“Weber’s sociology of law succeeds in explaining how modern law can have both rational and irrational elements.” Discuss.

When Pandora opened the box, disasters flew out of the box and escaped to human world. Pandora was scared and immediately shut the box, trapping hope within. Domination through rationalisation is equally disastrous. Therefore, Weber had left space for unpredictable, or irrational forces, to ensure that an element of instability was built into his idea of this developing rational machine so that some ‘hope’ can be preserved.

For Weber, the civilized modern found himself in a situation of rationality. The civilized, rational man was to be provided with the keys of knowledge, and as a consequence of knowing the structure of things, be free from the domination of ideology, of the falsehoods of tradition and custom. Freed from the bondage of false belief and hierarchies of feudal society, humanity would enter into a new age of enlightened reason. This freedom of culture could mean the potentiality for a more varied and exciting world than any previously existing in history.

Weber was however pessimistic. He saw the other side of the coin: The rational man would be committed to the task of visualising the true structure of the cosmos, but, as the price of using reason, he would be condemned to perform only the rational task and obey the outcome of formal calculation. As a consequence, the magic of life disappears into the irrational. Knowing the strength of social structure, man would not fight against the insurmountable. He would instead surrender to the destiny reason outlined for him.

Tomorrow excites us because it is unpredictable. A person who had truly mastered the art of divination, and, knowing that fate cannot be changed, would see no purpose and meaning to continue the voyage of life. The modern man would become trapped in a cage surrounded by iron bars of rationality. Man will be condemned to become a victim of calculation upon calculation, trapped by rational necessity.

To quote Weber: “For civilised man death has no meaning… because the individual life… placed into an infinite ‘progress’ according to its own immanent meaning should never come to an end; for there is always a further step ahead of one who stands in the march of progress. And no man who comes to die stand upon the peak which lies in infinity… Some peasant of the past, died ‘old and satiated with life’ because he stood in the organic cycle of life… his life… had given him what life had to offer… there remained no puzzles he might wish to solve; and therefore he could have had enough of life. Whereas civilised man, placed in the midst of the continuous enrichment of culture by ideas, knowledge and problems, may become ‘tired of life’ but not ’satiated with life’. He catches only the most minute part of what the life of the spirit beings forth ever anew, and what he seizes is always something provisional and not definitive, and therefore death for him is a meaningless occurence. And because death is meaningless, civilised life as such is meaningless; by its very ‘progressiveness’ it gives death the imprint of meaninglessness.”

The three procedures of rationalisation – the control of the world through calculation and the collection and recording of information; the systematisation of meaning and value into an overall consistent scheme; the methodological living of daily life according to rules – entailed the destruction and stifling of a great deal of the richness of human life.

Under substantive rationality there are certain ideological positions, things and values which are simply accepted as true and fit a picture of the cosmos so accepted, but the moderns argue that everything has to be subjected to the test of sceptical reason, and if something cannot survive the test, we reject those beliefs. The consequence of this is that substantive rationality will slowly disappear. Formal rationality will play a bigger role, where the nature of the conduct or morality of the ends to be achieved is downplayed, and all that matters is that the appropriate ‘logical train of reasoning’ has been complied with.

Weber’s model of three ‘ideal types’ of legitimate Herrschaft, which consists of traditional authority, charismatic authority and rational-legal authority, said that rational-legal authority depends on: a legal code accepted on grounds of expediency or rational values; a logically consistent system of abstract rules which are applied to particular cases; the typical person in authority occupies an ‘office’; the person obeyed authority does so only by virtue of his or her membership of the corporate group, and what is obeyed is the law; and obedience is given to officials not as individuals, but to the impersonal order they represent. The legality enables a special kind of domination: where it appears as if the dominated willed the conduct themselves.

Weber thought that everyday life would be dominated by the functional roles in the structures of the economic system. A person’s daily routines would be shaped by the freedom allowed by their role, and their hopes and dreams would be a reflection of their education and the specific cultural pressures to which their class was subjected. The only non-structural happiness Weber foresaw lay in the anti-rational spaces: the individual would find solace in personal relationships, romantic love and escapist music, experience of art, and cultivation of a limited private sphere. Weber warned that our individuality was becoming increasingly striped from us as we were disciplined into a society of mass conformity.

However, while the search for a full societal rationality gave us procedure and rational calculation, it was found upon a myth: a myth that the idea that everything was in principle knowable, while in ‘truth’ we could never know everything. If the metaphysics of life could not be understood, a whole set of desires and concerns of the individual agent could not be contained in this model. Weber presaged a tendency of his times: the Holocaust and the camps of Stalin – which reflected fear of the fate of individuality in a society dominated by calculation, mass consumption and mass standardisation. Weber left space for irrational element, and one such key element is charisma.

Charismatic authority is sharply opposed to rational. It knows no formal and regulated appointment or dismissal, no career, advancement or salary, no supervisory or appeals body, no local or purely technical jurisdiction, and no permanent institutions in the manner of bureaucratic agencies. Charisma is self-determined and sets its own limits. Its bearer seizes the task for which he is destined and demands that others obey and follow him by virtue of his mission. If those to whom he feels sent do not recognise him, his claim collapses; if they recognise him, he is their master as long as he ‘proves’ hiself. However, he does not derive his claims from the will of his followers, in the manner of an election; rather, it is their duty to recognise his charisma. Charismatic authority is naturally unstable. The rational edifice contains an underbelly of irrationality, with the ever-present potentiality of charisma to break the routines of the structure. charisma is a disruptive force leading to unascertainable consequences.

Weber is ambiguous concerning this irrational element – charisma. He had indeed explained how modern law can have both rational and irrational elements, but it is hard to say whether he had succeeded in explaining how modern law can have both rational and irrational elements.

Can it be said that: Weber, having witnessed the unification of Germany under Bismarck, the emergence of the modern German state founded in part at least upon the strength of Prussian hegemony, the phenomenal growth of industrialisation in Germany, the failed attempt to create a German empire and the culmination of great power rivalry in the catastrophe of the First World War that led Weber to conclude that modern law cannot consist of only rational element (however ideal it is), hence he left space for irrational element in his idea? I think, it is possible. Weber had failed to explain how modern law can consist of only rational element, therefore irrational element is included. I am of the opinion that he had picture modern law consisting of only rational element to work perfectly where modern law is like a slot-machine justice: pop in the facts and out comes the verdict as the legal calculator logically applies the relevant rules. However this machine did not work well in reality: Adolf Hitler pops in the Jews and out comes a subhuman material, which are ’socially dead beings, beings who were seen to be owed few if any moral obligations by Germans and who were conceived of as being thoroughly dishonourable, indeed incapable of bearing honour.’ (Goldhagen)

Weber had explained how modern law can have both rational and irrational elements, but I do not think he had succeeded. He had not explained how irrational elements like jury can counter-balance the negative aspects of the rational elements. Like the Chinese concept of yin and yang, rational element and irrational element play equally important role in modern law and have to be balanced against each other. Had Weber succeeded in explaining how modern law can have both elements, his view of modern man would, perhaps, not be so pessimistic.