The Disenchantment of Logically Formal Legal Rationality or Max Weber's Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought
Max Weber began his sociology of law with a description of the then present of Western legal thought, along with a brief summary of its previous stages. This appreciation begins with a summary description of the Western legal thought of Weber's time, as it looks from our present 100 years later, emphasizing the contrast between the mainstream of his time, now called Classical Legal Thought, and its critics in the social current. Part II presents Weber's sociology of law, comparing and contrasting his approach with that of the social current. The most striking thing about Weber's sociology of law, from the perspective of legal theory a century after he wrote, is his ambivalent endorsement of legal formalism. This entailed rejection of the social current's critique, a critique that is close to universally accepted today. In Part III, I explain Weber's attitude toward legal formalism as motivated by the internal requirements of his theory of domination, in which, after the demise of all earlier modes of legitimation, the Iron Cage of modernity is held together by bureaucrats defined by their adherence to that mode of legal reasoning. Part IV argues that Weber's approach was inconsistent with the irrationalist and decisionist strands in his own theory of modernity, a theory that helps in understanding the current situation of legal thought, if we take the un-Weberian step of applying it to legal formalism. Finally, Part V offers an interpretation of the contemporary mode of legal thought as an episode in the sequences of disenchantment and reenchantment suggested by Weber's philosophy of history, and uses Weberian elements to construct a distinct contemporary ideal type of legal thought. The very brief conclusion suggests the strong affiliation between Weber (read as above) and one of the sects of modern legal theory, namely critical legal studies.
Economics | Jurisprudence | Law | Law and Society | Legal History | Religion Law
Date of this Version
Duncan Kennedy, "The Disenchantment of Logically Formal Legal Rationality or Max Weber's Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought" (February 28, 2004). bepress Legal Series. bepress Legal Series.Working Paper 148.