David Sugarman 222 ism’^ in Western civilisation which, above all, explained the distinctive characteristics of modern Western society and why industrial capitalism first arose in the West. More than the other classical sociologists, Weber provided the most thorough and historically informed analysis of the role of lawin economy and society. The richness of his thought stems from the range of issues he addressed, the breadth of his learning, his strong comparative and historic bent and the tensions between those of his assertions that are highly functionalistic and those which seemingly repudiate causal connections of a functionalistic sort. Irrespective of his actual findings, his writings touch upon and illuminate many of the key issues of contemporary social and legal theory, and the historical sociology of law. His work is probably unparalleled in this respect. Let us briefly consider Weber’s investigation of the causal importance of “rational law”. Capitalism, argued Weber, required not only changes in production and technology, but also a calculable (i.e., predictable) legal system. Formally rational law (i.e., legalism) was the most calculable type of law and therefore best suited to the requirements of capitalism. Irrational law and substantively rational law were incapable of satisfying capitalism’s need for “... the legal systemto operate like a technically rationale machine.”'® Some commentators treat his commitment to the causal importance of formally rational law (legalism) as unequivocal.'^ The result is a highly functionalistic and patently flawed vulgar Weberiamsm. Upon further investigation, however, his views turn out to be more complex and contradictory. In answer to the question, “Can it be said that a stable private economic system of the modern type would be ‘unthinkable’ without legal guaranteesWeber insightfully set out what he saw as the significant limits on legal coercion in economic life. His position seems to have been that whilst the theoretical implicaof Commercial Disputes and the Legal System in Modern England”, British Journal of Lawand Society, 7, 1980, pp. 141-57 and “Commercial Expectations and the Guarantee of the Law; Sales Transactions in id-19th Century England”, in G. Rubin and D. Sugarman (eds.). Law. Economy and Society, 1750-1914: Essays in the History of English Law', (Abingdon: Professional Books, 1984), pp. 192-208; D. Trubek, “Reconstructing Max Weber’s Sociology of Law”, Stanford Law Reyiew, 37, 1985, pp. 919-35 and “Max Weber’s Tragic Modernism and the Study of Lawin Society”. Law and Society Review. 20, 1986, pp. 573-98. The best, single guide to Weber’s notion of “rationality” is an excellent, lucid study by Rogers Brubaker, The Limits of Rationality: An Essay on the Social and Moral Thought of Max Weber, (London; Allen and Unwin, 1984). Brubaker argues that Weber used the notion of “rationality” in at least sixteen different senses! Whilst “rationality” meant different things in different aspects of Weber’s work, Brubaker contends that the apparent confusion w’ithin Weber’s thought conceals a unity of thought, in that common themes and characterisations of rationalisation recur throughout Weber’s vast corpus. Rheinstein, op cit., p. 28; Ferguson, “Lawand Commercial Order”, op.cit., p. 27. See, for example, P. Walton, “Max Weber’s Sociology of Law'” in P. Carlen, (ed.). The Sociology of Law', (Keele: Sociological Review', 1976), chap. 1. M. Rheinstein op cit., pp. 29-30.
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