David Sugarman 250 traits are symptomatic of a larger irrationality. Law, it seems, was the tip of an irrational iceberg that also encompassed a great deal of society and state in eighteenth and nineteenth century England. Insofar as historians and social theorists have tended to portray the development of England as evolving towards increasing rationality, with law playing the role of a dependent and unproblematic variable, Weber’s work and the historical record suggests that they have unduly neglected the irrational features of law, state and society. But to acknowledge the important role of irrationality, in the Weberian sense, in modern society does not require that we lose sight of those “rational” elements of England’s modernising route, w'hich co-existed alongside the irrational. What were some of these rational elements? There is the early establishment of capitalism, possibly 150 years prior to elsewhere. To the early development of capitalism/individualism must be added an institutional accident of incalculable consequences: that when the monarchs called up estates and their representatives into parliaments, the Knights of the Shire were somehow put with the burgesses and citizens, not with the greater nobility as happened in almost every other country of Continental Europe.So the English gentry were in this vital way institutionally different fromthe lesser nobility’s of other nations. The fact that only the titular peers were a distinct sub-species, to be tried only by members of their own order, was surely a very important legal difference fromcountries where the whole of the gentry were privileged; but legally they did have to “muck in”, so to speak, more than nobility’s elsewhere. And whether or not they were “rural bourgeoisie” themselves (as some commentators claim), they were certainly interpenetrated with the upper urban bourgeoisie in all kinds of ways. In the modern period, it was the lawthrough “... the peculiar ultra-rationality of English Utilitarianism ... epitomised by Bentham, Brougham and many other lawyers which reacted against many of the irrational elements t')f the English ancien regime. Indeed, Bentham’s Constitutional Code appears as a forerunner of Weberian rational-legal institutions. The attack on the “pre-modern” features of English society undoubtedly quickened in the period after 1850.^"*^ “The excesses of the Old Corruption were progressively eliminated, taxes on consumption were reduced, non-conformists were able to breach the Anglican monopoly of state employment and higher education, working hours were restricted , trade union funds were legaily protected, strikes were increasingly tolerated and in 1867 a significant I amgrateful to Dr. Gerald Avlmer for kindly drawing this to my attention. Cf., the discussion in note 132 above. Rubinstein, op., cit., p. 82. See L. J. Hume, Bentham and Bureaucracy (Cambridge: Cambridge University Press, 1981). Even Locke has been portrayed as a startingly Weberian thinker: see J. Dunn, Locke, (Oxford: Oxford: University Press, 1984) See Rubinstein,op cit., pp. 80-6. 146 146
RkJQdWJsaXNoZXIy MjYyNDk=