behind the appearance of morally rich justice, it emerges, has
been mere political justice veiled by some supervening ethical rationales
speciously propounded by that imperium. "The ideal of this type of
rational administration of justice," Weber concludes sardonically, "is
the 'cadi-justice' of the Solomonic judgments, as they are pronounced by
the hero of that legend-and by Sancho Panza as governor."22
Weber's expose seems straightforward enough, but his polemical cata-
logue of anti-heroes calls attention to itself. He is not merely demystify-
ing illusions long past. His disparagement of the "ideal" representative
of substantive rationality also deprecates advocates of such law in his
time, including jurists whose thought he respected and whose concerns
he shared. Weber's formula of dismissal thus warrants closer scrutiny. It
would be surprising if Weber passed over the moral problem posed by an
adjudication divorced from ethical premises as lightly as a first reading
of this passage suggests. His rhetorical figure indicates that here too he is
working beyond the constraints of his ascetic methodology, and his inter-
preters must find a way of following him if they want to grasp his think-
22. Max Weber, Wirtschaft und Gesellschaft. Grundriss der verstehenden Soziologie,
fifth rev. ed., ed. Johannes Winckelmann (Tubingen: J.C.B. Mohr (Paul Siebeck), 1974),
p. 486; Weber, Economy and Society, p. 845.
ing about this most interesting issue. Weber's tropes recall his ironic
balancing of religious motifs at the conclusion of "Science as Vocation,"
as well as deftly ambivalent expressions in his discussions of economic
and political rationalization.23 Despite his cautions against mixing essay-
istic and academic modes in several 1912 letters to Georg Lukacs,24
Weber complemented his scientific system building with essayistic coun-
tercurrents.
We begin with Weber's literary allusions. Linking Solomon with the

proverbially discredited arbitrariness and notorious corruption of Otto-
man local justice underlines the dismissive reference to him as "hero" of
a "legend" rather than Biblical authority. David Hume had already
expressly cited the "summary disposal of causes" by cadis as the epitome
of tyrannical lawlessness, suggestively emphasizing the explosive mixture
of absolute authority and total insecurity "contracted within a narrow
compass" that marks their rule.25 The "legendary" character of Solo-
mon as wise judge is explored in Weber's study of Judaism. Weber spec-
ulates that Solomon's subsequent proverbial reputation for judicial
wisdom rests on his construction of a law court as a preliminary move
towards coordinating the administration of justice, but he finds no evi-
dence that Solomon innovated in law. Like David, he was predominantly
a military and diplomatic innovator.26 The ironic heightening achieved
by adding Sancho Panza at first seems merely to hammer the point
home, but, on closer examination, renders it more subtle.
Weber's first two allusions epitomize the vanity of substantive ration-
alization projects of two kinds, both of them exemplified by monuments
of nineteenth-century continental law. While the Prussian Allgemeine
Landrecht, according to Weber, prates didactically about duties in the
name of enlightened paternalism but in practice subordinates legality to
arbitrariness and compulsion, the Napoleonic Code is dressed in the
bombastic principles of revolutionary natural law but contributes to
rational order only insofar as it has been scientifically extrapolated from
the voluminous technical jurisprudence of the pre-revolutionary
23. See Peter Breiner, "The Political Logic of Economics and the Economic Logic of
Modernity in Max Weber," Political Theory, 23 (February 1995): 25-47.
24. Arpad Kadarkay, Georg Lukdcs. Life, Thought, and Politics (Cambridge, MA and
Oxford: Basil Blackwell, 1991), pp. 190-91. Weber's letters also testify to his interest in
Luk,cs's literary essays and responsiveness to the form.
25. David Hume, "Of the Rise and Progress of the Arts and Sciences," in Hume,
Essays: Moral, Political and Literary (Indianapolis: Liberty Classics, [1777] 1987), p. 66.
26. Max Weber, Gesammelte Aufsatze zur Religionssoziologie. Das Antike Judentum
(Tiibingen: J.C.B. Mohr (Paul Siebeck), 1923), vol. 3, pp. 95, 124.
coutumes.27 If the Prussian Code corresponds to the cadi in petty arbi-

trariness, and if the code credited to Napoleon is the historical correlate
to Solomon's purely administrative achievement, what about Sancho
Panza? We think that Weber pointed this citation against the socially
conscious jurisprudential projects of his own times, as he encountered
them, for example, in reports on trade union rights and collective agree-
ments by the Gesellschaft fur Soziale Reform.28 Sancho's misadventures
as judge encapsulate the temptations and misjudgments that Weber per-
ceives in modern attempts to revive substantive rationality in law.
If we assume that Weber gave as careful thought to the character in
Cervantes' novel as he demonstrably did to cadis and to Solomon, he
could not ignore complications introduced by Sancho's similarity to
other Spanish baroque "wise fools" who make surprising things happen
in a "world-turned-upside-down." Sancho Panza's stint as governor of
the island of Barataria is by no means the simple fiasco that an uncon-
sidered invocation of his name would suggest. Sancho arrives there
through one of the elaborate aristocratic hoaxes that punctuate the
novel, and he is soon nastily beaten into abandoning the honor with
relief, but in the interval his justice seems cunning, apt, and popular. As
always, he appears simultaneously as clown and fountain of common-
sense shrewdness and decency. But his last case shows the helplessness
beneath this sturdy exterior, when the legal question becomes too com-
plex for the implicit substantive rationality of popular justice. He is
required to resolve a case that presents an ingenious Cretan liar paradox.
It seems that the village magistrates are charged with the enforcement of
a law which provides, first, that all passers-by approaching a particular
bridge must state their purpose in crossing, and, second, that they are
subject to immediate death by hanging for making a statement that
proves false. Sancho, as supreme judge, must pronounce law in difficult
cases. The judicial dilemma is created by a young man who says that he
aims to be hanged by the magistrates after he has crossed. Common
sense might buy the man a drink for ridiculing a preposterous or sadistic
law, but common sense might also condemn him for troubling a normal-
ly benign regime. Sancho recognizes that his earthy principles cannot
unriddle the paradox, and he dithers. First he dim-wittedly parodies
Solomon, counselling the magistrates that the man should be severed
into his truth- and lie-telling halves, with each part suitably treated.
When the advice-seekers point out that this would kill the man and
27. Weber, Economy and Society, p. 865.

28. Ursula Ratz, Sozialreform und Arbeiterschaft (Berlin: Colloquium Verlag, 1980),
pp. 88-130; see also Weber's review of Lotmar.
breach the law, he concludes without style that it is better to do good

than evil, lamely citing the authority of Don Quixote's high-flown
injunctions to be merciful.
Any country lawyer could undoubtedly have found a technical for-
mula to extricate himself from Sancho's paradox: if the law enjoins a
punishment, after all, it could hardly knowingly satisfy a desire; and the
attempt to have it do so could surely be subsumed under some trifling
misdemeanor for abuse of legal process. This capacity to escape paradox
by the sacrifice of moral depth to procedure is the strength of formal,
technical, positive law, a quality valued by commentators from Hume
and Montesquieu to Max Weber. But Sancho is left stranded with his
unserviceable popular reasonableness. After the breakdown of Sancho's
attempt to adjudicate by norms of popular justice and ordinary mean-
ings, inevitable in a world of infinite variety, we are ready for the con-
temptuous denouement of the episode, with Sancho exposed and beaten
as a fraud who lacks the warlike qualities essential to his assumed sta-
tion. As Cervantes' readers, however, we are cautioned against simply
sharing the contempt displayed by Sancho's fellow-characters. We have
been shown that Sancho is worthier than the useless aristocrats who con-
trive his misadventure and that the military gestures he fatally lacks, to
his contrived undoing, are precisely those that derange his master. He is
not fit to govern but he may well be more deserving than those who are.
Cervantes forces us to make subtler distinctions than the contrast
between legendary hero and knavish plebian. He will not let us equate the
two or dismiss either. Despite the aspirations to system that mark
Weber's rational models and that Kronman believes are in fact fulfilled
in the philosophical structure of his texts, he shares the ironic, reflexive
awareness of Cervantes. There are principled reasons for aspiring to for-
malism in law, Weber implies, notwithstanding the unjustifiable out-
comes endemic to such law. There is no triumph in this judgment, how-
ever; the sacrifice in well-doing is great. This disillusioned realism is the
sensibility that controls Weber's encounter with designs for moving
beyond formal rationality in law.
HI. Weber and Social Jurisprudence
Modern challenges to the formal rationality of law are prefigured by

Sancho's vain rebellion against legal forms. Disturbing realities similarly
incite against the insensitivities of technical law, but ameliorative legal
doctrines ultimately prove futile. First, while most jurists are satisfied
with the work of mastering the complexity of positive legal forms, even
this perspective implicates them in deviations from the formal universal-
ism of the rationalized legal order. A persistent immanent problem arises

from the importance that formal law attaches to the intentions of the
legal persons whose freely chosen interactions are to be given binding
form and, where necessary, freed from obstructions and conflict. Since
there cannot be, on these premises, any inquisition into individual
motives, the law must understand typical patterns from external signs.
This raises the imprecise but inescapable question of "good faith" in
contracts. Where a breach is to be adjudicated, the elements of agree-
ment and the conditions of fulfillment must be established with a mea-
sure of specificity that the form of the contract does not inherently pro-
vide. A plausible and commonplace juristic strategy for dealing impar-
tially with this question is to guide the interpretation of contracts by the
usages "normal" in diverse socially defined categories of contract-
dependent activities-from cartage to sheep-auctions, from authorship
to wholesale hardware. But it cannot be denied, according to Weber, that
this seemingly unavoidable strategy opens the law to particularisms of
many kinds. Converging with these technical juristical reasons is the pull
of clients on jurists: if the law is to serve their uses, it must understand
and speak to the usages of their various trades. While there is general
congruence between an immanently logical legal system and a rational-
ized market economy, according to Weber, this does not apply to the
details. And, as Weber thinks the English example shows, there is no uni-
versal causal or rational necessity in their interdependence. A rational-
ized economy will foster suitable legal supports, but the competition and
circumstantial diversities inherent in such an economy may also in prac-
tice militate against the formal rationality of law.
Weber does not resolve the difficulties, but he implies that the tensions
they generate do not pose a cumulative or dangerous threat to either the
functional requisites of economic markets or formal legal rationality.
The effects are limited because, in his view, the factors commonly
decisive for forms and degrees of legal rationalization are ultimately
political and cultural, not economic. Economically generated deviations
cannot in themselves make the difference. The bulk of the juristic work
performed, Weber thinks, shows the strength of the forces-the bureau-
cratic state, secularization, and professionalization of law-that bind
modern law to the rationalized model.
The challenges to law that Weber thinks he must oppose are fueled by
ideology and linked to political actors. Here are the Sancho Panzas.
Demands are made that are incompatible with formal rationality in law,
and indeed with the formal integrity of the institution that Weber con-
siders central, the contract. Labor law epitomizes the problem. Because
the contract of employment clearly disadvantages the party poorer in
social power resources, two political forces challenge established doc-

trine. Popular working class movements concerned with substantive
social justice as well as state welfare administrators concerned with social
pacification press for substantive restrictions and qualifications on con-
tracts, demanding legal interpretations that impose settlements more
equitable than those attainable by the respective bargaining power of the
parties. Toward the end of the nineteenth century, Weber recalls, Anton
Menger and others stated such demands in terms of natural law, cul-
minating in a substantive right to the full produce of labor allegedly
implicit in every contract of employment; but such metaphysical formu-
lations were soon undermined by the instrumental rationalism that is no
less characteristic of workers' organizations29 than of public bureaucrats.
The next generation of juristic designs responding to this class of sub-
stantive social concerns are, according to Weber, more interesting and
ingenious. In a tour de force, he sketches a composite picture of the
diverse schools critical of legal formalism, ranging from Otto Gierke to
Gustav Radbruch, linking them to a common project of injecting ethical-
ly directed juristic "creativity" into law-work. Weber responds that
adjudication under rationalized law cannot be subjected to common sub-
stantive principles: its formative principle is its capacity to effectuate a
formal order that maximizes the opportunities for individuals to act
according to their own standards, however harsh the concessions they
must make to social realities. The ideologies of "social" jurisprudence,
he maintains, are rooted in the experience of status-deprivation among a
talented minority of jurists who fear that their roles will shrink to the
dimensions projected by apologists for the Prussian and Napoleonic
codes. Weber derives this dissatisfaction with subservience to a technical
disciplines as anglophilism, charging the social jurisprudents with envy
of English lawyers, and he argues that the special conditions that give
common lawyers their unique standing have no counterpart elsewhere.
But the issue goes beyond misjudged professional self-aggrandizement.
In our view, Weber's arraignment of the illusion that advocates and
judges can speak justice instead of legality, implicitly parallels his mock-
ery of Sancho's absurd vainglory in his common sense.
To stop there in our interpretation of Weber, however, would be to
confuse Weber with Cervantes' Duke, who exploits Don Quixote and
29. Anton Menger, Das Recht auf den vollen Arbeitsertrag in Geschichtlicher Dar-
stellung (Stuttgart: Cotta, 1886); Anton Menger, Das biirgerliche Recht und die besitzlosen
Klassen (Tiibingen: Verlag der H. Laupp'schen Buchhandlung, [1903] 1927). A forceful
Marxist critique of the former work is to be found in Friedrich Engels and Karl Kautsky,
"Juristen-Sozialismus," Die Neue Zeit, 22 (1887): 491-509.
arrogantly belittles Sancho Panza. Weber's thought also resonates with

regrets. He acknowledges that the oppositional jurists' misgivings about
formal rationality are not only an ideological expression of status-
anxieties but also an authentic product of the self-critical rationality he
shares. The problems associated with structural inequities between con-
tractual parties in workers' employment contracts, for example, raise
substantive issues that cannot be ignored without consequences. Weber's
responsiveness to "social" injustices is, however, obscured in Economy
and Society.
Weber's allusive treatment of the distinction between social jurispru-
dence and social legislation law gains clarity from his review of the first
German treatise on the modern employment contract, written by the
well-known social reformer, Phillip Lotmar. Weber commends Lotmar
for the technical character of his juristic method. Instead of an ad hoc
description of the many legal and quasi-legal relationships constituting
the constantly changing employment market, Lotmar offers an abstract
typology and achieves the first systematic rationalization of the labor
contract. Then Weber comes to the point of special interest to our pres-
ent inquiry. Lotmar does justice to the labor contract, he maintains, pre-
cisely because he analyzes it without regard to its substantive terms or
social presuppositions. The "much lamented 'unsocial' character of
private law" cannot be remedied by incorporating substantive principles
in legal forms:
Not informal "positive" concepts are needed, but appropriate

specialized legal norms, as well as impartial and authoritative
adjudication that adheres stringently to the norm and thus also to
the form, "the twin sister of freedom."30
"Legal science can help achieve up-to-date legislative and jurisdictional

treatment of the interests of the working class,"31 Weber continues, only
by assessing the practical effects of present and prospective legal norms
as disinterestedly as possible and by working up existing legal norms by
the formal method necessary for minimizing arbitrariness in their
application.
He finds arbitrariness of application in Lotmar's efforts to invalidate
"yellow dog contracts," as well as contracts with private detectives,
informants, and strikebreakers, as "counter to good morals" in the
sense of the civil code. He is especially vehement about Lotmar's pro-
30. Max Weber, Review of Lotmar, p. 729.

31. Weber, Review of Lotmar, p. 730.
posal to assess employment contracts from the standpoint of the code's

anti-usury paragraphs. While lauding Lotmar's admirable social con-
sciousness, he insists that "the translation of his views into legal practice
would presuppose a cataclysmic transformation of the whole character
of our legal procedure. [It would entail] the elimination of its formalistic
foundations: in other words, a conversion to 'cadi justice.' " Our judges
do not appear qualified for such an assignment, Weber observes drily, as
witness the regrettable results whenever courts have assumed it. The
courts are incapable of solving the problem of a minimum wage, and any
court that attempted it would be dragged into the politics of class con-
flict, the selection of judges an object of power struggles. "Under present
circumstances," Weber concludes, "the working class had best limit
itself to the as yet unsatisfied demand that they be granted their formally
equal rights, leaving aside all elastic paragraphs-including those that
might conceivably benefit them."32
David Beetham argues that Weber's social sensibilities could not easily
be integrated into his political theory because of his radical individual-
ism, i.e., his inability to explore the strategy of social empowering of
individual freedom that constituted British "social liberalism."33 Yet the
special characteristics of the German Rechtsstaat made such efforts
problematic in ways that the English common law and sovereignty of
parliament could avoid. Weber's critique of "social" renderings of law is
not equivalent to a dismissal of all social consciousness and social reform
through legislation. Possible strains on formalism by such legislation is
not his immediate problem. In fact, as David Trubek has observed, he
paradoxically projects the onward march of legal rationalization to a
point where the free actor who is its subject disappears.34 The prophecy
that anathematizes the proponents of substantive rationality also fore-
dooms the meaningfulness and indeed the potency of formal rationality
in the law. Yet Weber, as disillusioned realist, chooses the alternative he
judges least harmful under the circumstances.
IV. Beyond Formal Rationality?
Examining law at the end of the twentieth century without illusions

requires a model more complex than the formalism of Weber's time. The
legal realities on which the contemporary approach through constituted
32. Weber, Review of Lotmar, p. 733.

33. David Beetham, "Max Weber and the Liberal Political Tradition," European Jour-
nal of Sociology, 30 (1989): 311-23.
34. David M. Trubek, "Reconstructing Max Weber's Sociology of Law."
self-regulation builds are explosive expansions of immanent legal devel-

opments that Weber had noted but considered unthreatening, as in his
discussion of "good faith" in contract law. In many domains, the instru-
mentalization of legal categories and procedures has disrupted the solid-
ity that such legal entities as property, contract, or entitlements appeared
to enjoy, and it has blurred the dividing lines between civil and criminal
or public and private law. At the same time, the power relations between
officials of the legal order and the corporate entities that are ever more
commonly its subjects have materially shifted; and arbitrarily selective
enforcement of legal claims or obligations is endemic. Yet law, legisla-
tion, regulation, litigation, violation, lawlessness, adjudication, and,
above all, lawyers are everywhere-as the keyword "juridification" indi-
cates. An influential theory of constituted self-regulation was proposed
by Gunther Teubner and Helmuth Willke in the early 1980s under the
slogan of "reflexive law," but the idea is evident in American legal tradi-
tions tracing back to the theoretical elaboration of the post-Depression
regime in labor relations. The central proposition is that court-enforced
law will limit itself wherever possible to norms guaranteeing forms of due
process and fair representation in diverse self-regulatory policy regimes
shaped by lawyers. Statutory law, under this theory, serves the objectives
of socially desirable regulation best by providing inducements to such
regime formation.35 The regimes comprise both "public" and "private"
collective actors; and while the general policy principles sought by the
democratic lawmaker are incorporated in their charters, the aim is to
secure pursuit of those objectives by the institutional design of the regime
and not by judicial control. The paradigm case is the collective bargain-
ing regime in North America, with the Canadian the more apt version
because of its effective exclusion of court interventions.36 To the extent
that such self-regulating regimes are achievable, proponents argue, the
courts are suitably protected from calls to play cadi, while conflicts of
rights and interests are restrained by safeguards against arbitrary deter-
mination by the adventitiously most powerful. Sub-field regimes take on
the character of autonomous constitutions within the suzerain constitu-
tional scheme at large.
Curiously enough, this approach coincides with a hint inferrable from
Weber's Economy and Society, although it is antithetical to the principal
35. Gunther Teubner and Helmuth Willke, "Kontext und Autonomie: Gesellschaftliche
Selbststeuerung durch reflexives Recht," Zeitschrift fur Rechtssoziologie, 6 (1984): 4-35;
see also Gunther Teubner, "Substantive and Reflexive Elements in Moder Laws," Law &
Society Review, 17 (1983): 239ff.
36. Paul C. Weiler, The Transformation of the Law at Work (Cambridge, MA: Harvard
University Press, 1988).
lines of Weber's legal theory. Notwithstanding his mockery of the "cre-

ativity" ideology among German jurists, Weber recognizes the special
qualifications of advocates for the conflictual representation of interests,
as witness their ready transformation into professional politicians, and
indeed into demagogues, during the heroic days of party conflict and
parliamentarization.3' Weber's prophecy for calmer times, however,
when technical and economic development will have been stabilized, is
that many issues will be resolved by negotiations among representatives
from the affected vocational groupings, resembling the councils and eco-
nomic chambers demanded during the revolutionary days of 1918-19 and
opposed by Weber then as premature.38 Although the present is hardly a
time of stabilization, one might well conclude that the decline in ideo-
logical party organizations and the decentering of public power opens the
way for the reconstitution of advocates' roles and forums urged by pro-
ponents of "constituted self-regulation," at least in economic law. In a
sociological sense, such an order would count as a new "constitution"
for Weber.39
But in his definition of a constitution Weber also raises a difficulty
that may be insufficiently heeded by the proponents of constituted self-
regulation. He maintains that his own usage is identical with that of
Ferdinand Lasalle:
Constitutional issues are not at bottom juristic issues, but questions

of power. The real national constitution has its being only in the
actual power relations subsisting in the nation. Written constitu-
tions have value and durability only when they accurately represent
the prevailing power relations.40
Weber leads us back to questions about the conditions under which con-
stituted self-regulation can in fact counteract unfairnesses generated by
de facto power differentials. Problems of internal politics return to
trouble an approach that originates in distrust of the rationality and
effectiveness of the parliamentary state.
Misgivings about the political character of bargaining regimes in labor
relations fuel an illustrative application of the second general approach
under review here, theories of enhanced judicial responsibility for sub-
stantive righteousness. Labor law remains as fertile a place for the debate
37. Weber, Wirtschaft und Gesellschaft, pp. 828-29.

38. Weber, Economy and Society, p. 299.
39. Weber, Economy and Society, pp. 50-51.
40. Ferdinand Lasalle, Die Verfassungsreden, in Gesammelte Reden und Schriften, vol.
2, ed. Eduard Bernstein (Berlin: Dietz, 1919), p. 60.
about substantive rationality in law as it was in Weber's time.41 The work

of Canadian labor lawyer David Beatty illustrates the conjunction.
Inspired, first, by practical disillusionment with collective bargaining
and arbitration, and, second, by the introduction of judicially enforce-
able charter rights into the Canadian Constitution, Beatty relies on the
"constitutional conversation" before the courts to secure for employ-
ment relations the substantive right on which, in his view, democracy
rests.42 He maintains that "a right to equality of liberty" is the ultimate
principle of the Charter and construes this to incorporate the social em-
powerments requisite to individual choices of actions. Beatty applies
these reasonings to undermine the characteristic institutions of consti-
tuted self-regulation as they historically developed in the North Ameri-
can context, most notably the monopoly bargaining prerogatives of
majority-chosen collective agents for administratively determined "bar-
gaining units." He challenges these institutions in order to assert the
social rights of disempowered individuals or minorities whose interests
rank low in present collective bargaining. Beatty's challenge to the para-
digm case of constituted self-regulation is especially striking because he
also argues against restrictive formal rationality in rendering the new
constitutional norms, expressly pressing the case for the judiciary's
pivotal role in enhancing substantive righteousness. He understands
judicial process as locus of a "conversation" that first explicates rights
through philosophical analysis and then assesses rights claims by means
of social-theoretical reasonings resembling the social jurisprudence that
Weber considers especially pernicious.
The notion of "conversations" in a judicial forum derives immediate-
ly from critiques of instrumentalism increasingly prominent in Anglo-
American academic philosophy, but it is also related to the theoretically
more ambitious, generation-long effort by Jiirgen Habermas to achieve
41. This is not to suggest that the rise of the labor movement in the twentieth century is
the sole or even principal challenge to formal rationality in law. The "social question" and
associated critiques of the labor contract were a special focus for Weber in the context of
his wider debate with Marxism, and Hayek later defined the issue in terms of a "socialist"
threat; but deformalization is also prevalent in legal domains remote from labor. See
Morton J. Horwitz, The Transformation of American Law 1870-1960: The Crisis of Legal
Orthodoxy (New York and Oxford: Oxford University Press, 1992).
42. David M. Beatty, Putting the Charter to Work (Kingston and Montreal: McGill-
Queen's University Press, 1987); David Beatty and Steve Kennett, "Striking Back: Fighting
Words, Social Protest and Political Participation in Free and Democratic Societies,"
unpublished paper presented at a conference on "Labour Law Under the Charter,"
organized by Queen's University Industrial Relations Centre and Faculty of Law, Sep-
tember 24-26, 1987.
social recognition for the full range of human achievements celebrated

by the "Reason" of the Enlightenment. Habermas challenges Weber's
concept of rationalization in general and his conception of formal ration-
ality in law in particular. His basic argument is that Weber fails to dis-
tinguish between the mode of rationalization that articulates itself in
instrumentally rational systems and the mode of rationalization that
changes how social actors discourse about their choices of conduct. The
former lends itself to methodical elaboration of rigorous operations to
achieve universally calculable, verifiable, and optimal results. The latter
depends on impartial mutual persuasion among disinterested autono-
mous individuals unpersuadable except by reasons-or whatever meth-
odological surrogates for such a process can be devised. Weber's failure
to make the distinction distorts his theory, according to Habermas,
because it blinds him to the fact that the actors presupposed by the
former type of rationalization will accept its discipline only by virtue of
the latter. Formal rationality derives its legitimacy from substantive
rationality, and it requires legitimacy to function. Insofar as the systems
marked by formal rationality fail to respect this need, and insofar as they
attack their own moral and political preconditions by colonizing the
domains where the second kind of rationalization must have compara-
tively free play-given its need for experimentation, time, tolerance for
uncertainty, respect for judgment, solidarity, and mutuality, the systems
world of formal rationality destroys itself. In recent years, Habermas has
become convinced that "juridification"-the expansion of the legal
system to comprehend issues formerly decided by authority or delibera-
tion-is the mode of systems-rationalization that most directly attacks
the discursive and ultimately democratic life world on which the very
possibility of civilization depends. This leads him to insist on structural
safeguards for the rights of morality, politics, privacy, and all the civil
exchanges that cumulatively give the second kind of rationalization its
chance. In his most comprehensive work, he proposes a distinction
between "law as system" and "law as institution," with the latter refer-
ring to the dimension where law earns its legitimacy through a perceived
consonance with the most rational understanding of justice a community
may generate.43 In a more recent article, addressed directly to jurists, and
responding to objections from sympathetic thinkers that they could not
make that distinction work in the law, he insists more broadly that law
43. Jiirgen Habermas, Theory of Communicative Action. Volume Two. Lifeworld and
System: A Critique of Functional Reason (Boston: Beacon Press, [1981] 1987).
cannot in any case render itself autonomous of morality and politics. He

writes:
Legality can generate legitimacy only insofar as the legal order

satisfies the need for justification that arose when the law became a
matter of positive enactment [instead of religiously grounded moral
consensus]. This responsiveness must take the form of institution-
alizing judicial processes open to moral discourse.44
Within certain limits set by legalistic institutionalization, according to

Habermas, law institutionalizes the logic of moral argument without
destroying its autonomy. Morality is thus given a dynamic role within the
legal order.45
Habermas's meticulous critique is far removed from the naive joyous-
ness of a Sancho come to judgment. Yet the pressure upon jurists to
make theoretical principles work in social proceedings where the right to
a timely answer is absolute and constitutive-since "justice delayed is
justice denied"-gives urgency to the question of whose morality will
prevail. On the one hand, the turn to "substantive righteousness"
increases the danger that the morality invoked will see through one eye
only: after all, even Sancho's best cases will not stand up to close
scrutiny. Sancho, for example, scornfully dismissed a charge of rape
after deftly showing how successfully the woman could resist the accused
when the object of his forceful assault was a bag of gold. Even if Haber-
mas is right in thinking that enough time and discussion can improve our
answers to moral questions, the problem of law is that its judicial appli-
cations always lack the time to hear and the knowledge to comprehend
all the considerations that might prove relevant. Beatty's faith in "con-
stitutional conversation" to resolve questions of competing individual
and collective claims, in a context of radical power disparities and clash-
ing interests illustrates, in our view, the temptations to succumb to illu-
sions. Such difficulties explain why some jurists sympathetic to Haber-
mas' concerns nevertheless prefer to experiment with conceptions of law
that separate out and fence in certain fields for constituted self-regula-
tion, simultaneously advocating political changes to make the bargaining
in those fields more inclusive and evenly matched. Beatty abandons col-
lective bargaining in favor of a process that demands more of legal prac-
44. Jiirgen Habermas, "Wie ist Legitimatat durch Legalitat moglich?" Kritische Justiz,
20 (1987): 1-16.
45. See Jiirgen Habermas, Faktizitat und Geltung.
tice than it can provide, moved, like Habermas, by considerations of

democratic legitimacy as well as substantive justice. The constituted self-
regulation analyses are not indifferent to democratic concerns, but they
attempt to satisfy them by scattering democratic moments throughout
the complex processes they consider decisive.
For proponents of Critical Legal Studies, the idea that law is an auton-
omous order capable of constituting institutions for negotiations in-
formed by substantive justice and yielding a mode of democratic self-
regulation appears as improbable as the idea that judicial deliberations
could approximate the moral results of substantive righteousness. Legal
forums, in their view, are simply arenas for struggles between ideological
contestants, political in content, although constrained in gesture by tech-
nical forms. For present purposes, we nevertheless treat them as the lim-
iting case of the substantive righteousness approach.46 Committed to
projects of radical participatory democratization, they see the work of
the lawyer as a series of tactical attempts to manipulate the ideological
resources available in a court of law to further their political designs,
freely adjusting their litigation theories to the varieties of situations. In
contracts, they have favored "paternalism," while in labor law they have
called for the most radical freedom for collective action. In short, they
reject the idea of a principled jurisprudence as strategic guide. They
46. Giinter Frankenberg, a German writer close to American Critical Legal Studies, cites
a Sancho-like character in Bertold Brecht's Caucasian Chalk Circle (1974 [1955]) as model
for an appropriately ironic attitude toward legal work. Giinter Frankenberg, "Down by
Law: Irony, Seriousness, and Reason," pp. 315-52 in Critical Legal Thought. A closer look
at the play, in fact, reinforces Weber's conclusions. Adzak, a wise fool, is mockingly
elevated to a cadi-role as an incidental byproduct of social revolution. He caps a series of
socially just, anti-legalistic rulings with a virtual reenactment of Solomon's legendary deci-
sion concerning a child whose keeping is contested by two women. In Brecht, all ends very
well indeed, and the revolutionary lesson is taught: the keeping of valuables goes to those
who will best serve and enhance them. But in his attempt to use Adzak's story against
Weberian legalism, Frankenberg overlooks that Brecht presents it as a play within a play, a
parable designed to overcome a conflict between two Soviet collective farms. The media-
tion is under Stalin's patronage; and the judgment reinforces a nasty piece of Stalinist prag-
matism. This cadi/Solomon/Sancho Panza proves a deceptive legend too. Brecht wrote
The Caucasian Chalk Circle only a few years after citing Cervantes as a model for a trans-
formative "realism" that would escape Stalinist narrowness without outright rejection of
Stalinist literary doctrine. Notwithstanding Brecht's subtlety, his "realism" shows its dark-
est side where disillusionment is absent-or perhaps present in cynical excess. In any case,
Weber's expose of substantive rationality in law applies equally to Adzak's revolutionary
ingenuousness.
represent the most thoroughgoing challenge to Weber's counsel about

juristic conduct.47
In a passage poorly explained by interpretations that disregard the pru-
dential dimension in the work, Weber warns proponents of "social juris-
prudence" that any more talk of free judicial discretion would exacer-
bate social injustice because of the character of the judicial selection pro-
cess and ethos. "If one deprived such judges of their faith in the sanctity
of the purely objective formalism of law," he writes, the results would be
sorely regretted by those responsible for such enlightenment. That is
hardly a philosophical counter to the positive doctrine of Critical Legal
Studies, where Hegel's excoriating judgments on "absolute subjective
freedom" are more to the point, but it is a fitting paradoxical ending to
an exploration haunted throughout by the role of constructive counsel in
a context ostensibly set by the loss of faith that attends a realism bred by
disillusion. Perhaps the whole legal project is unthinkable without the
faith that constitutes lawyers, and that faith must have a vital formalistic
component among its contents. Thinking about the law without thinking
realistically about the deal that binds lawyers together is the central error
of judgment that Weber warns against.
V. Disillusionment, and What Then?
In an extraordinary essay on "Don Quixote and the Problem of Reality,"

Alfred Schutz concludes that the tragic outcome of the "let's pretend"
manipulations contrived by the Duke and Duchess, to which Sancho's
term as governor is the immediate prelude, is to thrust the Don back into
the prison of everyday reality, "tortured by the most cruel jailer: the
common-sense reason which is conscious of its own limits."48 That he
cannot survive, according to Schutz, "the great process of disillusion-
47. We regard our characterization as apt, but insufficiently nuanced. This would be evi-
dent from comparative study of the following representative works of "critical legal
studies": Duncan Kennedy, "Toward an Historical Understanding of Legal Conscious-
ness: The Case of Classical Legal Thought in America, 1850-1940," Research in Law and
Sociology, 3 (1980): 3-24; Karl E. Klare, "Workplace Democracy & Market Reconstruc-
tion: An Agenda for Legal Reform," Catholic University Law Review, 38 (1989): 1-68;
David M. Trubek, "Where the Action Is: Critical Legal Studies and Empiricism," Stan-
ford Law Review, 36 (1984): 575-622; Mark V. Tushnet, "Following the Rules Laid Down:
A Critique of Interpretivism and Neutral Principles," Harvard Law Review, 96 (1983):
781-827; Roberto Mangabeira Unger, "The Critical Legal Studies Movement," Harvard
Law Review, 96 (1983): 563-675.
48. Alfred Schutz, "Don Quixote and the Problem of Reality," in Schutz, Collected
Papers 2. Studies in Social Theory (The Hague: Martinus Nijhoff, 1964), p. 157.
ment" is critically revealed by his desperate proposal to Sancho to

believe certain of Sancho's claims, incredible by Quixote's standards, in
exchange for Sancho's acceptance of one of his own visions, which he
had himself come to doubt.49 While Don Quixote is shielded by his axiom
of enchantment until distrust breaks through, Weber's device is the "dis-
enchantment of the world." We think that "disillusioned realism"
means that the recognition of the ultimate need for deals such as the one
that destroyed Don Quixote is Weber's starting point, even though he
then proceeds-and must proceed-as if this moment could be long post-
poned or instantly forgotten. Schutz observes that "he who professes
knight errantry" must not only "be a jurist and know the laws of person
and property," but also "a physician and especially a herbalist in order
to prepare a flask of the balsam of Fierrabras, of which a few drops heal
a knight cut through the middle, provided that the parts are fitted
together before the blood congeals."50 Perhaps, after all, Weber cannot
lead us to anything more certain than such a dubious palliative, suitably
disenchanted, when he turns to the therapeutic uses of his knowledge.
The special juristic construct of the imperfectly controlled less than good
faith agreement-exemplified by collective bargaining agreements and
constitutions-is certainly an unreliable, implausible remedy, especially
when contrasted with Habermas's hopes for a life-world open to reason.
But there may really be nothing else.
In the Faces of Injustice, Judith Shklar suggests a cautious step
beyond this somber conclusion, sacrificing nothing to illusion, but more
responsive to the experience of injustice in society. Shklar's concept of
the rule of law is formalistic and, like Weber's, derived from the political
liberal tradition originated by Montesquieu. She has no patience with
Hayek's neo-liberalism, however. In her view the inherent concern of law
is not to protect the market or "spontaneous social formations." Rather,
criminal law is the primary preserve of the rule of law. "Institutions of
judicial citizen protection," she writes, ". . . exist in order to avoid ...
constant fear created by the threats of violence and the actual cruelties of
the holders of military power in society."51 Shklar had a lifelong respect
for the explosiveness of force and therefore a strong sense of the fragili-
ties of personal freedom. There is no evolutionary "civilizing process" in
Shklar's world; there are not even, as for Habermas, cumulative and
irreversible rationalization thrusts. Civilization for Shklar is first of all
an unfinishable project of making the world safe for civilians.
49. Schutz, "Don Quixote," pp. 155-58.

50. Schutz, "Don Quixote," p. 138.
51. Shklar, "Political Theory and the Rule of Law," p. 5.
Legalism, in her view, is an ideology oriented to rights and tribunality,

the abstract relations and methods integral to the rule of law.52 Belief in
this ideology is a difficult civil accomplishment, needing to be constantly
renewed. But legalism should be opposed where the central values of the
rule of law are not at stake. Happiness may be more important than
rights; and bargaining may better resolve conflicts than a tribunal's
"principled reasoned decision-making." Those are political questions
and no legal theory, however extended, may preempt them. For Shklar,
justice is indeed centered on the rule of law; but such justice cannot be
more than a necessary condition for normal political life. To dramatize
this point, she argues that injustice is inadequately defined by reference
to justice. Misfortune and injustice are divided by a perspectival and
political boundary only, and politics is properly about complaints by
citizens that their hurts are caused by injustice. Outside of the narrow
sphere of justice in the strict sense, however, the claims are contestable,
and the contests are not justiciable. Citizenship entails responsiveness to
such contests, and democratic politics provides institutions for their reso-
lution. Sancho's freedom from the passive injustice of his social betters
qualifies him as model citizen even if it makes him a failed judge.
52. Shklar, Legalism.

Max Weber's Legal Formalism and the Role of Social Justice

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Max Weber's Legal Formalism and the Role of Social Justice

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Legal Formalism and Disillusioned Realism in Max Weber

Author(s): David Kettler and Volker Meja

David Kettler is Professor Emeritus in Political Studies at Trent

Volker Meja is Professor of Sociology at Memorial University of

Realism is a matter of breadth, not rigor. Reality itself is broad,

To take, with Cervantes, the world as ambiguity, to be obliged to

Yet it is Mannheim's progressivist hopes that are not persuasive today.5

The deformalization of civil law by the actors that Max Weber

There is no agreement, however, about whether deformalization en-

8. Christian Joerges, "Die Uberarbeitung des BGB-Schuldrechts, die Sonderprivat-

ation processes and agreements, at the expense of the formal, judge-

without over-expanding law's empire to the point where it paradoxically

I. Weber's Critique of Substantive Rationality in Law

In an exemplary but one-sided reconstruction, Anthony Kronman

tative normative rationales transparent to trained professionals.18 But

posals for substantive rationality in law. 19 Oppositional efforts, he con-

Thus efforts to restore substantive contents to technical legal forms must

sions to cultural fads of Weber's time. We disagree. Weber's treatment

II. Sancho Panza as Governor

According to Weber, "substantive rationality" in law belongs to an early

We begin with Weber's literary allusions. Linking Solomon with the

coutumes.27 If the Prussian Code corresponds to the cadi in petty arbi-

27. Weber, Economy and Society, p. 865.

breach the law, he concludes without style that it is better to do good

HI. Weber and Social Jurisprudence

Modern challenges to the formal rationality of law are prefigured by

ism of the rationalized legal order. A persistent immanent problem arises

social power resources, two political forces challenge established doc-

arrogantly belittles Sancho Panza. Weber's thought also resonates with

Not informal "positive" concepts are needed, but appropriate

"Legal science can help achieve up-to-date legislative and jurisdictional

30. Max Weber, Review of Lotmar, p. 729.

posal to assess employment contracts from the standpoint of the code's

IV. Beyond Formal Rationality?

Examining law at the end of the twentieth century without illusions

32. Weber, Review of Lotmar, p. 733.

self-regulation builds are explosive expansions of immanent legal devel-

lines of Weber's legal theory. Notwithstanding his mockery of the "cre-

Constitutional issues are not at bottom juristic issues, but questions

37. Weber, Wirtschaft und Gesellschaft, pp. 828-29.

about substantive rationality in law as it was in Weber's time.41 The work

social recognition for the full range of human achievements celebrated

cannot in any case render itself autonomous of morality and politics. He

Legality can generate legitimacy only insofar as the legal order

Within certain limits set by legalistic institutionalization, according to

tice than it can provide, moved, like Habermas, by considerations of

represent the most thoroughgoing challenge to Weber's counsel about

V. Disillusionment, and What Then?

In an extraordinary essay on "Don Quixote and the Problem of Reality,"

ment" is critically revealed by his desperate proposal to Sancho to

49. Schutz, "Don Quixote," pp. 155-58.

Legalism, in her view, is an ideology oriented to rights and tribunality,

52. Shklar, Legalism.

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