David Sugarman 226 once everything is said and done about these differences in historical developments, modern capitalismprospers equally and manifests essentially identical economic traits under legal systems containing rules and institutions which considerably differ from each other, at least from the juridical point of view ... These differences have had some tangible consequences both economically and socially; but these consequences have all been isolated single phenomena rather than differences touching upon the total structure of the economic system. ”37 This position has important ramifications for the Weber thesis. That thesis cannot amount to more than that formally rational law is valuable for, or is most compatible with, the development of capitalism. As England became capitalistic without formally rational law, he cannot assert that formally rational law is essential to capitalism. So what has become of the causal importance of “rational law”? Does not Weber’s qualification reduce the formof law to the status of a dependent variable: capitalism will take place notwithstanding the form of law? Not quite. “OnWeber’s own account the structure of legal thought is not in itself epiphenomenal: capitalismis not compatible with ordeals, oaths and oracles. What is epiphenomenal is the difference between empirical law (i.e. the form of law in England) and formally rational law, both of which are more or less rational and hence calculable.Thedifferences between themdo matter - “... at least fromthe juridical point of view/”^"^ Weber’s concession also has implications for his analysis of the extent to which economic factors determined legal development. The existence of formally rational lawon the Continent cannot be explained as purely the product of capitalism because formal rational law did not exist in England. "... [The] essential similarity of the capitalist development on the Continent and in England has not been able to eliminate the sharp contrasts between the two types of legal systems ... We may thus conclude that capitalism has not been a decisive factor in the promotion of that form of rationalisation of the law which has been peculiar to the Continental West ... ”40 By implication, the peculiar formof English law (empirical justice) cannot be explained wholly in terms of the rise of capitalism because empirical justice Weber, op cit., pp. 890 and 891. Maureen Cain has argued that Weber’s discussion of the English can be interpreted as arguing that the English Common lawwas more finely tuned to the needs of capitalism than its Continental counterpart: see Cain, “The Limits of Idealism”, op. cit., pp. 70-6. For a variant of this thesis, see R. M. Hartwell, “The Industrial Revolution and Economic Growth” and “Legal Change and Legal Reform and Economic Growth Before and During the Industrial Revolution”, in H. Flinn (ed.), proceedings of the 7th International History Congress, (Edinburgh: Edinburgh University Press, 1978). vol. 2, pp. 216-22. 38 Ferguson, “Lawand Commercial Order”, op. cit., p. 35. Weber, op. cit., p. 890, cited by Ferguson, ibid. ■*2 Weber, op. cit., p. 892.
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