STATE AND ECONOMY IN MODERN SOCIETY 1992
STUDENT: DAVID RISSTROM, 8120572
LECTURER: JOHN LOVE
THE POSITIVISATION OF MODERN LAW
What is entailed in the positivisation of modern law? Do you agree with Weber and Luhmann that this is more or less
inevitable given contemporary economic and political conditions.
THE POSITIVISATION OF MODERN LAW
The positivisation of modern law describes the evolution of legal bureaucratic systems from natural law
premises of the evaluation of law according to universal moral standards1, to a system founded upon
insistence of a logical separation between law and morality.2
Positive law is essentially an order of coercion which, unlike natural law that strictly speaking claims
validity regardless of whether imposed or enforced, has no inner necessity. Five principles views are
typically associated with legal positivism.3 These are; that laws are commands of human beings; That there
is no necessary connection between law and morals; that analysis of legal concepts is worth pursuing; that a
legal system is a ‘closed logical system’ in which correct decisions may be deduced from predetermined
legal rules by logical means alone; and, that moral judgements cannot be established by rational argument
and evidence of proof, in the way that statements of fact can.4 As such, positivists maintain that the only
meaningful propositions about social phenomena are those that in principle, can be scrutinised by empirical
analysis.
A SOCIOLOGICAL THEORY OF LAW
Max Weber (1864-1920) was a trained lawyer whose main project was to explain the development of
capitalism in Western societies. Weber’s writing on the sociology of law was in the context of a much
broader, ambitious account of the general relations of the economy to other spheres of social life. Weber
viewed the growth of capitalism as one special facet of the rationalisation of modern society, permitting law,
religion, economics, science, and politics to have both independent and dependant positions in relations to
each, with none exerting priority.5
Weber produced a typology of law based on the concept of rational law. Weber says law exists when, “there
is a probability that an order will be upheld by a specific staff of men [sic] who will use physical or physical
compulsion with the intention of obtaining conformity with the order, or of inflicting sanctions for
infringement of it.”6 Weber sees modern law as tending to move more in the direction of the interpretation
of the meaning of particular provisions in a legal code, therefore law can be formal, but not directly
concerned with meaning. His arguments about the nature of modern law concern the development of
1
2
3
4
5
6
Finnis, J., 1980, Natural Law and Natural Rights, 3.
Barry, N., 1989, An Introduction to Modern Political Theory, 31.
Hart, H.L.A., 1958, ‘Positivism and the separation of law and morals’ in Harvard Law Review, 37.
Wacks, 1990, Jurisprudence, 34.
Albrow, M., 1975, ‘Legal Positivism and Bourgeois Materialism: Max Weber’s View of the Sociology of Law’ in
British Journal of Law and Society, 14.
Weber, M., ‘Wirtschaft und Gesellschaft’ cited in ‘Class Status, Party’ in Gerth, H., and Wright Mills, C., 1991, From
Max Weber: Essays in Sociology, 180.
legalism as a phenomenon over the last few hundred years, and the transition from a situation when natural
law was important, to a situation where the evolution of positive law inferred that natural law had ceased to
be so.
Weber’s general thesis is that the formal rationalisation of law in Western societies is a result of “capitalism
… interested in strictly formal law and legal procedure” and the “rationalisation of officialdom in absolutist
States [which] led to the interest in codified systems and in homogenous law”. 1 His methodology is to
advance a theory of law that depends on identifying the common elements in any system of legal thought
and to show how they have developed.2 Weber’s concern with ‘empirical law-finding’3, in his engagement
and study of Anglo American common law was that concepts in common law are not imposed on the law.
Weber believes in the importance of the continued positing of legal notions for, “The juristic precision of
judicial opinions will be seriously impaired if sociological, economic or ethical argument were to take the
place of legal concepts.”4 Albrow suggests a distinction in Weber’s thought between his theory of law as
‘legal positivism, and his general account of law as best labelled as ‘bourgeois materialism. 5 Weber’s notion
of law then underpins the independence of lawyers as an interest group, contributes to a vision of society as
a plurality of competing groups and is part of an empirical multiple-factor methodology of social science.6
Weber uses the notion of ‘ideal types’, as well as the development of particular concepts of rationality, to
demonstrate the movement towards capitalism. As a liberal, Weber’s reference point is the individual, so
for him, social action can only be understood by reference to its meaning, purpose and intention for the
individual.7 Legal ideas are found empirically in the practical business of deciding cases that reflect in a
direct way major underlying assumptions about common law methods.8
Weber held firm to a profound difference between the juristic and sociological views of law, with the former
consisting far more in finding the ideal meaning of the legal norm, defining the facts to which it might apply
and fitting it into a general system of legal propositions.9 Weber’s methodological approach, employing the
ideal type is an important notion, proposing concepts as idealised conceptions of reality, which create a
conceptual utopia that is pure and more coherent than the actual reality it produces. 10
Weber advocates a concept of law that, “Will be defined as an order which depends on an enforcement
staff”11, seeing law as, “simply an ‘order system’ endowed with certain specific guarantees of the probability
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7
8
9
10
11
Weber, M., The Religion of China, 149.
Albrow, M., 1975, ‘Legal Positivism and Bourgeois Materialism: Max Weber’s View of the Sociology of Law’ in
British Journal of Law and Society, 14.
Weber, M., 1978, Economy and Society, 785.
Rheinstein, M., (ed.), 1954, Max Weber on Law in Economy and Society, 320.
Albrow, M., 1975, Op cit., 25.
Ibid., 24.
Wacks, 1990, Jurisprudence, 143.
Cotterrell, R., 1989, The Politics of Jurisprudence, 107.
Albrow, M., 1975, Op cit., 16.
Giddens, A., 1981, Capitalism and Modern Social Theory; An analysis of the writings of Marx, Durkheim and Weber, 141.
Rheinstein, M., Op cit., 6.
Positivisation of Modern Law / David Risstrom / Page 2
of its empirical validity”1, even though this appears to be in conflict with Weber’s notion of the subjective
meaning of action. Nevertheless, Weber sees legal systems and practices as a variable surface expression of
deeper categories of social action and types of social structure which the sociologist reveals. 2
Habermas, wanting to rehabilitate natural law claiming it has made important contributions to notions of the
citizen and human rights3, criticises Weber’s neo-Kantian stance saying, “Weber takes into consideration the
horizon of possibilities opened by the modern understanding of the world only to the extent that is serves to
explain the core phenomenon he identified in advance.”4
THE ROLE OF NATURAL LAW
The rise of legal positivism is often associated with the nineteenth century prestige of ‘science’ and the
aspiration to produce a specific legal science, though more is at stake than simply that. It is not a change in
attitudes to science, morality or religion that should be held primarily accountable for the decline of natural
law thinking and the rise of modern legal positivism but a change in the nature of law itself and its political
and profession environment.5
“In consequence of both juridical rationalism and modern intellectual scepticism in general, the
axioms of natural law have lost all capacity to provide the fundamental basis of a legal system…
The disappearance of the old natural law conceptions has destroyed all possibility of providing
the law with a metaphysical dignity by virtue of immanent qualities. In the great majority of its
most important provisions, it has been unmasked all too visibly, in need, as the product or the
technical means of a compromise between conflicting interests.”6
Such an interpretation of law as a compromise, of above all, economic interests, could be offered even for
constitutions such as that of the United States, which expressed principles purportedly grounded in ideas of
‘natural rights’; truths declared self evident because founded in the nature of mankind or of human society. 7
Classical natural law theory sought a grounding for human law in unchanging principles, derived from
‘nature’ in some sense, and was usually held to be discoverable by reason, though two legal developments in
Western societies have made it especially hard to accept any such approach to understanding the general
character of law. One is legal doctrine’s ever increasing complexity and technicality, partly the result of
law’s methods of compromise between conflicting interests being extended to cover more and more sectors
of social life, being invoked in support of more and more diverse interests within the regulated populations. 8
The other development is the deliberate use of law as a steering mechanism in society which presupposes
that law can change rapidly and continuously, but also that it does so not as a reflection of enduring
1
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3
4
5
6
7
8
Ibid., 8.
Albrow, M., 1975, ‘Legal Positivism and Bourgeois Materialism: Max Weber’s View of the Sociology of Law’ in
British Journal of Law and Society, 14.
Habermas, J., 1976, Legitimation Crisis, 87.
Habermas, J., 1970, The Theory of Communicative Action, Vol. 1, 221.
Cotterrell, R., 1989, The Politics of Jurisprudence, 123.
Weber, 1978, Economy and Society, 874-5.
Cotterrell, R., 1989, Op cit., 123.
Ibid., 124.
Positivisation of Modern Law / David Risstrom / Page 3
principle but as a mechanism aimed at creating principles of social order. These principles are however
time-bound, pragmatic principles for the moment and the context, quite unlike timeless principles of natural
law.1
The issue then is not exactly that of being unable to agree about ultimate values, or that it is impossible any
longer to accept that reason can discover universal ‘truths’ about human nature, or God’s plan, or the hidden
order of the universe or any such postulated foundation of natural law. The fact that agreement is difficult
to reach does not show that principles of natural law are non-existent.2 As Leo-Strauss said, “By proving
that there is no principle of justice that has not been denied somewhere or at some time, one has not yet
proved that any given denial was justified or reasonable.”3
The problem is that even if there are universal principles of all law, they may not offer a convincing guide or
grounding for complex, hugely technical and ever changing modern law. As legal positivism does not deny
that the substance of law can be subject to moral criticism, the issue is not whether law can be morally
evaluated, but whether its essential character must be explained in moral terms. As an effort to provide
such an explanation, natural law ideas are, in the view of many writers, ‘devoid of any and every convincing
theoretical justification.4
Weber claims there are a number of factors that account for this development, including, in particular, the
growth of bureaucracy which established the basis for administration of a rational law conceptually
systematised. Weber says other causal factors include the legal profession and legal education, which both
stress the rational and conceptual elements of law, and natural law, which results from the tension between
formal law and substantive justice.5
WEBER’S TYPOLOGY OF LAW
Weber’s typology of law is based on various forms of legal thought, though rationality persists as the central
concern, enabling Weber to enunciate a distinction between what he calls ‘formal’ and ‘substantive’ legal
systems as described above. The crux of this distinction is the extent to which the system is ‘internally selfsufficient’, ie, that the rules and procedures required for decision making exist within the system.
The second distinction Weber elucidated was between ‘rational’ and ‘irrational’, which describe the manner
in which the rules and procedures are applied in the system. The highest stage of rationality is reached
where there is 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, under which, it is
implied, all conceivable fact situations must be capable of being logically subsumed. 6 Synthesising these
two themes, Weber’s typology of law could be illustrated as follows;
RATIONAL
1
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3
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6
IRRATIONAL
Ibid., 124.
Finnis, J., 1980, Natural Law and Natural Rights, 24.
Strauss, L., 1953, Natural Right and History, 9.
Habermas, J., 1974, Theory and Practice, 113.
Wacks, 1990, Jurisprudence, 146.
Rheinstein, M., Max Weber on Law in Economy and Society, 62.
Positivisation of Modern Law / David Risstrom / Page 4
SUBSTANTIVE
FORMAL
Substantively rational
Formally rational
Substantively irrational
Formally irrational
In explaining these four categories, Weber provides examples of each type of legal thought. Weber calls
‘substantively irrational law’, Khadi justice, in reference to procedures used in Islamic law where decisions
are made in a some what ad hoc fashion, being based on ethical, emotional and political considerations. In
this category, cases are decided on their merits without reference to general principles. Substantively
rational law is exemplified by theocratic legal systems and ‘the patriarchal system of justice’ which, whilst
not acceding a separation between law and morals, does attempt to establish a doctrinal system of principles
and rules.
Systems of formally irrational law may be found in primitive societies that employ trial by ordeal or oracle,
with decisions being based on tests considered beyond the control of human intellect. Weber saw the
rational interpretation of law on the basis of strictly formal conceptions as standing opposite the kind of
adjudication primarily bound to sacred traditions.1 Formally rational law is exemplified by the codes of civil
law countries which are derived from Roman law, being viewed by Weber as ‘gapless legal systems’ which
contain answers to all the legal problems.
Weber proposed a second form of typology based on the mode of law creation, the formal qualities of the
law so created, and the type of justice attained. Weber argued that law passes through four phases. These
are firstly, the charismatic legal revelation through ‘law prophets’; secondly, the empirical creation and
finding of law by legal honoratiores; thirdly, the imposition of law by secular or theocratic powers; and
fourthly, the systemised elaboration of law and professionalised administration of justice. Weber’s typology
of legal development could be illustrated as follows2;
MODE OF CREATION
FORMAL QUALITIES
TYPES OF JUSTICE
Charismatic
Empirical
Secular, theocratic
Magical, irrational
Reliance on honoratiores
Theocratic substantive
rationality
‘Sublimation of concepts’
Charismatic
Khadi justice
Empirical
Professionalised
Rational
In talking about the development of the legal profession in Rome, Weber says;
“…the necessity of systematic juristic studies was greatly increased by the imperial system of legal
administration through appointed officials and its rationalisation and bureaucratisation, especially in
the provincial service… The systematic rationalisation of the law in England, for example, was
retarded because no bureaucratisation occurred there. As long as the jurisconsults dominated the
Roman legal administration of justice as the legal honoratiores, the striving for systematisation was
feeble, and no codifying and systematising intervention by the political authority occurred.” 3
1
2
3
Weber, M., ‘Bureaucracy and Law’ in Gerth, H., and Wright Mills, C., 1991, From Max Weber: Essays in Sociology,
216.
Hunt, A., The Sociological Movement in Law, 107.
Rheinstein, M., Max Weber on Law in Economy and Society, 222.
Positivisation of Modern Law / David Risstrom / Page 5
Rheinstein draws parallels between Weber’s perceptions and Austin’s definition of law as the command of
the sovereign1, which Cotterrell describes as having evolved from his “single minded commitment to the
development of a science of law which would show the distinctive structure of legal doctrine. 2 Likewise,
Albrow believes it is clear from Weber’s essay on Stammler that he regards the, “methodological problems
of the study of law as being in principle no different from those in the study of any set or rules, be they
convictions or merely the rules of a game of cards”.3
Cotterrell suggests, “In Weber’s view, in order to understand political legitimacy under conditions of legal
domination it is not necessary to evaluate the content of the law. The existence of a law, in particular
conditions and in a particular form, provides its own ideological basis whatever its substantive content,
whilst the action of the State, in accordance with law derives legitimacy from law.” 4 Therefore, legal
domination is not dependant upon the extent to which the law reflects the values to which people who
accept its legitimacy subscribe.
Weber claims that law is affected only indirectly by economic circumstances, conceiving law as being
‘relatively autonomous’, in that it “generally it appears … that the development of the legal structure has by
no means been predominantly determined by economic factors”.5 For Weber therefore, unlike Marx, law is
fundamentally related but not determined by economic factors.
Thus, Weber’s argument could be summarised as follows.
Rational economic conduct, profit-making
activity and budgetary management are at the heart of capitalist system. This rationalism is facilitated by
the certainty and predictability of logically formal rational law. Therefore, the presence of this type of law
assists but does not cause the advance of capitalism, and although Weber uses England as an example to
prove his thesis, that only where the law is systematised so as to ensure the predictability of economic
relations can capitalism develop, he admits that in many respects the English common law during the
development of the capitalist economy was highly irrational.
A second feature of the English system to which Weber ascribes considerable significance in the
advancement of capitalism is the legal profession. Weber shows how lawyers in England traditionally
served as advisers to businessmen and corporations, enabling them to modify the law to suit the interests of
their commercial clients. In conjunction with centralisation of the Bar in London, and the monopolisation of
legal education by the Inns of Court, this ensured that lawyers were a group which was active in the service
of propertied and particularly capitalistic private interests, and which has to gain its livelihood from them. 6
Unlike Continental practice, lawyers in England approximated to craft guilds in their education, training
and specialisation that “naturally produced a formalistic treatment of the law, bound by precedent” 7, which
1
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3
4
5
6
7
Cotterrell, R., 1989, The Politics of Jurisprudence, 36.
Cotterrell, R., 1989, Op cit.., 232.
Albrow, M., 1975, ‘Legal Positivism and Bourgeois Materialism: Max Weber’s View of the Sociology of Law’ in
British Journal of Law and Society, 17.
Sugarman, D., (ed.), 1983, Legality, Ideology and the State, 71.
Rheinstein, M., (ed.), 1954, Max Weber on Law in Economy and Society, 131.
Ibid., 318.
Ibid., 201.
Positivisation of Modern Law / David Risstrom / Page 6
led to what Weber calls ‘cautelary jurisprudence’, where emphasis is laid on instruments and devising anew
clauses to prevent future litigation. This phenomenon resulted in a close relationship between lawyers and
their clients, ie; this feature of legal practice compensated for the lack of systematisation in the law itself.
Therefore, Weber may have been saying that England developed a capitalist economic system despite the
absence of legal systematisation, because other important components of the legal system engendered it, but
that it may have developed even more rapidly and more efficiently if the common law had been less
irrational and unsystematic, yet Kronman says it sometimes seems as if Weber suggests that capitalism
flourished in England precisely because the common law was never rationally systematised. 1
This argument may have a ring of logic for it is arguable that rational consistency of the law may actually
impede the economic pragmatism that suits the economic needs of capitalism, though this does not seem to
be an accurate representation of Weber’s thesis, and a number of difficulties remain concerning the extent to
which he actually makes causal connections between economic and legal factors. Kronman describes as
‘causal agnosticism’ Weber’s refusal to assign causal primacy to either economic or legal conditions. 2
Kronman goes on to show that Weber identifies three ways in which the law influences economic factors.3
First, in providing a relatively stable set of rules for the protection of contractual expectations. Secondly,
certain legal concepts are crucial to economic development. Thirdly, specific economic legislation may
encourage certain forms of enterprise or economic organisation. On the other hand, economic factors may
influence law, ie; the manner in which English lawyers placed themselves at the disposal of their commercial
clients. Weber is therefore forced to concede that England achieved capitalistic supremacy among the
nations not because but rather in spite of its judicial system.4
CRITICISM’S OF WEBER’S THEORY OF LAW
Alan Hunt complains that “… at the root the contemporary status of sociology of law is marked precisely by
a lack of clarity as to its nature, purpose and direction; it is a hot-house plant, the forced offspring of the
deficiencies of sociological jurisprudence and the jurisprudential tradition in general”. 5
Hunt identifies three central problematics Weber poses for the sociology of law that point out the limitations
of Weber’s theories.6 First, Weber’s treatment of the relationship between law and domination is restricted
and even distorted by his reduction of domination to the personal relationship between ruler and ruled.
This leads Weber to treat “the ideological form of the legal order … as the real form of legal or political
relations”7, which may mean the process of domination is more complex than its formal, legal manifestation.
Secondly, Weber’s analysis of the relation between law and the bureaucratic State is distorted by his concern
with legitimacy, which accords unwarranted primacy to this aspect of the political structure. Thirdly, Weber
1
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3
4
5
6
7
Kronman, Max Weber, 123.
Ibid, 123.
Ibid, 125-30.
Rheinstein, M., (ed.), 1954, Max Weber on Law in Economy and Society, 231.
Hunt, A., 1978, The Sociological Movement in Law, 137.
Ibid, 130.
Ibid, 131.
Positivisation of Modern Law / David Risstrom / Page 7
adopts an excessively empiricist view of the world, and, fourthly, his sociology is sometimes considered
incapable of answering many of the questions of modern law. In a similar vein, Lloyd asks how the
problems of the contemporary welfare State can be solved by reference to a theory “irreversibly committed
to a model of capitalism tied to laissez-faire economics.”1
It is sometimes argued that sociologists of law are, in some instances, narrowly ‘positivistic’ in their
preoccupation with legal definition, a criticism Habermas details against Weber in On the Logic of
Legitimation Problems.2 Whilst Weber’s examination of the English legal system attempted to posit a causal
claim describing its system as relatively static, i f as he suggested, law provides a common sense context in
which rational purposive action is taken, this implies that should the law change it would cease having this
function. The validity of this claim is placed in doubt by the recognition by Cotterrell in The Sociology of Law
shows the law is not static, but very dynamic.3
For Weber, formally rational law is considered one of the preconditions of capitalism because it provides the
necessary certainty and predictability that is essential if entrepreneurs are to pursue profit-making
enterprises. Weber believed the achievement of the formal rationality required the systematisation of the
legal order, which he found was absent in the English law. Clearly, whilst English law lacked the systematic
order of the Roman law, it was as Weber recognised, a highly formalistic legal order. Indeed, Weber
characterised this formalism as irrational4, and effecting a stabilising influence on the legal system which
produced a greater degree of security and predictability in the economic market place.
Contemporary critics doubt the applicability of Weber’s claim that in the late 19th century Rechstaat, the
state whose legitimacy is based on the ‘rule of law’, formal rationality triumphed over substantive
rationality. Weber had argued that this lent modern law as a neutrality which made the basis of authority
independent of acceptance by citizens of particular moral or political values. Critics suggest that modern
law displays a fundamental reversal towards substantive rationality that takes the form of the growing
acceptance of discretionary regulation influenced by substantive questions of policy.
Weber frequently points to exceptions, limitations or even contradictions in his analysis of this reciprocal
relationship. Kronman says of this, “Every strong claim that he makes regarding the influence of one or
more or the other is qualified, somewhere in the text, by an assertion that the influence has only been partial
or indirect and has in any case been exerted in the opposite direction as well. To some extent, this agnostic
conclusion is illuminating.5
LUHMANN’S CRITIQUE OF LAW
Luhmann suggests, functions of the legal system, once established, can provide the framework for other
systems to develop. This has advantages over other mechanisms for achieving compliance, therefore
enabling the economy to emerge. The state in its modern welfare form relies on the fundamental alterability
1
2
3
4
5
Lloyd, D., Introduction to Jurisprudence, 557.
Habermas, J., 1976, ‘Max Weber’s Concept of Legitimation’ in Legitimation Crisis, 97.
Cotterrell, The Sociology of Law, 168.
Wacks, R., Jurisprudence, 155.
Kronman, Max Weber, 129.
Positivisation of Modern Law / David Risstrom / Page 8
of the law, and for Luhmann is essential in the modern business of the law. Luhmann seeks to differentiate
the legal system from other systems, claiming that as positivisation of law is a functional necessity of
modern societies, law has become a separate system responsible for regulating affairs between other
systems. Luhmann believes this is because societies create problematics for themselves which they then
respond to through a process of evolution, by creating a sphere of speciality and analogous intersystem
relations. The development of this decomplexity by differentiating and creating a subsystem devoted to
regulation of that society is assisted by the law which helps to regulate the intersystem relations. Luhmann
says,
“Law itself is a way of constraining behavioural expectations that is found in every society. The
functional specialisation of a discrete legal system however presupposes certain specularly law
related constraints. These necessarily pre-existing states can be applied in two distinct ways in the
process of communication. My thesis simply stated is; The successive separation and recombination
of these two applications are shifts in the process whereby a legal system can become relatively
autonomous.”
“It is increasingly questionable whether principles and ultimate perspectives [such as those of natural
law] withdrawn from all variation and relativity’ can provide an apt instrument for stabilisation and
control’ in modern societies.1
Luhmann believes the law has been fully positivised, saying, “The grand age of natural law, with its attempt
to depict the relation between man and society as basically a legal one, now lies far behind us.”2 Luhmann
sees the positivisation of law as necessary in order for it to be sufficiently flexible to accommodate for
changes in the other spheres of society. He claims it would be impossible to change the way society
interacts, such as evidenced by the evolution of the welfare state, if natural law was the major source of
modern law. He illustrates this by saying,
“What is particularly noticeable is that high, but nevertheless decidable, complexity, cannot be
regulated at the level of the whole society, but in the relation of a societal part system - namely the
political system, to its internal social environment. According to this conception, natural law and
positive law differentiate themselves in this - the former, imposed on society by the nature of its
environment and the latter selected and put into use by a part system, of society with reference to its
environment - namely society itself.”3
Luhmann goes on to say,
“It is not by chance then, that the conception of a ‘separation’ between state and society emerges a
time when law becomes positive. Positive law is an unavoidably politically chosen ‘state’ law. Its
destiny is bound up with that of the political system in society, because only in this way can the high
variability of law, through internal societal selection processes, be achieved. 4
1
2
3
4
Luhmann, N., 1982, The Differentiation of Society, 103.
Ibid., 90.
Luhmann, N., 1985, A Sociological Theory of Law, 186-7.
Ibid, 187.
Positivisation of Modern Law / David Risstrom / Page 9
It is probably no accident that at the same time as the notion of value began its philosophical career, the
suspicion of ideology arose to become nearly universal and, for the first time in history, law became
positive, or in other words was handed over to the decisions of the political system. 1 Luhmann suggests,
“Positive law is made valid by decisions: a law of any content whatsoever can gain legitimate legal
validity; and the same decision that makes the law a valid one can also withdraw its validity. At first
sight this seems a rather implausible postulate - not only for jurists, but for most of all for sociologists.
Nonetheless, it has become so much a reality that it dominated and characterises our law.”2
“For us, the foundation of law can no longer be located in a supreme natural law that exists
objectively and through its objective truth is permanently binding. The stability and validity of the
law no longer rests upon a higher and more stable order, but instead upon a principle of variation; it
is the very alterability of law that is the foundation for its stability and its validity.” 3
As such, Luhmann believes the stability of a social order secured by law must be ensured by primarily
political processes, in addition to the condition that complex legal orders preclude the possibility that
everything can be altered at once, and that subjective rights, or at least a monetary compensation for their
violation, are guaranteed.4
WEBER’S, LUHMANN’S AND MY OWN OPINION ON THE POSITIVISATION OF LAW
Weber differs from Luhmann in that he accepts the positivisation of law, but does not try to justify it in the
functional terms Luhmann proposes, suggesting a development that has occurred for historical reasons. It
appears that Weber is espousing a particular juristic doctrine that has grown from its study of the Prussian
and French Civil Codes which attempts to base its laws on a normative standard of natural law. 5
Weber defined natural law as, “The sum total of all those norms which are valid independently of, and
superior to, any positive law and which owe their dignity not to arbitrary enactment, but, on the contrary,
provide the very legitimation for the binding force of positive law.”6 Weber argued natural law was often
expressed very formal axioms, but in practice it involves bringing into the discussion of law problems or
practicability and usefulness.7
Weber’s theory of law appears to be premised on the notion that value judgements may be objective, a view
Habermas would surely disagree with, and one that I do not subscribe to, and one that seems to be in
conflict with his thoughts on social science. Weber appears to wish to confine the conceptual abstraction to
the jurist, and the empirical generalisation to the sociologist.8 Perhaps Weber justified this by delineating
1
2
3
4
5
6
7
8
Luhmann, N., 1982, Op cit., 93.
Luhmann, N., 1982, The Differentiation of Society, 94.
Ibid., 94.
Ibid., 96.
Albrow, M., 1975, ‘Legal Positivism and Bourgeois Materialism: Max Weber’s View of the Sociology of Law’ in
British Journal of Law and Society, 24.
Rheinstein, M., (ed.), 1954, Max Weber on Law in Economy and Society, 288.
Albrow, M., 1975, Op cit., 24.
Ibid., 29.
Positivisation of Modern Law / David Risstrom / Page 10
between law and the social sciences in his own schema, but my experience of the law is that the two can only
artificially be categorised as mutually exclusive.
Weber repeatedly uses the phrase “the logical interpretation of meaning”, but as Albrow asserts, meaning is
not interpreted by logic, rather it is understood through experience. 1
Albrow suggests the key to
understanding so many of Weber’s “paradoxical interpretations of the development of modern law” is
recognising his “extraordinary and irrational fascination with formal logic.” 2
Perhaps some recognition by Weber of this emerges when his acknowledgment that in the instance of
conflict of laws, there can be no appeal to legal principles, the only criteria being economic, ethical or
sociological.3 Weber appears so convinced that formal legal rationality has the same intimate connection
with the rationalisation of the natural sciences, with the logic of the lawyer seen as possessing the equivalent
of precision in natural science, that he discounts the obvious growing weight of substantive considerations in
modern law4
IN CONCLUSION
Whilst the increasing positivisation of law is a necessary requisite for an increasingly complex society, I
agree with Albrow’s assertion that if we leave the realm of professional activity solely in the realm of logic
and science, we will likely continue to propagate the substantively dysfunctional world we construct on
formally functionalist principles, and as such, continue to live in an expanding and alienating technocratic
society.
1
2
3
4
Ibid.
Ibid.
Albrow, M., 1975, ‘Legal Positivism and Bourgeois Materialism: Max Weber’s View of the Sociology of Law’ in
British Journal of Law and Society, 29.
Ibid., 30.
Positivisation of Modern Law / David Risstrom / Page 11
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