David Sugarman ... [Rationalism] itself contained strong religious components, so it is not surprising that [it] is also heir to a whole complex of unacknowledged aspirations ... which cannot be assimilated to rationalistic notions of objectivity. The union of magic and science, of the irrational and rational, highlights the wealth of sources and inspirations that are appropriated to constitute “knowledge”. Knowledge and therefore the rational will always be an unstable, heterodox creature, yoking together “knowledge with experience and belief”. Its “objects of enquiry ... [will be] determined in part, by systems of thought inherited from earlier periods. Similarly, Foucault’s critique of the concept of rationality in Marx and Weber applies the Nietzschian-inspired insight that whilst power is a so-called rational discourse, in fact, it rests upon an irrational core. This is a very Weberian notion, though its centrality within the Weberian cannon has been frequently neglected. For at the core of Weber’s moral philosophy and his obsession with rationality is a paradox, namely, that every rational life is grounded upon a non-rational choice.'^3 Nowall this has implications for the ways we approach the so-called irrationalities and peculiarities of the English. For example, if we return to Weber’s model of formal rational law, we can see that it is intrinsically dependent upon a host of irrational distinctions, assumptions and attempted dosures: e.g., objectivity/subjectivity, law/politics, law/state, law/morality, form/substance, the emphasis on continuity and the disguises of change that are the hallmarks of legalism. Weber’s ideal-type is not only impossible and unreal, but it detaches the irrational underpinnings which sustain it and thereby obscures the irrational core of formal, rational law. In other words, rationality is a construct which is not empirically achievable. Another way we can take irrationality seriously is to explore its attributes, roles and functions.Howwould we go about doing this in the context of Weber on law and England? Like Rubenstein, we might start by acknowledging that the peculiar irrationality of England and her legal systemwas Januslike. It was both genuinely non-rational (in the Weberian sense); and it was also functionally and rationally successful. This recognises that irrationality may have a rationale; and that it may also constitute a structure for securing ’51 Editorial, “Science, Rationality and Religion”, History Workshop Journal, No. 9., 1980, pp. 1-3, pp. 2-3. 152 Ibid, and passim. See, also, Ginsberg, op. cit., passim. 155 See Brubaker, op. cit., pp. 4 and 61-90. See, also, Weber’s distinction between formal and substantive rationality. The law (and other social institutions) may be formally rational but substantively irrational; whilst the reverse is equally possible. i^'i One of my favourite works illuminating the functions of irrationality is, Leonore Davidoff’s The Best Circles: Society, Etiquette and Season, (London: GroomHelm, 1973). Davidoff shows how the apparently irrational social world of upper class hostesses was, in fact, highly functional. 252
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