Another major contribution to the absolute autonomy argument comes from Weber (1922). As will become clear later in this review, this contribution reflects more of his views on universalistic laws (the code systems) than on particularistic laws. Further, it is noted here that the characterisation of Weber's contribution as falling within absolute autonomy argument is different in one respect from those of scholars like Paul Walton and Alan Hunt. Although both of them agree that Weber’s position is a contribution to an autonomy model of law and society, they put this contribution into a relative autonomy category. Walton (1976: 12) merely attributes to Weber the view that "law is to be seen as relatively independent of a given social system". He does this in the context of agreeing with the degree of independence which Weber appears to have attached to law, even though he would not go as far as adopting the opposite "crude view" that law is merely a reflection of material reality".
Hunt (1978: 118) is more definite on the view that the autonomy which Weber attaches to law "is ... relative rather than absolute". He summarises Weber's position on this issue to be that "law ... constitutes a sphere of autonomous social reality which, while
influenced in its development by economic forces, in turn also influences the economic (and indeed other) processes within the society". It is interesting that the portions of Weber's work which Hunt cites to highlight this point are the same portions that have created the impression for my characterisation of Weber's contribution as an absolute autonomy argument.
There is no doubt that Walton's and, in particular, Hunt's analyses of Weber's sociology of law in general, leading to their characterisations of his contribution as a relative argument, are highly insightful and profitable. Besides, it would appear consistent with the sociological general stance on the contingency of social phenomena that Weber (the sociologist) should be relativistic. In fact it is arguable that certain historical illustrations which Weber used to demonstrate the development of law strongly suggest not only a relative autonomy argument as Walton and Hunt have picked out, but also a social product model. However, his typology of the rational and irrational laws which forms the foundation of his developmental model of law, and to which these illustrations are largely incidental, amounts to an absolute autonomy argument. The constraint of space allows only an outline of Weber's exposition here.
Whether or not Weber has attempted to develop a systematic sociology of law - depending on whose view is considered, e.g Hunt (1978: 93) says he has^ and Rheinstein (1954: xlvii) says he has not - it can be observed that the relationship between law and society forms a major part of the core of his sociological enterprise, viz: to understand what has made the West unique in its adoption of the capitalist social order. As will be seen, since he finds the key to the uniqueness of the West in "rationality", Weber follows the rationalist tradition in his analysis of the relationship between law and society.
4 Hunt cites Talcott Parsons' suggestion that "the core of Weber's substantive sociology lies ... in his sociology of law", apparently, in support of his affirmative view.
Weber's election to deal, in his analysis, principally with the 'internal' modes of legal thought suggests a positivist orientation. This is reflected in his conception of law as an order which "is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity or avenge violation, will be applied by a staff
of people holding themselves specially ready for that purpose". This is "an unashamedly positivistic definition of law", but Hunt (1978: 104) who makes this statement says, "it is not sufficient grounds for labelling him a 'legal positivist'" as Martin Albrow has done. Yet, this conception reinforces Weber's concern for the internal characteristics of law - a concern which, more than any other criteria, seems to have set apart scholars in the school of analytical jurisprudence as legal positivists.
In my view, Weber might avoid the label of positivism not simply because his definition of law can be defended as a "neutral starting point, one that remains acceptable to jurists and sociologists alike" (Hunt, 1978: 104), but rather because of his recognition, quite contrary the legal positivistic stance, of the influence of natural law upon positive laws. This is indicated in his definition of 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" (Rheinstein, 1954: 287f) (emphasis, mine).
Like Spencer, Weber acknowledges that there was a time when legal rules were "not conceived as the products, or as even the possible subject matter, of human enactment. Their' legitimacy' rather rested upon the absolute sacredness of certain usages ..." (Ibid:
76). Where the rules emerged through explicit imposition, he continues, it was "through a new charismatic revelation [- the primeval revolutionary element -] which undermines the stability of tradition and is the parent of all types of legal 'enactment'". Further, he acknowledges the influence of natural law dogmas upon contemporary law making and law-finding; and that some of these dogmas "survived the economic conditions of the time of their origin and have come to constitute an independent factor
in legal development" (Ibid: 296). In this analysis, a strong link is established between natural law and autonomous development of law.
The acknowledgement of this link dovetails into the position at which he had arrived in a doctoral dissertation he submitted in 1889, entitled: "Geschitche der Handelsgesselschaften im Mittelalter" (On the History of the Companies in the Middle Ages). From the stand-point of refusing "to see law as any mere reflection of the material interests of the capitalist class" or "avoiding Marx’s economic determinism" (Albrow, 1975), he posed the following question for the dissertation: "How and in what formations and developments did certain modem commercial forms, especially partnership firm, come about?" (quoted in Brand, 1982: 95).
His conclusions in the dissertation clearly imply the notion that law is autonomous from any economic base or expression of Folk consciousness, contrary to the views in Marx and the romantic-metaphysical approach of the Historical School of Jurisprudence regarding the question of the emergence of legal n o r m s t . In a comparative reference to the developments in England and Germany, Weber says:" generally it appears ... that the development of the legal structure of organisations has by no means been predominantly determined by the economic factors" (Rheinstein, 1954: 176). As I have indicated above, the link of this autonomy of law with natural law keeps his approach out of the camp of the legal positivists as much as these other theoretical camps.
However, Weber's formalist notions of law-making and law-finding have kept him close to positivism. He expounds these two activities in terms of the substantive/formal and irrational/rational axes. Law-making and law-finding are substantively irrational if they are "influenced by concrete factors of the particular case as evaluated upon an ethical, emotional, or political basis rather than general norms". They are "formally irrational" if the means applied in them "cannot be controlled by the intellect, for instance when recourse is had to oracles or substitutes thereof'. The converses of
substantive and formal "irrationality" are substantive and formal "rationality"; one involves the guidance of clearly conceived and articulated general principles which accord predominance to ethical, utilitarian and other expediential rules; the other involves the guidance of definitely fixed legal concepts in the form of highly abstract rules without consideration for extrinsic (non-juristic) factors (see Ibid: 61-64; and, for a tabular representation of this typology and its relation to Weber's developmental model of law, see Hunt, 1978: 104-109).
Weber's formalist notions of law-making and law-finding seem to come together concretely in his characterisation of the French Civil Code. According to him, "the Code is completely free from the intrusion of, and intermixture with, nonjuristic elements and all didactic, as well as all merely ethical admonitions; casuistry, too, is completely absent" (Rheinstein, 1954: 285). Invariably, he conceives this Code as a product of rational legislation, as against the Anglo-Saxon law which is a product of juristic practice and the Roman ius civile (common law) which is a product of
theoretical-literary juristic doctrine. The Code's
characteristics are expressions of a particular kind of rationalism, namely the sovereign conviction that here for the first time was being created a purely rational law, in accordance with Bentham's ideal, free from all historical "prejudices" and deriving its substantive content exclusively from sublimated common sense in association with the particular raison d'etat of the great nation that owes its power to genius rather than to legitimacy (Ibid: 286).
He also sees in "its imitations all over Western and Southern Europe" the strength of the universal appeal of the Code's "extraordinary measure of lucidity as well as a precise intelligibility in its provisions". The fact that the imitations are possible because of "the abstract total structure of the [Code] and the axiomatic nature of [its] many provisions", as opposed to parallel development of social conditions, underlines the tenuousness, if not the absence, of any relationship between the Code and its original society.
Whereas Weber's absolute autonomy position on law-society relations involving code systems should be obvious from the foregoing, his treatment of some other laws require that some caution be noted; and this is one area where Walton’s and Hunt's attribution of a relative autonomy view to Weber finds apparent support. For instance, on the commercial law, which he regards as "one of the most important instances of modem specialisation", Weber adopts an analytical approach/inference that seemingly assumes a social product view as will be shown in what follows.
In the course of a rather sketchy, if not substantially empty, review of the history of the German Commercial Code, Weber asserts: "commercial law, then, inasmuch as its application is personally delimited, is a class law rather than a status-group law" (Ibid:
302). In another instance, he presents as one of two "causes ... responsible for the emergence of ... particularistic laws", "the occupational differentiation and the increasing attention which commercial and industrial pressure groups have obtained for themselves" (Ibid: 303). Put differently, "as our brief sketch has shown", he says, "... the great differences in the line of development [perhaps, between universalistic and particularistic laws] have been essentially influenced ... by the diversity of political power relationships" (Ibid: 304).
On the face of assertions such as these, it might appear that Weber is far from being consistent in his position on the source and nature of law. Considered together with his description of the differences in the structure of domination which "squares with the view that they are the outcome of material power struggles between contending classes", it is arguable that "indeed Weber undermined his own 'autonomy' argument" (Walton's, 1976: 13-14). It is nonetheless correct to observe that Weber sees as
anomalous the development of modem law which incorporates "substantive rationality" - like considerations of economic advantage, justice, morality, welfare and public good. At best, it is an expediency.
For the most part, Weber appears to regard law in its highest form (e.g the code system) as totally autonomous, but recognises that in practice particularistic laws are influenced by social factors. His emphasis on the autonomous development of law can be readily discerned from his claim that
the general development of law and procedure may be viewed as passing through the following stages: first, charismatic legal revelation through "law prophets"; second, empirical creation and finding of law by legal honoratiores, i.e, law creation through cautelary jurisprudence and adherence to precedent; third, imposition of law by secular or theocratic powers; fourth and finally, systematic elaboration of law and professionalised administration of justice by persons who have received their legal training in a learned and formally logical manner (Rheinstein, 1954: 303).
It is hard to see substantive interface between law and society in any of these stages. The historical examples in which he appears to be demonstrating the relation between particular political forms and the corresponding legal development largely illuminate the rationalisation process through which law acquires logical rationality and not the emergence of new legal rules per se. Weber's preoccupation with the internal processes of law with a view to determining the ideal type of legal rationality, or his "view of law as indexing a historical movement towards increasing rationality" (Grace and Wilkinson, 1978: 61), tends to overshadow his quest for the social basis of particularistic legal order. Further, this preoccupation has kept alive, rather than dispelled, the spectre of legal positivism over his contribution to the law-society relation in general.