Anneke van Baalen, HIDDEN MASCULINITY, Max Weber's historical sociology of bureaucracy. 1994
Chapter 8 Connections between formal rationality and patriarchal-patrimonial domination
over and through men
145
'had to demand an unambiguous and clear legal system, that would be free of irrational administrative
arbitrariness as well as of irrational disturbance by concrete privileges, that would also offer firm guaranties of the
legally binding of contracts, and that, in consequence of all these features, would function in a calculable way.
'
29
After the burghers had created a rational procedural city law, the alliance of their interests
with the fiscal interests of the ruler furthered the formal rationalization of patrimonial law.
However, this alliance was only partial, as long as modern capitalism had not yet developed.
The alliance between ruler and bourgeois in the area of formal rationalization was possible
since, according to Weber, every bureaucratic administration, even a patrimonial one, is
characterized by 'utilitarian rationalism', which tends 'already by itself in the direction of the
private economic rationalism of the bourgeois strata'
30
. It was also in the interest of the ruler
as well in that of his officials - who had to keep their career chances in mind - to have one
law for the whole realm; both therefore advocated codification:
'While thus the bourgeois classes seek after "certainty" in the administration of justice, officialdom is generally
interested in "clarity" and "orderliness" of the law.'
31
Codifications, however, did not bring any important innovations; according to Weber they
could not 'match the significance of the revolution in legal thought and in the actual material
law which was brought about by the reception of Roman law.'
When the patrimonial rulers on the continent
32
had stimulated the reception of Roman law
they had done so because in this type of law they found support for their domination 'in the
sovereign position of the monarch as it appears in Justinian's codification.'
33
According to
Weber the other causes of their support of the reception of Roman law and of the pre-
eminence of the university-trained jurists are not fully known; in his view it is especially
difficult to find out how far economic interests were behind it. Yet he states in his essay on
the city that in the medieval cities, because of the interests of trade, the formal structures of
Roman law were already used for the rationalization of procedure; the continental
universities taught it. The patrimonial rulers therefore were able to appoint jurists with this
kind of training as their officials. Since law was increasingly practiced as a profession, the
interests of jurists on the continent furthered the reception process even more. Thus
'in the West the administration of justice acquired that juristically formal character which is
peculiar to it in contrast to most other systems of patrimonial administration of justice. The
respect for Roman law and Romanist law training also dominated all the monarchical
29
ES p. 847, WG p. 487. ibid.
30
ES p. 1108, WG p. 653.
31
ES p. 848, WG p. 488.
32
In England the powerful lawyer's guilds succeeded in retaining their monopoly on legal training by
apprenticeship; 'they successfully fought all moves toward rational law emanating especially from the
ecclesiastical courts and, for a time, also from the universities (...).' Their power position 'was conditioned by
political centralization'; in Germany, 'mainly for political reasons', such a group of honoratiores, 'which could have
raised national law to the level of an *art ('Kunst', ES: 'technology') based on apprenticeship', did not exist. ES p.
976/7, WG p. 565. See also ES p. 854, WG p. 493: 'Roman law triumphed wherever there did not exist a legal
profession with a nation-wide organization. With the exception of England, northern France, and Scandinavia, it
conquered all of Europe from Spain to Scotland and Russia.' Even England shows traces of its influence 'in the
systematic structure of English law, in many of its institutions, and in the very definitions of the sources of the
Common Law: judicial precedent and "legal principle", no matter what the difference of its inner structure.'
33
ES p. 852, WG p. 491.
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