224 David Sugarman onwhat is tangibly perceivable as far as it is required for security to do business, the law has at the same time become informal for the sake of business good-will where this is required by the logical interpretation of the intention of the parties or by the ‘good usage’ of business intercourse, interpreted as some ‘ethical Statements such as this acknowledge that factors other than general state law norms and judicial precedent interact with or even by-pass the state legal order so as to facilitate predictability in business transactions. Calculability is not the monopoly of the state laworder.^° In some situations, custom and practice provide the requisite predictability. Unfortunately, Weber did not devote much attention to custom and practice, the desire for business “goodwill”, the development of standard form contracts and facilitative laws. His major preoccupation was with juristic discourse (thought). As a result, he exaggerated the importance of the state legal order, especially juristic thought, relative to the other aspects of state and non-state ordering and organisation. How might we explain his fixation with judicial discourse? Weber’s work on law constitutes a “sociology of legal thought”^* as distinct froma general, all-round sociology of law. It is the formal characteristics of law rather than the substantive content of legal doctrine that is the focus of his investigation. Whilst he does not totally neglect the difficulties of implementing lawin practice - for instance the mediation of laws by administrators and individuals and the problems of expense - he is much more concerned with the character of judicial reasoning. The connection made by Weber as between judicial reasoning, calculability and formally rational law stemmed, in part, fromWeber’s largely uncritical appropriation of the dominant conception of the ideal legal formin the German legal science of his youth, namely, Pandecticism. The Pandectist legal scholars of Germany strove for a form of law that was internally coherent, highly systematised and formalised. Their high priest was, of course, Savigny. Now Savigny argued that, with a bit of juristic assistance, law could and should resemble mathematics in its certitude and rigour.33 Weber seems to have more or less taken at face value the Pandectist’s assertions that as law approached the ideal the more it became a closed and separate sphere of discourse. In Weber’s sociology of law, the Pandectist’s ideal type was transformed into a general theory of Western legal development. In other words, far frombeing the innate legal discourse of modern capitalist societies, the Pandectist form of law Ibid., p. 894. See, further, D. Sugarman, op. cit., pp. 215-8 and D. Sugarman and G. Rubin, op cit., pp. 912, 84-97. See also, infra. M. Rhcinstein, op cit., p. xxxiv. See Ferguson, “Lawand Commercial Order”, op cit., chap. I. F.C. van Savigny, of the Vocation of Our Age for Legislation and Jurisprudence, (London: Littlewood & Co ... 1831), pp. 389 and passim. See, also, M.H. Hoeflich, “Law’ and Geometry: Legal Science from Leibniz to Langdell”, AmericanJournal of Legal History, 30, 1986, pp. 95-121. ’”29 minimum
RkJQdWJsaXNoZXIy MjYyNDk=