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
146
codifications of the early modern age, which were all the product of the rationalism of
university-trained lawyers.'
34
According to Weber the particular rational quality of Roman law, which already existed under
the Roman Empire
35
, is to be found in the philosophical aspects of its legal training, however
superficial. In his view therefore, 'the significance of purely logical elements in legal thinking
began to increase'; this was also because of the absence of a binding sacred law and
because 'the mind was unencumbered by any theological or material ethical concerns which
might have pushed it in the direction of a purely speculative casuistry.'
36
During the period of the Roman Empire, abstract legal logic did not really affect the empirical
character of legal thought, but in the medieval reception process it 'had to be cleansed of all
remnants of national contextual association and to be elevated into the sphere of the
logically abstract'.
37
'A logically consistent and gapless complex of "norms" waiting to be
"applied" became the decisive conception for legal thought.'
38
Weber, implicitly criticizing marxist ideas, emphasizes that this abstraction process has
nothing to do with the needs of the bourgeoisie, which 'could be gratified quite as well, and
often better, by a formal, empirical case law'
39
- the kind of law the English lawyers
developed.
Weber proceeds to suggest that legal logic is an expression of 'an 'intrinsic intellectual need';
he connects this thought, however, with the sociological concept 'aristocracy':
'This logical systematization of the law has been the consequence of the intrinsic intellectual
needs of the legal theorists and their disciples, the doctors, i.e. of a typical aristocracy of
legal literati.'
In this explanation of the development of formal rational law an important characteristic of
Weber's rationalization theory becomes manifest: according to him, 'logic' emerges
automatically as soon as the mind is unencumbered with other matters; apparently it already
existed somewhere in the mind, waiting for its chance to come out. When he connects
'formal rationality' with 'intellectual aristocracy', however, he takes the opposite approach:
34
ES p. 853, WG p. 491/2.
35
See on its history Weber's treatment of 'the origins of religion', ES p. 399 ff., WG p. 245 ff., which I will discuss
in my chapter on the connections between charisma and formal rationality (Ch. 9,3).
36
ES p. 854, WG p. 492.
37
'and Roman law itself had to be absolutized as the very embodiment of right reason.' ES p. 854, WG p. 492.
38
Purely systematic legal categories were created and, since Roman law 'was transposed into entirely strange
fact situations, the task of "construing" the situation in a logically impeccable way became almost the exclusive
task.' ES p. 855, WG p. 492/3.
39
'The consequences of the purely logical construction often bear very irrational or even unforeseen relations to
the expectations of the commercial interests.' On ES p. 883 ff., WG p. 504 ff. Weber deals with the trends of
substantive rationalization which became manifest in his time; repeating the interest of capitalist enterprises in
'calculable' law: 'To those who had interests in the commodity market, the rationalization and systematization of
the law in general and, with certain reservations to be stated later, the increasing calculability of the functioning of
the legal process in particular, constituted one of the most important conditions for the existence of economic
enterprise intended to function with stability and, especially, of capitalistic enterprise, which cannot do without
legal security.' In 'The Change in the Function of Law in Modern Society ' (1964) Neumann has explained that
this is only true for early capitalism, which was based on competition between entrepreneurs of equal force;
monopoly capital according to him has an interest in a low degree of predictability of the law. See on the historical
role of 'formalism' below Ch. 9,2.
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