Max Weber's Interpretive Sociology of Law

Michel Coutu

• Publisher: Routledge
• Year: 2018
• Topic: Law
• eBook ISBN:
  9781317238430
• Subtopic: Jurisprudence
• Index: Law

This book presents a clear and precise account of the structure and content of Max Weber's sociology of law: situating its methodological and epistemological specificity in relation to other approaches to the sociology of law; as well as offering a critical evaluation of Weber's usefulness for contemporary socio-legal research. The book is divided into three parts. The first part deals with the methodological foundations of Weber's sociology of law. The second analyses the central theme of this sociology, the rationalisation of law, from the perspective of its internal logical coherence, its empirical validity, and finally its legitimacy. The third part questions the present-day relevance of the Weberian sociology of law for socio-legal research, notably with regard to legal pluralism. Max Weber, it is demonstrated, is not merely a 'founding father' of the sociology of law; rather, his methodology, concepts, and empirical analyses remain highly useful to the further development of work in this area.

Part I
Methodological foundations

Chapter I
The starting point: Max Weber’s critique of Stammler

The first time that Max Weber wrote systematically about the methodological foundations of legal sociology was in his Critique of Stammler.¹ At first glance, one may think that the two studies that form this Critique, written in about 1907, played only a marginal role in Weber’s work, adding at most a certain historical interest for what is in fact a century-old debate, marked by the almost complete obscurity into which Rudolf Stammler has fallen for several decades. But the reverse is actually true. It is now the communis opinio of Weber specialists that the Critique of Stammler is an important milestone in the formulation of his original and ground-breaking views on the theory of social science.² Nor can it be doubted that an attentive reading of Weber’s two texts on Stammler gives access to his sociological concepts: Weber himself stated, right from the ‘Prefatory Note’ (Vorbemerkung) that introduces the text of Economy and Society, that Stammler’s work is the source of serious errors: that is why he refers to his Critique of Stammler published in 1907³ in the Archiv für Sozialwissenschaft, emphasising that it ‘contains many of the fundamental ideas of the following exposition’.⁴ Previously, in his 1913 essay on ‘Some Categories of Interpretive Sociology’, Weber wrote the following introductory note, which could not be more explicit about how important he felt it was to refute Stammler:

It will be readily apparent furthermore, that the construction of concepts undertaken here shows relationships of outward similarity but of the strongest inner divergence from the formulations of R. Stammler (Wirtschaft und Recht), who is as eminent as a legal scholar as he is the producer of disastrous confusion as a social theoretician. This divergence is intentional. The construction of sociological concepts is largely a question of usefulness. We are in no sense required to construct the categories in Parts V through VII. They are developed in part to show what Stammler ‘should have meant’.⁵

But most decisive for this study is the fact that opposing Stammler delivers the basis of Weber’s views about law, especially as regards the relationship between economy and the law that forms the core of his interest in legal sociology. Not only is the crucial development about ‘The Economy and Social Norms’⁶ in itself an extension of Weber’s critical thoughts directed against Stammler in 1907, but the thrust of his Sociology of Law, that is, Chapter VIII of Economy and Society,⁷ should also be understood, at least partially,⁸ as a more empirically based refutation of Stammler’s views on the relationship between economy and the law, using the historical and comparative method.

However, the following questions, which do not seem to have been much studied by Weber’s commentators, or at least are only alluded to in the current literature, must be addressed: is it true that Weber bluntly rejected all of Stammler’s ideas about the interaction of law with the economy, which is certainly the impression one gets when reading his vociferous rebuttal of Stammler? Was Weber’s legal sociology not influenced to some degree by at least some of Stammler’s viewpoints, although undoubtedly in a highly critical way? And, if so, what was in fact kept or reworked by Weber, and what can we learn from this about Weber’s thoughts on law?

Answering those questions may give valuable insight into Weber’s sociological understanding of law, which is not easy to grasp. Such understanding permeates (although in a quite unsystematical way) most of his sociological, methodological and political writings, the coherence of which has to be extracted and reconstructed from an immense amount of historical-comparative observations. Weber’s Sociology of Law, despite its impressive depth of thought, elaborate conceptual apparatus and the almost unbelievable accumulation of legal knowledge it displays, is characterised by a fundamentally loose structure and no clear outline of its organising principle.⁹

Furthermore, the questions raised earlier are not simple to answer, because they presuppose an accurate understanding of Weber’s evolving position with respect to very difficult texts. Nor can this position be fully appreciated without knowing precisely what Stammler argued and Weber attacked. It is inconceivable to think of examining Weber’s text without a proper understanding of Stammler’s position.¹⁰ If Stammler’s ideas are ignored, the precise reach of Weber’s critique cannot be understood.¹¹ Stammler’s text must be studied closely in order to analyse Weber’s argumentative blows against it, which includes several remarks scattered throughout Weber’s oeuvre.

In this chapter I present Stammler’s basic concepts about social life, the economy and the law and discuss some of his methodological statements as they compare to Weber’s own perspective. To further assess the superiority of Weber’s positions, I will refer to the views of two scholars who were influenced by Stammler, although in quite different ways: the economist Karl Diehl and the labour lawyer and legal sociologist Hugo Sinzheimer.

1. Rudolf Stammler’s concept of social life, the economy and the law¹²

The works of Rudolf Stammler (1856–1938) are numerous, dense and difficult to read. Stammler, a professor of private law and philosophy of law in Berlin, produced a great deal in both fields; even when considering only his philosophical works,¹³ the task of understanding them accurately appears quite insurmountable. Fortunately, Stammler’s famous book Economy and Law according to Historical Materialism¹⁴ presents a lower degree of difficulty, at least as regards the most relevant developments from the viewpoint of legal sociology. It is also possible to get a more accessible overview from the works of Stammler’s contemporaries who were influenced by his thought, such as the enlightening essay that Hugo Sinzheimer (1875–1945), the most important theorist of labour law at the time and also a well-known figure in the German sociology of law,¹⁵ devoted to the work of his close friend Stammler.¹⁶ This essay, written in 1939 following Stammler’s death and while Sinzheimer was in exile in the Netherlands, is entitled ‘Formalismus in der Rechtsphilosophie’.¹⁷ It presents a totally accurate and remarkably concise summary of Stammler’s thought.

According to Sinzheimer, three distinct points must be studied in order to understand Stammler. They are all connected to the central idea of Gesetzmässigkeit (a concept to which we will return in a moment): a) what Stammler calls the ‘monism of social life’ (Monismus des sozialen Lebens), meaning the inevitable reduction of all knowledge of social life to a single regularity of the order of a ‘law’ b) the ‘social ideal’ (der soziale Idealismus), which posits a unity of the goals of social life, which Stammler describes as a ‘community of free-willing men’ (Gemeinschaft frei wollenden Menschen); c) the theory of the just law (Lehre des richtigen Rechts); the social ideal is transposed to the level of positive law, and Stammler’s critical theory also raises the issue of the justice of the existing law: Stammler is not satisfied with the sole principle of legality as the criterion of norms validity.

1.1 Social monism

The question of the ‘nomological regularity’ (Gesetzmässigkeit) or ‘legality’ of social life underlies all of Stammler’s work.¹⁸ It is the task of science to discover this legality. In other words, Stammler wants to bring to light the fundamental law that regulates social life. To understand this idea, writes Sinzheimer,¹⁹ it is necessary to grasp the sources of social philosophy that Stammler defends. These include historical materialism, even though Stammler is not at all Marxist: it illustrates in an exemplary fashion this search for a fundamental unity of social life. The determination in the final instance by economy is incorrect for Stammler, but it is the approach, this search for Gesetzmässigkeit, which one must pursue and achieve.²⁰ The second source is the Neo-Kantianism of the Marburg School, that of Hermann Cohen and Paul Natorp, to whom Stammler would dedicate his Wirtschaft und Recht. Stammler would take up in the social sciences (in which Cohen and Natorp had no inter...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Introduction
• Part I Methodological foundations
• Part II Rationalisation of law
• Part III Weberian sociology and contemporary law: some key aspects
• Conclusion
• References
• Name index
• Subject index