In the Grip of Freedom: Law and Modernity in Max Weber

245 Pages·2000·12.829 MB·English

by  Cary Boucock

IN THE GRIP OF FREEDOM:
LAW AND MODERNITY IN MAX WEBER
Faith in the utility and value of legal rights informs the political com-
mon sense of our age. In the Grip of Freedom examines the relationship
between Max Weber's Sociology of Law and his analysis of the struc-
ture and meaning of modern society. The interpretation of legal
phenomena plays a prominent role in Weber's account of the develop-
ment of the West and in his conception of the rationalism of modern
social arrangements. In this study, Gary Boucock looks at Weber's
social and political thought in the context of developments in Canada
following the 1982 enactment of the Canadian Charter of Rights and
Freedoms - namely, the movement towards a rights-oriented nation,
where broad social issues are routed through the courts, and the politi-
cal self-understanding of the citizen becomes increasingly tied to a
conception of the individual as a rights-bearing subject.
Boucock goes beyond conventional assessments of Weber's legal
theory and its applicability to understanding contemporary legal
developments. He explores the significance of Weber's sociology of law
theories within the larger compass of his sociological thought and illus-
trates the significance of Weber's sociology for interpreting the social
and legal practices of our time.
GARY BOUCOCKis Assistant Professor in the Department of Sociology
and Anthropology at Concordia University.
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IN THE GRIP
OF
Freedom
LAW AND MODERNITY
IN MAX WEBER
Gary Boucock
UNIVERSITY OF TORONTO PRESS
Toronto Buffalo London
www.utppublishing.com
University of Toronto Incorporated 2000
Toronto Buffalo London
Printed in Canada
ISBN 0-8020-4804-8 (cloth)
ISBN 0-8020-8342-0 (paper)
Printed on acid-free paper
Canadian Cataloguing in Publication Data
Boucock, Cary
In the grip of freedom : law and modernity in Max Weber
Includes index.
ISBN 0-8020-4804-8 (bound) ISBN 0-8020-8342-0 (pbk.)
1. Weber, Max, 1864-1920 - Contributions in sociological jurisprudence.
2. Sociological jurisprudence. 3. Civil rights - Canada. I. Title.
K370.B68 2000 340M15 COO-930768-0
This book has been published with the help of a grant from the Humanities
and Social Sciences Federation of Canada, using funds provided by the
Social Sciences and Humanities Research Council of Canada.
The University of Toronto Press acknowledges the financial assistance to its
publishing program of the Canada Council for the Arts and the Ontario Arts
Council.
University of Toronto Press acknowledges the financial support for its
publishing activities of the Government of Canada through the Book
Publishing Industry Development Program (BPIDP).
He who clings to a law does not fear the judgement that reinstates him
in an order he believes in. But the keenest of human torments is to
be judged without a law. Yet we are in that torment. Deprived of their
natural curb, the judges, loosed at random, are racing through their
job. Hence we have to try to go faster than they, don't we? And it's a
real madhouse. Prophets and quacks multiply; they hasten to get there
with a good law or a flawless organization before the world is
deserted.
Albert Camus, The Fall,
Trans. Justin O'Brien
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Contents
Acknowledgments xi
Abbreviations xiii
Introduction: Law and Modernity in Max Weber 3
Chapter One: The 'Specific and Peculiar Rationalism of
Western Culture' 19
1. The Formal Rationality of Modern Economic and Political
Arrangements 19
1.1 Capitalism and the Instrumental Calculus of Profit 22
1.2 Bureaucracy and the Methodical Observance of Rules 26
2. Weber's Existential Epistemology 29
2.1 The Positivistic Character of Modern Values 33
2.2 The Normative Power of Individual Choice and
Consent 35
3. The Conceptual Nexus of Formal Rationality and Value-
Positivism 39
Chapter Two: The 'Specific and Peculiar Rationalism' of Modern
Authority: The Problematic Relation between Modern Freedom and
Domination 41
1. Weber's Typology of Legal Rationality 41
2. The 'Specific and Peculiar Rationalism' of Modern Law 44
2.1 The Positivism of Legal Norms 45
viii Contents
2.2 The Formalism of Legal Relations 48
2.3 The Legalism of Modern Authority 51
3. Individual Autonomy and Formal Legal Rationality 54
3.1 The Legal-Rational Reconstitution of Normative Power 54
3.2 The Legal-Rational Reconstitution of Social Arrangements 59
4. Formal Legal Rationality versus Individual Autonomy 65
4.1 Contractual Association and the Problem of Substantive
Autonomy 67
4.2 Modern Authority and the Problem of Substantive
Justification 71
5. Weber's Disillusioned Affirmation of Formal Legal Rationality 76
Chapter Three: The Developmental History of Modern Law 81
1. Legal Rationalization and the Rise of Modern Capitalism 82
1.1 The Belief in a Theodicy of Higher Law 86
1.2 Legal Domination and the Societalization of Power 88
1.3 The Demise of the Metaphysical Dignity of Law 91
2. The Thorn' of Weber: Habermas and the Problem of Modern
Authority 94
2.1 Legal Rationalization and the Juridification of Power and
Authority 97
2.2 Recovering the Normative Rationality of Modern Law 99
3. The Heuristic Value of Weber's Disillusioned Realism 101
Chapter Four: The 'Dynamic' of Legal Rationalization: An
Interpretation of Recent Trends in Legal Development 106
1. The Developmental Directions of Legal Rationalization 107
1.1 The Formalization of Social Arrangements 109
1.2 The Positivization of Value-Orientations 116
2. The Developmental 'Dynamic' of Legal Rationalization: The
Entanglement of Detached Selves and the Detachment of Entan-
gled Individuals 124
Chapter Five: The Constitutionalization of Individual Rights in
Canada: A Case Study in the 'Dynamic' of Legal Rationalization 131
1. The Rise of Judicial Forms of Political Power in the Rights-
Oriented Polity 133
1.1 Formal Legal Rationality and the Problem of Value-
Setting 136
Contents ix
1.2 Judicial Review and the Depoliticization of Value-setting 141
2. The Underlying Substantive Coherence of Charter
Adjudication 144
2.1 The Selective Protection and Promotion of Individual
Autonomy 145
2.2 The 'Dynamic' of Legal Rationalization 149
Chapter Six: The Limits of Formal Legal Rationality: An
Interpretation of Weber's Theory of Modern Politics 156
1. The Countertendencies of Rationalization 157
1.1 The Dynamic of Charisma and Routinization: The Role of
Value-Oriented Conduct in Cultural Innovation 159
1.2 Cultural Devitalization and the Reification of Values 162
1.3 Political Servitude and the Depoliticization of
Value-Setting 165
2. Weber's Political Response to the Modern Condition: Articulating
the Limits of Formal Legal Rationality 168
2.1 Weber's Institutional Formula for Subordinating Legal
Rationality and Resisting the Routinization of Value-
Setting 171
2.2 A Decisionist Ethic for the Politicization of Value-Setting 176
Conclusion: In the Grip of Freedom 182
Notes 191
Bibliography 213
Legal Cases 223
Index 225