225 In the spirit of weber imbibed by Weber was the product of a distinct and historically specific legal and political culture. And this, at last, brings me to the deviant case of England. Weber further qualified his assertion of the causal importance of “rational law” in one further important respect. This was in the context of his discussion of England.^-"' He contended that English law did not meet his criteria of formally rational law. Instead, he contrasted the logical formalism of Continental law with the empirical justice of the common law. Did this mean that English law had not served English capitalism? Or, did it mean that his notion of formal rational law and the causal importance he attributed to it required some qualification? Trubek summarises Weber’s dilemma thus: “As Weber analysed the relationships between law and economy in English history, the nation’s growth presented two major problems for his theories. On the one hand, England seemed to lack the calculable, logically formal, legal system that he frequently identified as necessary for initial capitalist development. On the other hand, capitalism, once it became established in England, had little, if any, appreciable effect on the rationalisation of English law ... Nevertheless, capitalism had first emerged in England, and England was undoubtedly a formidable capitalist regime ... In a series of brief and contradictory passages, Weber suggested ...: (1) The English legal systemoffered a lowdegree of calculability but assisted capitalism by denying justice to the lower classes. (2) England was unique in that it achieved capitalismnot because, but rather in spite of, its judicial system. The conditions allowing this, however, did not prevail anywhere else. (3) The English legal system while far from the model of logically formal rationalitv, was sufficiently calculable to support capitalismsince judges were favourable to capitalists and adhered to precedent. Overall, Weber’s position seems to have been that the common lawwas just as conducive to capitalist development as the formally rational law of the Continent. Thus, Cf. T. Bottomore, “Vote, Shut up and Obev”, Times Literary Supplement 1985, April 19, pp. 429-30. For useful discussions of “the English problem” in Weber’s sociology of law sec: Trubek, “Max Weber on Law and the Rise of Capitalism”,, op cit., pp. 746-8; Flunt, p cit., pp. 122-8; Kronman, op cit., pp. 120-24; W. Schluchter, The Rise of Western Rationalism: Max Weber’s Developmental History, (Berkeley: University of California Press, 1981), pp. 87-101; Ferguson, “Law and Commercial Order”, op cit., pp. 31-6; Guben, The ‘England Problem’ and the Theory of Economic Development, (New Haven: Yale Law School Program in Law and Modernization, Working Paper No.9, 1972); Cain, “The Limits of Idealism”, op cit., pp. 70-6. Two general essays by Perry Anderson are especially valuable (and controversial): “Components of the National Culture”, New Left Review. No. 50, 1968, pp. 1-63, and “The Figures of Descent”, New Left Review, vii No 151, 1987, pp 20-77. Finally,. Richard Johnson has produced a useful survey that relates the “peculiarities” issue to debates within modern English history: “Barrington Moore, Perry Anderson and English Social Development”, in S. Hall et al, (cds.). Culture. Media, Language, (London: Hutchinson, 1980), pp. 48-72. Trubek, ibid., p 747.
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