“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.

I just want to share something I’ve just read; something which

I find interesting and something that I can’t help but to agree:

“That man over there says women need to be helped into

carriages, and lifted over ditches, and to have the best places

everywhere. Nobody ever helps me into carriages, or over mud

puddles, or gives me the best place! And ain’t I a woman?

Look at me! Look at my arm! I have ploughed, and planted,

and gathered into barns, and no man could head me! And ain’t

I a woman? I could work as much and eat as much as a man –

when I could get it – and bear the lash as well! And ain’t I a

woman? I have born 13 children, and seen most of them sold

off to slavery, and when I cried out with my mother’s grief,

none but Jesus heard me! And ain’t I a woman?”

(Address by Sojourner Truth, 1851, quoted in Bartlett and

Kennedy, 1991:256)

I personally think males only give special treatments to those

females who act and look like the kind of females that males

have in mind.

You wear a skirt, you wear make up, you look hot; the males

want you in their bedroom; so they give you special treatment.

You wear slacks, you are stronger than the men; you turn them

off; they treat you like a man.

You act like a man, and the man will treat you like a man too,

because giving you special treatment will not provide them

with sexual pleasure. I think the men are very well-versed with

the felicific calculus.

Which is quite unfair to us ladies, in my opinion, because no

matter how we act like a male, there are still biological

differences between male and female. You don’t lose your

breasts and vagina and grow a penis overnight just because

you act like a male. Or, to be more direct like MacKinnon, the

f**kee does not turn into f**kor just because she behaves like

a f**kor. The biological differences remain.

On top of that, the harshness of life forces us to behave like a

man in order to survive.

But on the other hand, I can’t help but to think: what is our

nature if we were not educated to behave like a lady? Is it in

our nature to behave like a lady?

I still don’t have an answer for that question.

When we say something is natural, for example, natural apple juice, we perceive it as something good, something beneficial. Thus, natural law, being an original moral theory which explains the way the law operates as part of the broader moral life of human beings, should be something good, something beneficial too. It should not be seen as a “labyrinth of confusion” based on moral prejudices or unprovable speculation about human nature (Bentham); nor should it be seen as “like a harlot, natural law is at the disposal of everyone”. (Alf Ross)

In order to come up with a natural law theory that is good and beneficial, it is of utmost importance to first decide on the definition of “natural”. The word “natural” here refers to human’s nature. I will attempt to define it in a general, simple way. My definition will be something like the house in Aquinas’ analogy of the architect: my definition will only provide the framework or structure of the natural law “house”. It does not specify how wide the scope of natural law “door” be, and things like that.

For me, I disagree with what Thomas Hobbes said in Leviathan, Chapter XIII: that human’s life in their natural condition is “solitary, poor, nasty, brutish and short.” I see human’s nature from the perspective of what we need as an infant to keep us alive, and what are the common characteristics we have when we grew up, with these basic necessities consistently provided to us during the period when we grow up.

 Basically, we need air, food, water, shelter and clothes to survive. Assuming that we live in utopia where everyone grow up with these necessities provided to us. We will not be having a human capacity and readiness to hurt others, as opposed to what Hart termed as human vulnerability under his minimum content of morality. We will be bored of merely surviving. We will seek to improve our lives in every aspect that we can. I agree with Hart, who follows Protagoras and Hobbes by putting survival of human society as the necessary and basic aim. When human have the ability and means to survive, they start looking for something better, which is morality of aspiration, a term introduced by Fuller, which means morality of the “good life, of excellence, of the fullest realization of human powers”.

This “good life” should consist of Finnis’ seven basic values: knowledge, play, life, aesthetic  experience, sociability, practical reasonableness and religion (the value of seeking to understand man’s place in the universe).

Therefore, to survive and flourish are human’s goal, or in Aristotle’s term, telos. Anything human do, they are doing it to survive and flourish – not for short term, but for long term. It is human’s nature that we all desire to live long and prosper. This is the reason why a wise person will avoid doing something that will harm others: karma exists – what comes around goes around.

I agree with Cicero and Aquinas  (to a certain extent) that natural law is discoverable by reason. Some may argue that everyone has different way of reasoning. In my opinion, there is only one correct way of reasoning, and it is so simple that anyone who is willing to sit and think about it for some time would have surely thought of it. The correct, moral way of reasoning is: to think of a solution to whatever problem you are facing that will enable you to survive and live a good life without harming others. If we all reason like this, we will come to a conclusion that homosexual acts should not be labeled as “unnatural offence” in Malaysia since it is an activity that does not harm others; a woman should have right to abortion but this is subjected to which stage of pregnancy she is at and we need science to tell us when exactly does life begin; and Hitler’s reasoning that the Jews should be killed because they cause the German people to suffer financially is clearly wrong, because he is harming others.

I disagree with the view that natural law is derived by God, as claimed by Cicero and Aquinas. First of all, no one can be sure of the existence of God. Secondly, if natural law is derived by God, which God are we referring to? Is it Jesus? Is it Tuhan? Is it Buddha? Maybe at the end of the day, all these Gods are actually the same God, but right now, people all over the world are believing in all kind of different God, and we see some religious ones who would fight with others to defend their version of God. Wars are declared between Christians and Muslims in the name of religion. People who refuse to convert to Christian were killed during Christian Missionaries in South America. Human history has shown that the concept of God is subjective. Natural law theory and the meaning of natural cannot be subjective. It has to be objective. It needs to be something that is capable of being agreed upon.

I prefer Hugo Grotius’ view. He asserts that God himself is part of nature, and that even if God did not exist, natural law would have the same content. I agree that God should be taken out of the picture of natural law. After all, law is made by human for human. It is not made for God. We are governing ourselves in a way that best suits our nature – human’s nature, not God’s nature, or God’s perception of our nature.

Allow me to share a story to illustrate my point; a person passed by a temple saw Guanyin, God of Mercy, praying in the temple. He noticed that Guanyin was praying to a statue of Guanyin. Out of curiosity, this man asked Guanyin: “Why are you praying to yourself?” To which Guanyin replied: “Whatever problem I am facing, the only person who can help me is me myself. Therefore, I pray to myself.”

Isn’t that true in our context too? The belief that natural law comes from God stems from the fear to take up responsibilities for our actions. It is easier to say “I am doing this because of God” that to come up with a proper, logical, rational, morally correct explanation.  To quote Kelsen, the view that natural law comes from God satisfied a deeply-rooted need of the human mind, the need for justification. To justify the subjective value judgments, which emerge from the emotional element of his consciousness, man tries to present them as objective principles. Alf Ross had said something to similar effect: “By seeking justification for our actions in immutable principles outside ourselves, we try to relieve ourselves of the burden of responsibility.”

I think that with a slight modification on Gustav Radbruch’s two-stage test, it would be a reasonably beneficial version of natural law. Gustav Radbruch proposed that rules must satisfy the formal criteria of making law and the rules must be moral in that it must recognise individual freedom. I will start by modifying the moral filter first.

Moral should not be seen as recognizing individual freedom. My version of moral is: doing something that allows you to survive and live a good life without harming others. However, reality is not utopia. I agree with John Locke’s view that the state of nature of property was inadequately protected. This is self-evident: some countries have more resources than others due to geography. It is important for us to tolerate, compromise and respect each other. The state of limited resources means Radbruch’s view of what is moral does not have the capacity to achieve consensus in society. It goes against Dworkin’s conception of a morality that is objective. I think my version of moral, thought it could be criticized as being too general and too simple, is actually more capable of achieving consensus in society. (I think the only people who will disagree with my view on morality are the cannibals.)

I now move on to Radbruch’s requirements of formalities. For me, this formalities not only refer to the procedures of making law, but it should satisfy Fuller’s eight desideratas as well: law must be general, must be published, must not be retrospective, must be clear and intelligible, must be consistent, must be capable of achievement, must not be contradictory, must demonstrate a degree of congruence between the officials.

I believe that the word “natural” in natural law refers to both human’s nature and law’s natural characteristics. I think instead of saying Professor Hart and Fuller are shadow-boxing on different planes, we can say that most jurists who discussed natural law are shadow-boxing on different planes. By taking out the correct elements from all jurists, I’ve come to my natural law theory that, in my opinion, is the correct natural law. I see it as a simple theory capable of being understood by the majority of the public, a general theory capable of progressing with the progress of society, and, to use Cicero’s words: “right reason in agreement with Nature, of universal application, unchanging and everlasting”.