Max Weber’s (1864–1920) most famous theme is that modernity is crucially constituted by a growing rationalization of the social world. Central to modernity is the rationality or use of reason and the desire to assert control over the process and forms of the world. Weber thought rationality would dominate in three ways:
a) The control of the world through calculation (note the growth of the technological attitude – the world becomes a problem to be solved with the correct technology)
b) The systematisation of meaning and value into an overall consistent scheme
c) The methodological living of daily life according to rules. Rationality means following a rule, or an abstract moral principle, rather than acting on wish, arbitrariness or emotionality. Rationality means building up a logically consistent pattern linking our thoughts and actions and following this pattern to its conclusion.
Weber thought we faced a predictable systematisation of belief, the elimination of logical inconsistencies, the movement away from particular, or local, forms of thinking, to the more abstract or general. This entailed the reduction of all individual instances of experience and of thought, whatever their diversity, to the status of general classes. Moreover, rationalization demanded that we remove our ways of thinking and acting of forms that could not be justified on the basis of their anticipated consequences. Rationalization is the systematisation of belief; it is the systematisation of action.
The commitment to reason as the mode of organising life takes on a meaning of itself – this Weber calls formal rationality. The tribal person who believed in demons and Gods, who followed customs and traditions, may have been consistent in his thoughts, actions and beliefs, in that if we imagine ourselves inside his beliefs then he is behaving in a rationally consistent fashion; this rationality Weber calls substantive. Under substantive rationality there are certain things – values – which are simply accepted as true and fit a picture of the cosmos (world) so accepted. But we ‘moderns’ argue that everything has to be subjected to the test of sceptical reason and if something cannot survive rational testing then we reject these beliefs while committing ourselves to reason itself. Rationality becomes something that dominates life. It does not matter what beliefs that we have substantially we must be rational.
The rise of modern rationality is closely linked to the development of capitalism as a mode of economic and social life and the rise of the nation state. One of the determining contexts for modern law is the growth in importance of the nation state. Like John Austin, Weber saw the state as a particular form of political association and was clear on the necessary linkage between the ability of the modern state to function and law. He was concerned with the maintenance of political authority. To maintain political authority, power based purely on physical force is unstable and ineffective. It is important to achieve domination, i.e. ‘the probability that a command with a given specific content will be obeyed by a given group of persons’. How does such obedience come about? Weber proposes a model of three ‘ideal types’ of authority:
a) Traditional authority: This rests on an established belief in the sanctity of immemorial traditions and the legitimacy of the status of those exercising authority under them. This form of authority had dominated in the history of the world.
b) Charismatic authority: This rests on devotion to the specific and exceptional sanctity, heroism or exemplary character of an individual person, and of the normative patters or order revealed or ordained by him. This form was unstable and unpredictable.
c) Rational legal authority – which rests upon the rational grounds and a belief in the ‘legality’ of patterns of normative rules and the right of those elevated to authority under such rules to issue commands. This form was coming to dominate modern western societies.
Weber considered the growth of rational legal authority as the predominant aspect in that process he called the rationalization of the modern world. Whereas for most of human existence the legitimacy of social systems had rested on traditional, magical or religious elements, modern society appeared to be founded on an authority which itself became rational; that is, it was understood as a calculated form of social structuring, enabling the functional integrity of a society or social organisation. This in turn, Weber thought, depends upon:
1) It is based on some legal rules containing rational ideas and created rationally.
2) Citizens accept these rational legal rules rationally because it will be beneficial for them.
3) The citizens obey the rational legal authority because of his or her membership of the corporate group (that is, the person in authority) rather than the person in authority.
4) Obedience is given to officials not as individuals but to the impersonal order they represent.
5) The person in authority occupying an ‘office’, which defines his or her responsibilities, is also subject to the impersonal regulation of the law.
6) The power of the state lies in the authority not in the hand of a person holding it.
Thus it is law, its precise demand and its administration, which encapsulates the element of calculation in rational legal authority. What provides the substance to law? Weber’s analysis cannot tell us that. While we move within the confines of legal-rational domination the rationality involved is a formal rationality: a commitment to reason which leaves the content uncertain, flexible according to the presuppositions which we bring to bear. It cannot answer the question ‘what will ensure the just or good society?’ If, however, we could agree a touchstone, a frame of reference, we could have a structure to make the system able to achieve the just or good society. Bentham and Austin thought that they had achieved the search for such a touchstone in utilitarianism; however, even with the work of J. S. Mill who refined utilitarianism with the additional principle of liberty, most have thought that only in the most general terms can the pursuit of happiness be cast in utilitarian terms
Austin to Hart, for example, we can partly see that Austin stands in a social context which is experiencing the process of rationalization which Weber detects and that close analysis of the work of Austin will demonstrate this, in particular a fuller understanding of what perceived himself to be doing in creating the science of jurisprudence. Moreover, we can see the distance from Austin Austin to H. L. A. Hart not in terms of Hart improving on ’s one-sided theory, i.e. in terms of legal theory correcting itself or working itself pure, but in terms of Hart inhabiting a social system where legal rational domination had been successfully achieved. Where as for Austin this was still something to be achieved. Austin