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Irving M. Zeitlin* MAX WEBER'S
SOCIOLOGY OF LAW
Max Weber's Rechtssoziologie ('Sociology of Law') is the only work in which

he explicitly devoted himself to an analysis of the law. It is a work,
however, that will tax the patience of all but the most erudite and
persevering reader. The essay is nearly unintelligible, as Kronman
observes, owing to the dense prose style, the heavy use of technical
vocabulary, and the encyclopaedic breadth of Weber's historical referen-
ces. The Rechtssoziologie strikes one, in Kronman's words, 'as a vast
hodge-podge of ideas and observations ... all thrown together in a random
fashion so that the reader moves from one topic and level of generality to
another without ever quite seeing the connection between them' (p. 2).
True, and it is almost certain that Weber never intended the essay on law
to be read without a prior knowledge of his other writings. Recognizing
that fact, Kronman places the Rechtssoziologie in the context of Weber's
total oeuvre and offers us an interpretation of Weber's sociology as a
whole.
The extraordinary significance of Weber's intellectual contribution
and its continuing relevance cannot be doubted. Weber is a central figure
in what has come to be called the classical tradition of sociological
thinking, for his ideas have stood the test of time. Social scientists refer to
his writings again and again; they employ his theoretical concepts; they
continue to investigate the questions he raised; and they emulate his high
standards of scholarship. As one might therefore expect, there are by now
numerous surveys of the riches to be found in the Weber legacy.
Kronman has given us one more interpretation, aimed primarily at
jurists, practising lawyers, and other students of the law. He fully
appreciates, I suspect, that he has broken no new ground in Weber
research and that students of social and political theory are quite familiar
with the ground he has covered. Nevertheless, it is with great care and
accuracy that Kronman has set forth the meaning of the Weber corpus,
beginning with the methodological foundations of Weber's sociology.
* Professor, Department of Sociology, University of Toronto

t A review of Max Weber by Anthony T. Kronman (Stanford: Stanford University
Press 1983), pp. vii + 214, $18.50
(1985), 35 UNIVERSITY OF TORONTO LAW JOURNAL 183

184 UNIVERSITY OF TORONTO LAW JOURNAL
Weber's method
Formed in the context of the so-called Methodenstreit, a fierce debate that

raged in academic circles at the time, Weber's method may be regarded as
a mediation between two extremes. On the one side were the advocates of
the Naturwissenschaften.Greatly impressed with the success of the physical
sciences, this school maintained that natural science methods would also
yield substantial advances in the study of human society. This standpoint
was represented by positivists of one sort or another, notably physiological
psychologists and behaviourists. The physiologists were methodological
reductionists. Basing themselves on the study of animals, they attempted
to explain socio-cultural conduct by alleging that its causes were rooted in
the human biological make-up. A present-day exponent of this view is
Konrad Lorenz, who proposes that the ultimate cause of war is an 'instinct
for aggression' in man. To this Weber would reply in something like the
following terms. There are no real instincts, or genetically determined,
fixed-action patterns in the human being. There is, of course, a genetic
contribution to all forms of human conduct; but it is not specific
behaviours that are determined genetically. A talent for music, for
instance, appears to be inherited; but the specific ability to play the violin
or piano is learned, not inherited. The same is true of 'aggression': we all
inherit the capacity (potential) for it; but aggression varies in form,
ranging from hostile glances and vituperation to brutal and destructive
violence. Aggression is rarely actualized in some and greatly actualized in
others, always owing to environmental circumstances. Hence, aggressive
and non-aggressive behaviours are mainly learned, and to understand
why one or another behaviour is actualized, we need to study social cir-
cumstances.
However, Weber no less vehemently rejected the positivist-reductionist

methods of the Behaviourists. Again it may be instructive to take a
present-day example, the fashionable theories of B.F. Skinner. Writing in
Beyond Freedom and Dignity, he proposes:
We can follow the path taken by physics and biology by turning directly to the
relation between behavior and the environment and neglecting supposed
mediating states of mind. Physics did not advance by looking more closely at the
jubilance of a falling body, or biology by looking at the nature of vital spirits, and
we do not need to try to discover what personalities, states of mind, feelings, traits
of character, plans, purposes, intentions, or the other prerequisites of autono-
mous man really are in order to get on with a scientific analysis of behavior.'
i Skinner Beyond Freeedom and Dignity (1971) 12-13
MAX WEBER'S SOCIOLOGY OF LAW 185
Skinner goes on to say that the stimulus-response model never solved the
basic problem of behaviour and was never very convincing 'because
something like an inner man had to be invented to convert a stimulus into
a response.' Skinner wishes to get rid of the 'inner man' and all that this
implies, an organism with a will and consciousness of its own. Thus he
writes that 'man's struggle for freedom is not due to a will to be free, but to
certain behavioral processes characteristic of the human organism, the
chief effect of which is the avoidance2 of or escape from so-called
"aversive" features of the environment.'
In reply, Weber would simply point out that Skinner has succeeded no
better than his predecessors in eliminating the 'inner man.' For even in
Skinner's scheme the human being has sufficient consciousness to
distinguish between positive and negative features of the environment;
sufficient will to desire to escape from the aversive features; and sufficient
autonomy to in fact escape. Hence, for Weber the doctrine of be-
haviourism is no less fallacious than the doctrine of instinctualism.
Even before Weber began his intellectual career, these positivistic
doctrines were opposed and repudiated by the spokesmen for the
Geisteswissenschaften (socio-cultural sciences). Weltanschauungsphilosophie,
historically informed studies of society, and phenomenology are examples
of this standpoint, with which the names Dilthey, Windelband, Rickert,
Husserl, and Scheler are associated. Stressing the uniqueness of the
human being in the animal kingdom, these thinkers proposed that
special methods are required in order to grasp human experience
authentically. No genuine understanding of the human condition is
possible, they insisted, without reference to those uniquely human,
emergent qualities we call mind, consciousness, will, and autonomy. Only
a concern with the motives, purposes, and meanings of human acts can
yield an adequate understanding of society, culture, and history. These
thinkers never denied the influence of either physical or social conditions.
They certainly recognized that social interaction produces a web of
human relations, a sociocultural system in which the life of the individual
down to its smallest details may be circumscribed and controlled. Yet, on
balance, it was Verstehen, not 'structural' considerations that constituted
their major concern.
Enter Max Weber, who fully agrees that the understanding (Verstehen)
of human conduct requires special methods. Valid sociological explana-
tions must be adequate at the level of meaning. This does not mean,
however, that sociology should abandon the quest for causal connections
between social phenomena. The human condition is such that no science
2 Ibid., at 39
truly comes to grips with it that ignores either meaning or causality.

Sociology is therefore a science that comes equally to grips with the
subjective meanings men attribute to their actions and with the objective
causes and consequences of those actions - bearing in mind that meaning
itself (motives, goals, purposes and the like) is a causal component of
action. Hence, Weber's well-known definition of action as social 'in so far
as its subjective meaning takes account of the behavior of others and is
thereby oriented in its course.' 3 Ideally, then, sociology provides explana-
tions adequate on two levels: on the level of meaning and on the level of
causality.
The term 'subjective,' as Weber employs it, distinguishes him at once
both from those who ignore subjective states in the study of man and from
those who believe in transcendental meanings and truths. For Weber,
'subjective' simply refers to the meaning the actors themselves attribute to
their acts, which meaning the sociologist should strive to understand.
Empathy, sympathy, and intuition are all essential 'for clarity and
verifiable accuracy of insight and comprehension [Evidenz].'4 Since action
ranges from the highly rational to the highly emotional, verifiable
understanding may be rationally analytical, emotionally empathetic, or
artistically appreciative. We often understand others by sympathetically
participating in their emotions. But understanding may also be appropri-
ately cold and analytical, as when one follows mathematical or logical
reasoning, or when one observes a scientist carrying out the steps of an
experiment, or when one listens to a prosecuting attorney making his case
against a defendant accused of cold-blooded murder. In all these
examples the meaning of an action is grasped when one learns what ends
the actors in question are pursuing and by what means. This Weber calls
zweckrationalesHandeln or purposeful action, and it constitutes one of the
four major 'ideal-types' (pure types) of action that he regards as
analytically useful.
When, either as participants or observers, we come to know men's goals
and purposes, we can assess the efficacy of the means they employ to
achieve those purposes. We may even be able to perceive the 'costs'
entailed in their pursuit of some ends rather than others. Rational-
purposive action is thus based on the premise that in specified circum-
stances humans tend to behave in predictable ways.
The rational model of action also enables us to understand non-rational
actions, conceived as departures from the pure type. Suppose we wish to
determine the most rational course of action in a specific situation. By
3 Weber Economy and Society (ed. Roth and Wittich, 1968) vol. 1, 4
4 Ibid., at 5
knowing an actor's aims and the actual means he is employing, and by

observing the consequences of his actions, we can: assess the degree to
which the actor has departed from the rational norms; determine what
the consequences might have been had the actor not departed from those
norms; and, finally, determine whether and in what measure the
non-rational actions have contributed to the outcome. In this way
rational-purposive action, as a pure type, becomes a valuable analytical
tool; it helps us provide explanations of human conduct that are both
meaningfully and causally adequate.
There is, however, another form of rationality which Weber calls
wertrationalesHandeln, or value-rational action. In studying such conduct
we must be particularly careful to prevent our own values from intruding,
for they could cause us to dismiss exceedingly zealous acts, whether
religious, political, or whatever, as irrational fanaticism. Actually, how-
ever, this is a form of rationality in which the actor is overwhelmingly
committed to some ultimate end or value, which he relentlessly pursues
without regard for the cost.
Value-rationality shades into what Weber calls affectual action, the third
pure type. It is here that empathy and sympathetic intuition are required
in order to grasp the varieties of emotional experience: anxiety, anger,
ambition, envy, jealousy, love, enthusiasm, pride, vengefulness, loyalty,
devotion, and so on.
Weber's fourth and final type he calls traditionalaction. Certain ways
and practices are so ingrained and habitual that they have become
unconscious, repetitive, quasi-automatic patterns. Traditionalism in this
sense includes the bulk of the taken-for-granted actions of everyday life.
For Weber, then, the social world is an intersubjective one. But, as he
emphasized again and again, 'intersubjectivity' should never be taken to
mean that the relationships among humans have no objective consequen-
ces. For it is undeniable that social relationships affect the quality of men's
being, their 'life-chances,' even whether they shall live or die. Moreover,
the intersubjective world often assumes an 'objective' quality so that men
act and follow patterns 'as if' the patterns were totally independent of
their will, 'as if' the patterns were inexorable, iron laws. It is a sociologist's
major responsibility to illuminate the circumstances in which men tend to
objectify the social world in this way.
Weber also stresses that his definition of social action must not be
construed to mean that sociologists may safely ignore patterns apparently
devoid of meaning. There are conditions and events, human and
non-human, that have no meaning as either ends or means of action, but
which nonetheless prompt, favour, or hinder action. Such conditions
have sociological relevance in so far as they are phenomena to which

human beings orient themselves. Because such conditions are data for the
social actors, they must also be taken into account by the sociologist.
Finally, a concern with the actors' subjective meanings should not be
construed to imply that actors are always conscious of their intentions and
purposes. Weber's typology of action explicitly allows for all degrees of
awareness within the conscious-unconscious continuum. Nor, certainly,
should a concern with meaning lead one to ignore the fact that men's
actions often entail consequences which they have not intended and of
which they are unaware. Indeed, it is in this area that the social scientist
may make his most important contribution; for he may be equipped to see
what the direct participants fail to see - the drama working itself out
beyond their gaze.
Values and science
Social scientists and scholars, Weber maintained, have a special responsi-

bility to pursue truth and knowledge as objectively as possible. By
comparing Weber with Socrates, Kronman brings out this aspect of
Weber's methodological position interestingly and well. For Socrates,
knowledge was the key to virtue and happiness; knowledge determined
one's values. In Socrates' view, writes Kronman, 'a man cannot see the
good and act badly; if he does act badly, this by itself conclusively
demonstrates that he has not understood the nature of goodness but still
suffers from a kind of ignorance or blindness in the mind's eye' (p. 19).
Weber, in contrast, denies
that a person's knowledge is ...a sufficient conditionfor his having a particular value
or set of values. According to Weber, a person chooses his values; whatever his
knowledge or beliefs may be, an additional and distinct act of choice is always
necessary to make the object of his choice - whether it be a limited principle of
conduct or entire way of life - a value for the person involved. On this view, every
value owes its existence to the exercise of a power fundamentally different from
cognition or understanding - the frightening power we all possess to affirm or
disaffirm even those things we understand most clearly. Weber uses its traditional
name to describe this power: he calls it the will. (Pp. 19-20)
In other words, unlike Socrates, Weber insists that knowledge or rational

analysis can give us clarity regarding the possible consequences of certain
choices, but cannot determine the choices themselves. Methodologically
this means that the scholar can, through an act of will, suspend his true
attitude towards the values of those whom he is studying. Not only that, he
can do so 'without losing his ability to understand what those values mean,
as ordering principles of conduct, to those who hold them. In short ...
contrary to what Socrates taught, knowing and evaluating are not the
same' (p. 22).
Thanks to Kronman's philosophical sophistication, he understands this
aspect of Weber's methodological position much better than many
sociologists, who are often philosophically naive. Students of the social
sciences continue to be taught that for Max Weber objectivity meant the
achievement of Wertfreiheit, a condition of being quite literally 'value-
free.' Objectivity, they are told, means freeing oneself of all values in the
course of a scientific or scholarly investigation.
What Weber actually maintained, however, is quite different, namely,
that objectivity is first and foremost an attitude which the scientist-scholar
ought to adopt. Objectivity is an ideal that one should self-consciously
strive for, an ideal enjoined by Wissenschaft als Beruf,5 science as a calling.
The scientist-scholar is obliged to gain self-awareness - a recognition
of the values dominating his observations and reflections. Only such a
recognition will enable him to overcome systematic distortions of reality.
By achieving a clear awareness of his own dominant values and interests,
the social scientist can deliberately view phenomena from standpoints
other than his own. He can consciously adopt a variety of perspectives
and in this sense 'free' himself from the limitations of a single point of
view. Wertfreiheit therefore requires Wertbeziehung - a recognition of the
relevance of one's values to the investigation of a given phenomenon.
As applied to the study of law this principle means that the sociologist
strives to disengage himself, in Kronman's words, 'from the value
commitments of those whose conduct he studies. The normative attitudes
they adopt are a matter of interest to him, but he investigates their causal
influence on conduct without entering into - in the sense of endorsing or
making his own - these attitudes themselves' (p. 150). The sociologist's
role is therefore quite different from that of other students of the law.
When 'a sociologist studies law and legal behaviour,' Kronman explains,
he does not assume an evaluative stance of the sort adopted either by the moralist
or scholar engaged in dogmatic jurisprudence. He neither judges the ethical
quality of the law nor seeks to expound its true meaning in order to evaluate the
correctness of the conduct of various actors in the legal system. The sociology of
law is not an evaluative discipline in any sense. Weber repeatedly describes the
5 This is the title of a lecture Weber delivered at Munich University in 1918. This lecture
and another one entitled 'Politics as a Vocation' ('Politik als Beruf') provide masterful
analyses of modern institutions. See From Max Weber: Essays in Sociology (trans. and ed.
Gerth and Mills, 1946).
sociology of law as an empirical science, meaning that it aims at, and has as its
characteristic product, judgments of fact (more specifically, causal propositions)
which unlike thejudgments of both the moralist and legal scholar, are not cast in
the language of praise and blame. (P. 1 1)
Weber and Marx
In several places in his study Kronman perceptively calls attention to

certain intellectual convergences between Weber and Marx; and the truth
is that a substantial portion of Weber's output can only be understood in
the light of his relationship with Marx. In the decades following the death
of Marx and Engels, critical questions were raised among both Marxists
and non-Marxists concerning the 'materialist conception of history.' A
veritable 'debate with Marx's ghost' ensued, in which intellectuals6
throughout the world critically examined Marx's theoretical legacy.
Among those who participated in the debate, Max Weber stands out as the
greatest of Marxism's critics. Furthermore, it is clear that several of
Weber's most fruitful ideas crystallized in the course of a dialogue with
Marxism. At times in this dialogue Weber challenges either Marx himself
or his followers; at other times he affirms the correctness of Marx's
economic emphasis in specified circumstances; and at still other times he
applies Marx's concepts, extending his analysis and rounding it out.
The title of one of Weber's chief works, Economy and Society, and his
concern with the Protestant ethic and with the religions of East and West
attest to his sustained interest in the issues Marx had raised. The origin
and nature of modern capitalism and the question of why it emerged first
in the West were lifelong intellectual preoccupations for Weber.
Ultimately, the answer to that question became a matter of grasping the
distinctive nature of occidental civilization and its fundamental contrasts
with the civilizations of the Orient. In his investigation of these complex
problems Weber employed a historical-sociological approach wholly
compatible with that of Marx. Doubtless this statement will come as a
surprise to some readers; it therefore requires substantiation.
Marx died in 1883. Soon afterwards 'Marxism' came to stand for a
theory in which economics and other 'material' factors explained the
structure of society and the course of history. That was the dominant view
among Marxists and critics of Marxism alike. Marx and Engels, it was
widely believed, had held that callous self-interest governs individuals,
classes, and nations, driving the world forward. The history of peoples
6 For an assessment of the impact of this debate on sociology, see Zeitlin Ideology and the
Development of Sociological Theory (2d ed., 1981).
throughout the centuries was to be explained by a changing, complex

interplay of strictly material causes. Economics was everything! At the
same time Marx's theory was transformed by his followers in another
respect. Marx's focus on the connections between economic development
and social-class formation was reduced to a form of technological
determinism. Social and historical changes were thus made to depend
directly on technical changes in the instruments of work. Changes in some
element of production - the discovery of some new raw material - were
said to determine the movement of history.
In time, however, both economic and technological determinism were
recognized as one-sided, misleading, and inadequate. Prominent Marx-
ists, often under the influence of outstanding non-Marxist thinkers such
as Max Weber, assailed these forms of 'vulgar Marxism,' exposing them as
basic distortions of the founder's ideas. The efforts of these critics were
largely successful, for they convincingly reconstituted the original com-
plexity of Marx's conception of history. Under their influence, Marx's
theoretical approach came to be regarded as 'open' and non-dogmatic.
Adherents of this view stressed the autonomy of the non-economic
spheres of society and underscored the creative role of consciousness and
will in the making of history. They cogently argued that Marx's scientific
aim was not to prove that economics everywhere and always determined
all other facets of society. His aim was rather to offer theoretical
guidelines for the exploration of the manifold and historically changing
connections between the economy and other social institutions. That was
also Weber's scientific aim. Far from being concerned with refuting Marx,
as is still widely believed, he looked upon Marx's analytical concepts as
heuristically valuable. In so far as any refutation of Marxism was intended
by Weber, it was of the dogmatic, vulgar, and mechanistic varieties
common in his day.
Let us therefore elaborate on the convergences between Weber and
Marx, a theme left undeveloped in Kronman's study, and still largely
neglected by most Weber scholars. The 'economic' for Weber, as for Marx,
referred to the 'material struggle for existence.' 7 How economics condi-
tioned other institutions and how they, in turn, affected economic
processes, was the life-long focus of Weber's intellectual work. As an
editor of the Archiv flir Sozialwissen-schaft und Sozialpolitik, an important
social science journal, Weber decided that 'the scientific investigation of
the general cultural significance of the social-economic structure of the
human community and its historical forms of organization' was to be the
journal's central aim. Weber explained why the journal adopted that
7 Weber The Methodology of the Social Sciences (1949) 65

editorial policy: 'The analysis of social and cultural phenomena with

special reference to their economic conditioning and ramifications was a
scientific principle of creative fruitfulness and, with careful application
and freedom from dogmatic restrictions, will remain such for a very long
time to come. The so-called "materialistic conception of history" as a
Weltanschauung or as a formula for the causal explanation of historical
reality is to be rejected most emphatically. The advancement of the
economic interpretationof history is one of the most important aims of our
journal.'8 For Weber, then, the reaction against the dogmatic and vulgar
types of Marxism had brought with it the danger of underestimating the
fecundity of Marx's method, conceived as a heuristic principle, not as a
key for unlocking all doors.
If, for example, one examines Weber's studies of the Protestant ethic
carefully, it becomes quite clear that he was by no stretch of the
imagination attempting to refute Marx. Throughout these studies Weber
acknowledges the fundamental importance of economic developments
and insists that one must 'take account of the economic conditions.'9 1n The
ProtestantEthic, however, he set himself a special task, namely, to examine
the economic relevance of a specific religious ethic which, in his
judgment, had not been given the consideration it deserved. Hence he is
deliberately examining 'only one side of the causal chain,' that is, the
impact of religious values on economic conduct. Again and again he
reminds the reader of his limited purpose: 'to clarify the part which
religious forces have played in forming the developing web of our
specifically worldly modern culture, in the complex interaction of
innumerable different historical factors.'10 Weber is fighting on two
fronts. He wishes, on the one hand, to disprove the idea held by some
Marxists that the Reformation was a historically necessary consequence of
economic developments. But, on the other hand, he has
no intention whatever of maintaining such a foolish and doctrinaire thesis as that
the spirit of capitalism (in the provisional sense of the term explained above) could
only have arisen as the result of certain effects of the Reformation, or even that
capitalism as an economic system is a creation of the Reformation. In itself, the
fact that certain important forms of capitalistic business organization are known
to be considerably older than the Reformation is a sufficient refutation of such a
claim. On the contrary, we only wish to ascertain whether and to what extent
religious forces have taken part in the qualitative formation and the quantitative
expansion of that spirit over the world."
8 Ibid., at 68
9 The ProtestantEthic and the Spirit of Capitalism 0958) 25
1o Ibid., at go
ii Ibid.,at 9 i
It was Weber's intention to assess the contribution of the Protestant ethic

to the shape of the modern economic system; and to shed light on the
process by which 'ideas become effective forces in history.' Thus Weber is
proposing to 'round out' Marx's method by systematically exploring the
role of religion. He is neither denying nor belittling the importance of
economic processes; nor, certainly, is he arguing that Protestantism
caused capitalism. And in the very last paragraph of his study he reminds
his reader once again that he has been tracing influences in one direction,
and that he has done only half ajob since it is equally
necessary to investigate how Protestant asceticism was in turn influenced in its
development and its character by the totality of social conditions, especially
economic. The modern man is in general, even with the best will, unable to give
religious ideas a significance for culture and national character which they
deserve. But it is, of course, not my aim to substitute for a one-sided materialistic
an equally one-sided spiritualistic causal interpretation of culture and of history.
Each is equally possible, but each, if it does not serve as the preparation, but as the
conclusion of an 12
investigation, accomplishes equally little in the interest of
historical truth.
It is therefore quite clear that those commentators who describe The
ProtestantEthic as a refutation of Marxism simply have not read the essay
with sufficient care. Furthermore, in so far as such commentators believe
that Weber's historical analyses stressed religious and other spiritual
'factors' at the expense of economic conditions, they are quite wrong. No
one had to persuade Max Weber, who was, among other things, an
outstanding economic historian, of the importance of economics. The
fact of the matter is that economic conditions remained central to his
analyses of both capitalist and pre-capitalist formations.
In his studies of ancient civilizations, for example, Weber concludes
that 'the disintegration of the Roman Empire was the inevitable political
consequence of a basic economic development: the gradual disappearance of
commerce and the expansion of a barter economy. Essentially this
disintegration simply meant that the monetized administrative system
and political superstructure of the empire disappeared, for they were no
longer adapted to the infrastructure of the natural economy.' 13 For
Weber, then, this fundamental transformation was a consequence of
changing economic conditions. As the supply of slaves dried up with the
pacification of the empire, the 'natural economy' imposed itself through-
out. The commercialized cities disappeared, and 'the intellectual life of
12 Ibid., at 183
13 Weber The Agrarian Sociology of Ancient Civilizations (trans. Frank, 1976) 408 (italics
added)
Western Europe sank into a long darkness. ' 14 With this transformation, a
part of the formerly free or semi-free coloni were subjected to serfdom
and the urban patricians of old were replaced by rural, barbarized feudal
lords. Weber's analysis thus leaves no doubt of the salience he accorded to
economic circumstances wherever this seemed warranted.
In his analyses of ancient society Weber also employs the concepts of
class, class interest, and class conflict. This may be illustrated with his
discussion of ancient Israel and Greece. The Ten Commandments and
the Mosaic legislation as a whole, Weber suggested, were designed for the
protection of the mass of free persons against the consequences of social
inequities in wealth and power. Some of the more important laws im-
posed limits on the enslavement of Hebrews for debt; extended protec-
tion to marriages between free persons and debt slaves; protected the
Hebrew woman, bought as a wife, from the treatment accorded pur-
chased slaves in general; protected slaves against physical injury by their
masters; and protected persons from injury by cattle. In a large measure,
therefore, the Mosaic legislation was designed to protect the poor and the
weak against the wealthy and powerful.
There were, however, other provisions prohibiting partiality towards
either the rich or the poor. Such provisions, Weber convincingly suggests,
reflect the legislators' aim 'to end class conflict through impartial
arbitration, which was indeed the aim of the great legislators of antiquity.
A significant feature is the exhortation not to oppress metics, reflecting
the results of the commercial traffic which went by and in part through
the homeland of the Hebrews. ' 15 Hebrew law shared this basic principle 16
with many other law codes of the West, designed to 'settle class conflicts.'
The most original and significant of the Mosaic provisions, Weber
believed, was the injunction to keep the Sabbath rest - a law extended to
labourers, slaves, and cattle. What Weber has to say on this subject
illustrates how he distinguished himself from some of his Marxist
contemporaries who accorded religion and other elements of the
ideological 'superstructure' no real autonomy whatsoever. 'The Sabbath
law,' writes Weber, 'cannot, of course, be explained on purely "socio-
political" grounds, for it reflects most clearly the great power of religious
motivations. Nevertheless, this commandment clearly benefitted the debt
slaves as well as other classes.' 17 The methodological principle here
exemplified is this: one must give due consideration in all historical
sociological analyses not only to economic and economically conditioned
14 Ibid., 410
15 Ibid., 137
16 Ibid., 138
17 Ibid., 136
phenomena, but to economically relevant phenomena as well. '8 Religion is

an example of an institution that may have economic relevance in some
historical circumstances. Hence Weber concludes that the 'Torah [Penta-
teuch] was in part the result of purely religious forces, but mainly was
meant to prevent the enslavement of the peasantry by the wealthy
families, which had visibly occurred in the coastal towns; and to maintain
the ancient freedom based on equality."'
A similar approach is taken to the changing social structure of ancient
Greece. The growth of sea trade in the coastal cities led to a crisis owing to
two conditions: the accumulation of wealth in money and land; and the
increasing indebtedness of the peasantry. The money economy 'led to a
differentiation in income and the creation of new classes: rich parvenus,
poor free men without property, and impoverished aristocrats. From this
sprang bitter class conflicts within the polis.'20 The new commercial class
made its money from the export and shipping businesses and therefore
had little in common with the traditional land-owning groups. The
parvenus often formed political alliances with the free-born men who,
having lost their land, were reduced to debt servitude. At times together
and at other times alone, these groups formed social movements 'aiming
to overthrow the aristocratic regimes.'21 'Indeed,' writes Weber, 'all
classical Greek history was characterized by the social contrasts between
aristocracy and commons, and this itself was inextricably connected with 22
the economic opposition which separated oligarchs from democrats.'
In the Communist Manifesto and in other writings Marx and Engels
described all pre-capitalist modes of production as 'conservative,' in
contrast to the capitalist mode which, wherever it penetrated, was
revolutionary in its consequences. Under feudalism, for instance, the lord
was a professional warrior, not a farmer; he had nothing to do with
agriculture. He received dues in kind from his dependants and, in return,
guaranteed them protection. The productive forces were stationary, and
the resulting mode of production was 'conservative.' Weber agrees,
quoting Marx approvingly in this regard:
The dues of the peasant originally served only to satisfy the requirements of the
lord and were readily fixed by tradition. The peasants had no interest in making
the soil yield more than was necessary for their own maintenance and for covering
their obligatory payments, and the lord had as little interest in increasing the
payments, as long as he did not produce for the market. The mode of life of the
18 Weber, supra note 7, 65-112
19 Weber, supra note 13, 138
20 Ibid., 172
21 Ibid., 173
22 Ibid., 183
lord was but little different from that of the peasant. Thus 'the walls of his 23stomach
set the limits of his exploitation of the peasant,' as Karl Marx observed.
The traditionally fixed dues came to an end, however, with the
emergence of the market economy. Now kings, princes, and great lords
all wanted to gain from commerce. The 'natural economy' of the manor
evinced a strong tendency to change in a capitalistic direction. Both the
manorial lord and the peasant acquired a material interest in the
emerging exchange economy, an interest growing all the more intense as
the market for agricultural products and the money economy expanded.
Yet the lord's increasing exploitation of the peasant was insufficient to
bring about the dissolution of the manor. For that to occur, other interests
from without had to come into play, namely, 'the commercial interests of
the newly established bourgeoisie of the towns, who promoted the
weakening or dissolution of the manor because it limited their own
market opportunities. ' 24 Weber thus agrees with Marx that the town and
the manor 'were antagonistic' (Weber's words), and that the feudal
relations of production tended to 'fetter' (Marx's term) or 'set limits'
(Weber's phrase) on capitalist development. 'Through the mere fact,'
writes Weber,
of the compulsory services and payments of the tenants, the manorial system set
limits to the purchasing power of the rural population because it prevented the
peasants from devoting their entire labor power to production for the market and
from developing their purchasing power. Thus the interests of the bourgeoisie of
the towns were opposed to those of the landed proprietors. In addition, there was
the interest on the part of the developing capitalism in the creation of a free labor
market, to which obstacles were opposed by the manorial system through the
attachment of the peasants to the soil. The first capitalistic industries were thrown
back upon the exploitation of rural labor power in order to circumvent the guilds.
The desire of the new capitalists to acquire land gave them a further interest
antagonistic to the manorial system; the capitalistic classes wished to invest their
newly acquired wealth in land in order to rise into the socially privileged landed
class, and thus required a liberation of the land from feudal ties. Finally, the fiscal
interest of the state also took a hand, counting upon the dissolution of the manor
25
to increase the taxpaying capacity of the farming country.
It is therefore undeniable that Weber's analysis of declining feudalism
converged strikingly with Marx's. No less remarkable are the conceptual
and substantive parallels with Marx that one finds throughout Weber's
23 Weber GeneralEconomic History (trans. Knight, 1961) 67

24 Ibid., 82
25 Ibid., 82-3
discussion of pre-capitalist social formations. Even Marx's conception of

the 'Asiatic mode of production' has an analogue in Weber. In his study of
the religious and social institutions of India prior to British rule, Weber
pauses to make this observation: 'Karl Marx has characterized the
peculiar position of the artisan of the Indian village - his dependence
upon fixed payments in kind instead of production for the market - as the
reason for the specific "stability" of the Asiatic people. In this Marx was
correct.' 26 Weber thus accepts Marx's characterization of the Asiatic
economy but expands on Marx's analysis by investigating religious
institutions as well as the economic and political. Like Marx, Weber sees
the roots of the Asiatic mode of production in the need to construct
complex, artificial irrigation systems. Originating in the ancient Near
East, riverine irrigation networks became the foundation of the entire
27
economy in Mesopotamia and Egypt, the oldest centres of civilization.
'Every new settlement,' writes Weber, 'demanded construction of a canal,
so that the land was essentially a man-made product. Now canal
construction is necessarily a large-scale operation, demanding some sort
of collective social organization ... Here then is the fundamental economic
cause for the overwhelmingly dominant position of the monarchy in
Mesopotamia (and also in Egypt).'28
That canals and irrigation networks had existed in the earliest historical
centres, Sumer and Akkad, is evident from inscriptions. Building and
maintaining the canals and dikes required the labour services of large
numbers of people who toiled 'under the direction of royal overseers, so
that very soon the ancient city kingdom began to develop into a
bureaucracy.' The aggressive wars of Assyria and Babylonia were fought
primarily with one aim in view: 'to conquer subjects who would dig a new
canal for a new city.'29
In economic terms Weber likens the Mesopotamian monarchy to an
oikos, a huge household. The royal oikos derived its revenue from
bondsmen and serfs on the one hand and from royal subjects who
rendered labour services and paid taxes in kind. Weber writes: 'Like the
pharaohs the kings of Sumer and Akkad regulated the labor services of
their subjects, provided them with food and drink, and then saw to it that
they received payment in kind. There were all sorts of royal warehouses -
for wagons, grain, spice, treasure - and all sorts of royal workshops ...
Above all, everything needed for official building projects was produced
26 Weber The Religion ofIndia (trans. Gerth and Martindale, 1958) 111
27 Weber AgrarianSociology, supra note 13, 38
28 Ibid., 84
29 Ibid.
in the royal oikos.' 30 Sumerian kings also engaged in commerce and

monopolized trade at the river mouths.
Ancient Egyptian institutions were likewise shaped by 'the necessity,
arising from geography and climate, to develop a somewhat sophisticated
bureaucratic administration and to mobilize the population for large-
scale work on the irrigation system ... [T]he individual was above all a
servant of the state. Thus when the pharaohs boast that they have
established order and have visited every city of their realms, it is clear
from the context that they are thinking of the irrigation system and its
demands.' 3 1 The ancient Egyptian economy, also an enormous royal oikos,
mainly occupied itself with the construction of systems for distributing,
channelling, draining, and raising the waters of the Nile. The entire
society was therefore shaped by the basic requirement of regulating the
great river, to ensure the provision of society's economic needs.
The resulting political-administrative structure was a highly centralized
bureaucratic state, or what Weber calls a 'liturgy-state.' 'In such states,'
writes Weber, 'every individual is bound to the function assigned him
within the social system, and therefore every individual is in principle
unfree.' 32 Every individual was an instrument of pharaonic power; the
individual and his possessions were no more than entries in the royal
cadastre. The typical peasant of the time is depicted in inscriptions as
paying little rent for his land and always being ready to evade taxes: '[T]he
officials arrived unexpectedly, the women began to cry and soon a general
flight and hunt began; those liable for taxes were hunted down, beaten,
and tortured into paying what was demanded by the officials, who were
themselves held responsible for quotas based on the official cadastre. This
was the guise in which the state appeared to the peasants of the Near
East ... The profound feeling of alienation from politics found among 33
Near Eastern peoples had its origin in this repressive relationship.'
Thus Weber described the earliest forms of 'Oriental despotism,' based
on forced labour and liturgies exacted from the population by a highly
repressive, centralized bureaucracy. In the Near East, as elsewhere, the
monarchy originally evolved with the expanding wealth and power of the
military chieftain and his retinue. That the Egyptian monarch fed,
equipped, and led the army and became the absolute landlord and
all-powerful ruler was causally bound up with the administrative require-
ments of river regulation and irrigation. The pharaoh's 'retinue' was the
entire army and bureaucracy. Little wonder that he was divinized.
30 Ibid., 85
31 Ibid., io6
32 Ibid., iog
33 Ibid., 131
In the East, then, political power belonged to no one but the prince, in
Machiavelli's sense; for he had successfully 'separated' the administrative
officials from control over the key resources with which they worked. This
Weber contrasted with a system in which the prince granted land to the
members of his retinue, who paid their own costs and thus enjoyed
considerable autonomy. 'According to the dominance of one or the other
of the systems,' Weber observed, 'the political and social constitution of
the state would be entirely different. Economic considerations largely
determine which form would win out. The East and the West show in this
respect the usual contrast. For the oriental economy - China, Asia Minor,
Egypt -irrigation husbandry became dominant, while in the West, where 34
settlements resulted from the clearing of lands, forestry sets the type.'
To understand the fundamental structural differences between East
and West, one must pay close attention to economic processes and how
they conditioned other developments. For Weber, the differences be-
tween East and West extended to all the major institutions of the
respective civilizations. The Asian 'city,' for instance, differed markedly
from the occidental one, which early acquired political autonomy and
became a centre in which capitalist institutions could germinate. Unlike
the polis of antiquity and the urban commune of the Middle Ages, the
Asian 'city' had neither political privileges nor military power of its own,
no self-equipped military group. The occidental city became sufficiently
strong to repel an army of knights; it was independent of any centralized
bureaucracy. In contrast, 'everywhere outside the West,' writes Weber,
'the development of the city was prevented by the fact that the army of the
Prince is older than the city.' And in an apparent dialogue with the
Marxists, Weber observes:
Whether the military organization is based on the principle of self-equipment or
on that of equipment by a military overlord who furnishes horses, arms and
provisions, is a distinction quite as fundamental for social history as is the question
whether the means of economic production are the property of the worker or of a
capitalistic entrepreneur ... In the west the army equipped by the war lord, and the
separation of the soldier from the paraphernalia of war, in a way analogous to the
separation of the worker from the means of production, is a product of the
modern era, while in Asia it stands at the beginning of the historical de-
35
velopment.
The distinctiveness of the East rests on the fact that in Egypt, Western
Asia, China, and India 'irrigation was crucial.' 'The water question,'
34 Weber, supra note 23, 57-8 (italics added)

35 Ibid., 237
Weber continues, 'conditioned the existence of the bureaucracy, the

compulsory service of the dependent classes, and the dependence of the
subject classes upon the functioning of the bureaucracy of the king. That
the king also expressed his power in the form of a military monopoly is the
basis of the distinction between the military organization of Asia and that
of the West.' 3 6 Thus Weber fully acknowledges that the requirements of
water regulation and complex irrigation projects are crucial for an
understanding of Asian social structure, just as he acknowledges that
Marx was right in tracing the 'stationary' character of Indian society to the
peculiar position of the artisan in the Indian village. It is therefore
undeniable that Weber's analyses of the East largely coincide with Marx's
conception of the Asiatic mode of production.
What we find in Weber's analyses of Asian society is neither a belittling
of economic conditions nor an attempt to refute Marx. On the contrary,
what we find is a recognition of the centrality of economic conditions.
Weber is nonetheless engaged in 'rounding out' Marx's analysis by giving
systematic attention to other salient conditions, notably the political,
military, and religious.
In Marx's and Engels' quite brief discussions of Asiatic society, they had
little to say about Asian religions. But Weber wishes to show that although
Marx was right in singling out the peculiarity of the Indian village as the
basis of the remarkable stability of oriental despotism, there were
additional factors at work. In India there existed the conspicuous caste
order which also must be 'viewed as the bearer of stability.' 3 7 In both China
and India certain religious norms prevailed that positively precluded the
spontaneous emergence of a western type of capitalism. In this case as in
all others, Weber is certainly not arguing some sort of idealistic de-
termination of history. Chinese religious culture, he stresses, and
particularly its 'otherworldliness,' was 'deeply codetermined by political
and economic destinies. Yet, in view of their autonomous laws, one can
hardly fail to ascribe to these [religious] attitudes effects strongly
counteractive to capitalist development.' 38 In both China and India
Weber discerned an anti-rational, other-worldly spirit that permeated the
entire culture and thus constituted a major obstacle to the development
of industrial capitalism.
Again it is important to emphasize that by no stretch of the imagination
is Weber attempting to substitute a religious for an economic explanation.
In these essays on the religions of the Far East, full attention is accorded to
socio-economic institutions and to social-class relations. This, for exam-
36 Ibid.
38 Weber The Religion of China (trans. and ed. Gerth, 1951) 249
pie, is the way Weber explains why neither the Chinese nor the Indian
merchants ever became a bourgeoisie in the western sense. They had no
independent military organizations and therefore could be repressed
whenever a prince found it expedient to do so. The Asian 'town' enjoyed
no true self-government. Students of economic development in the West
had stressed two factors in particular as having contributed to the
establishment of capitalism. Weber observes, however, that in China
similar factors were evident. The great increase in the stock of precious
metals led to the increased use of money, particularly in state finance. Yet
instead of shattering traditionalism, it strengthened it. Likewise, the
enormous growth in population 'was neither stimulated by nor did it
stimulate, capitalist
39
development. Rather, it was associated with a station-
ary economy.'
The upshot, for Weber, is that when all the elements of Asian society
are duly considered, one must recognize that its distinctive religious
culture contributed significantly to the maintenance of a stationary
economy. Of course, one could not quantify or assign comparative
weightings to the various elements; but in no sense is Weber attributing
priority to religion. He is simply making a strong case for the view that
religion played a significant role in stabilizing the socio-economic
structure.
We see, then, that in all cases Weber's method entails due consideration
of both economic and non-economic influences. He subscribes to no
single-factor theory and he certainly was no 'idealist' in the sense that this
term has been applied to, say, Hegel. Kronman recognizes this fact as
applied to the Rechtssoziologie, but he expresses disappointment at what he
calls Weber's 'agnostic' conclusion. 'Throughout the Rechtssoziologie'
writes Kronman, 'Weber seems determined to avoid a one-sided view of
the causal relationship between the law and economic action. Every strong
claim that he makes regarding the influence of one on the other is
qualified, somewhere in the text, by an assertion that the influence has
only been partial or indirect and has in any case been exerted in the
opposite direction as well. To some extent this agnostic conclusion is
unilluminating' (p. 129). Here I would not only have to disagree but
suggest that Kronman may be missing the whole point of Weber's
method. Weber's central aim, as we have seen, was to overcome the
inadequacy of both one-sided 'materialistic' and one-sided 'idealistic'
explanations.
Hence it is neither an a priori commitment to agnosticism nor an a
priori commitment to eclecticism on Weber's part that accounts for his
39 Ibid. 12 (italics added)

insistence on the reciprocal influence of law and economics. Weber's

conclusions, here as elsewhere, are the result of careful empirical-
historical research, reflecting the complexity of social reality more
faithfully than any single factor theory.
Law and capitalism: Weber's complementarity with Marx
In Kronman's discussion of law and capitalism he correctly emphasizes

that for Weber 'free labor' was a precondition 'for maximizing the formal
rationality of economic action' (p. 137). In this respect, too, Weber took a
cue from Marx.
A major presupposition of industrial capitalism, Weber agreed, is 'free'
labour in Marx's sense. Persons have to be free from bonds of servitude
such as chattel slavery and serfdom, and 'free' in the sense of separated
from their means of production. A large mass of free labourers had first
emerged in the West, in England, the classical land of peasant evictions.
The Enclosure movement created a great mass of vagabonds, so that 'as
early as the I 6th century there was such an army of unemployment that
England had to deal with the problem of poor relief.' 40 This huge labour
reservoir made the factory system possible. In the earliest phases of that
system, the concentration of workers in shops was compulsory. The poor,
the homeless, and the criminals, writes Weber,
were pressed into factories, and in the mines of Newcastle the laborers wore iron
collars down into the 18th century. But in the i 8th century itself the labor contract
everywhere took the place of unfree work. It meant a saving in capital, since the
capital requirement for purchasing the slaves disappeared; also a shifting of the
capital risk onto the workers, since his death had previously meant a capital loss
for the master. Again, it removed responsibility for the reproduction of the
working class, whereas slave-manned industry was wrecked on the question of
family life and reproduction of the slaves. It [the labour contract] made possible
the rational division of labor on the basis of technical efficiency alone, and ...
freedom of contract first made concentration of labor in the workshop the general
rule. Finally, it created the possibility of exact calculation, which again could only
41
be carried out in connection with a combination of workshop and free worker.
Like Marx, then, Weber stresses free labour as a precondition of the
modern economic system. 'Persons must be present,' he writes,
who are not only legally in the position, but are also economically compelled, to sell
their labor on the market without restriction ... [T]he development of capitalism is

41 Ibid., 137
impossible if such a propertyless stratum is absent, a class compelled to sell its labor
services to live; and it is likewise impossible if only unfree labor is at hand. Rational
capitalistic calculation is possible only on the basis of free labor; only where ...
workers who in the formal sense voluntarily but actually under the compulsion of
the whip of hunger, offer themselves, the42costs of products may be unambiguous-
ly determined by agreement in advance.
Industrial capitalism, as it emerged in eighteenth-century England,
entailed 'the concentration of all the means of production in the hands of the
entrepreneur.' 43 Note the italicized phrase, the Marxian expression that
Weber employs. For Weber, as for Marx, industrial capitalism rested on
the 'appropriation of all physical means of production - land, apparatus,
machinery, tools, etc.,44as disposable property of autonomous private
industrial enterprises.'
Weber thus accepts the basic Marxian presuppositions of the capitalist
mode of production. Now, however, as in the case of the Asiatic mode,
Weber proceeds to supplement Marx's analysis by proposing an 'elective
affinity' between the ethos of ascetic Protestantism and the values (spirit)
of modern, rational capitalism. Parenthetically, it is worth noting that
both the 'rational' dimension of capitalism in Weber's sense and the
'affinity' of capitalism with Protestantism were anticipated by Marx. The
'boundless greed after riches,' wrote Marx, 'this passionate chase after
exchange-value, is common to the capitalist and the miser; but while the
miser is merely a capitalist gone mad, the capitalist is a rationalmiser. The
never-ending augmentation of exchange-value, which the miser strives
after, by seeking to save his money from circulation, is attained by the
more acute capitalist, by constantly throwing it afresh into circulation.' 4 5
And in another context Marx writes: '[F]or a society based upon the
production of commodities, in which the producers in general enter into
social relations with one another by treating their products as commodi-
ties and values, whereby they reduce their individual private labour to the
standard of homogeneous human labour - for such a society, Christianity
with its cultus of abstract man, more especially in its bourgeois develop-
ments, Protestantism, Deism, etc., is the most fitting form of religion.'46
From one of his last pronouncements on the subject of the relation of
Protestantism to capitalism, it becomes crystal clear that no so-called
religious determinism was intended by Weber. That the economic and
42 Ibid., 2o8-9
43 Ibid., 227 (italics added)
44 Ibid., 2o8
45 Marx Capital vol. 1 (1954) 153 (italics added)
46 Ibid., 79
political interests of the Puritans had been salient could not be doubted.
Weber reviews the situation in seventeenth-century England in which at
first mercantilism prevailed, and the monarchy granted fiscal and
colonial privileges and monopolies. This type of capitalism Weber
describes as non-rational; it was not the system out of which modern
industrial capitalism developed. Rather the modern form of capitalism
was pioneered by 'a stratum of entrepreneurs which had developed in
independence of the political administration [and] secured the systematic
support of Parliament in the I 8th century, after the collapse of the fiscal
monopoly policy of the Stuarts.' The capitalism of these entrepreneurs,
Weber continues, was oriented 'to market opportunities which were
developed from within by business interests themselves on the basis of
saleable services.' The two types of capitalism collided here for the last
time:
The point of collision of the two types was the Bank of England. The bank was
founded by Paterson, a Scotchman, a capitalist adventurer of the type called forth
by the Stuarts' policy of granting monopolies. But Puritan businessmen also
belonged to the bank ... [W]e can trace step by step the process by which the
influence of Paterson and his kind lost ground in favor of the rationalistic type of
bank members who were all directly or indirectly of Puritan origin or influenced
by Puritanism ...
... In England it [mercantilism] finally disappeared when free trade was
established, an achievement of the Puritan dissenters Cobden and Bright and
their league with the industrial
47
interests, which were now in a position to dispense
with mercantilist support.
So in this case, too, it is undeniable that Weber took into account economic
and political interests.
It is essential, in this connection, to understand what Weber is not
asserting. Neither here nor anywhere else in his writings does Weber set
forth a general theory of the relation of 'religion' to 'economics.' Nor does
he argue that the Puritan ethic is a permanent prerequisite or element of
capitalism. On the contrary, just as his treatment of the influence of
eastern religion applied only to a specific epoch, so did his assessment of
the impact of ascetic Protestantism. For once capitalism established itself,
the religious roots of that system were dead. The Puritan concept of the
'calling' became a 'caput mortuum.'48
No less evident is the fact that Weber developed his own view of
socio-economic classes in a critical dialogue with Marx and the Marxists.

48 Ibid., 270
In Economy and Society Weber notes that 'the unfinished last part of Karl
Marx's Capital [vol 3] apparently was intended to deal with the issue of
class unity in the face of skill differentials.'4 9 Much of what Weber has
to say about classes may be read as an attempt on his part to complete
Marx's work in the light of twentieth-century developments.
Weber employs all of Marx's major class concepts: class consciousness,
class conflict, class interest, and so on. For Weber the major social classes
of his time were:
a / the working class as a whole - the more so, the more automated the
work process becomes,
b / the petty bourgeoisie,
c / the propertyless intelligentsia and specialists (technicians, various
kinds of white-collar employees, civil servants - possibly with
considerable social differences depending on the cost of their
training), and 50
d / the classes privileged through property and education.
In this list we can see Weber's departure from Marx - again, in the light
of the social developments that became especially evident after Marx died
in 1883.
It is true that Marx recognized the stratification of the working class of
51
his time. He discusses the 'badly paid strata' of the British working class
as well as the 'best paid part,' 52 the working-class 'aristocracy.' Marx also
noted the rise of what sociologists have called 'white-collar' workers. 'The
more developed the scale of production,' he wrote, 'the greater, even if
not proportionately greater, the commercial operations of the industrial
capital, and consequently the labor and other costs of circulation involved
in realizing value and surplus-value. This necessitates the employment of
commercial wage-workers who make up the actual office staff. 5 3 And yet
Marx never dealt systematically with either phenomenon - the strata
among the production workers or the rise of a stratum of office workers.
Nor did he discuss the implications of these phenomena for his theory of
social change. On balance, then, his writings give the impression that he
anticipated the 'sinking' of the petty bourgeoisie (small producers and
small businessmen) into the ranks of the working class; and that he failed
to anticipate the stupendous growth of the 'new middle class' - specialists,
technicians, clerks, and other white-collar employees. Yet the remarkable
growth of that class raised a fundamental question touching the very

50 Ibid.
51 Marx, supra note 45, 654-63
52 Ibid., 667-73
53 Marx Capital vol 3, 293-6
heart of Marx's theory: if members of the new middle class are

propertyless, that is, non-owners of the means of production, does that
mean that they share with the manual workers a common relationship to
the means of production? Some of Marx's followers tended to answer that
question in the affirmative; from which it followed that blue- and
white-collar workers have common interests and that they would develop
a common class consciousness. But it became increasingly clear in the
early twentieth century that white-collar employees did not look upon
manual workers as class brothers and sisters at all.
Under nineteenth-century conditions Marx may have been justified in
giving little attention to 'status' distinctions among various types of
workers; but for Weber, the theorist par excellence of growing bureauc-
ratization, it was obvious that differences in education, training, and
property other than means of production all played a considerable role in
shaping social psychology and, hence, class identification.
Thus what we find in Weber is a refinement of Marx's categories.
Accordingly he stressed that the control of all types of wealth - not only
the means of production - was a source of power; and that social honour
or prestige based upon property, education, skill, or whatever, might also
be transformed into power. For Weber, then, classes, status groups, and
political parties 'are phenomena of the distribution of power.' 'We may
speak of a class,' writes Weber, 'when 1 / a number of people have in
common a specific causal component of their life chances, insofar as 2 /
this component is represented exclusively by economic interests in the
possession of goods and opportunities for income, and 3 / 54 is represented
under the conditions of the commodity or labor markets.'
Although Weber is intent upon analytically separating 'class' from
'status group,' his definition is by no means a watering down of the class
concept. Class situation, he emphasizes, tends to determine 'life chances';
members of a class tend to share a common fate. In those terms, Weber's
view of class situation is not as remote from Marx's as some commentators
have suggested. 'It is the most elemental fact,' writes Weber,
that the way in which the disposition over material property is distributed among a
plurality of people, meeting competitively in the market for the purpose of
exchange, in itself creates specific life chances. According to the law of marginal
utility, this mode of distribution excludes the non-owners from competing for
highly valued goods; this favors the owners and, in fact, gives to them a monopoly
to acquire such goods. Other things being equal, the mode of distribution
monopolizes the opportunities for profitable deals for all those who, provided

with goods, do not necessarily have to exchange them. It increases, at least

generally, their power in the price struggle with those who, being propertyless,
have nothing to offer but their services ... This mode of distribution gives to the
propertied a monopoly on the possibility of transferring property from the
sphere of use as 'wealth' to the sphere of 'capital goods,' that is, it gives them the
entrepreneurial function and all chances to share directly or indirectly in returns
on capital. All this holds true within the area in which pure market conditions
prevail. 'Property' and 'lack of property' are, therefore, the basic categories of all
55
class situations.
And similarly in the Rechtssoziologie Weber writes: 'The formal right of a

worker to enter into any contract whatsoever with any employer
whatsoever does not in practice represent for the employment seeker
even the slightest freedom in the determination of his own conditions of
work, and it does not guarantee him any influence on the process. It
rather means ... that the more powerful party in the market, i.e., normally
the employer, has the possibility to set the terms, to offer the job "take it or
leave it," and, given the normally
56
more pressing need of the worker, to
impose his terms upon him.'
At the same time Weber goes on to show that within the broad
categories of propertied and propertyless, other important distinctions
exist - not only in income, but in prestige, or social honour, as well.
Prestige, for Weber, is associated with the style of life of a status group.
Within any given class, one will find several status groups. The relative
prestige accorded them may rest on the size and source of their income,
their political positions in the community, their education or specialized
training, or other evaluated social characteristics. Among the wealthy and
propertied, we find old and new rich and other status distinctions based
on the source of one's wealth; among the propertyless, we find wealth,
power, and status gradations based upon occupation, education, skill, size
of income, expertise, the colour of one's collar, and so on. Status
differences, Weber maintains, must be taken into account in class analysis
because such differences give us an idea of how certain social groups
within a class regard themselves and how they are regarded by others.
The disenchantingreligion and the modern world
The last two chapters of Kronman's book are the most interesting and in
many ways the most important. For it is there that Kronman skilfully
summarizes Weber's view of the roots of western rationalism, thereby also
55 Ibid.
56 Ibid., 730
giving the reader insight into Weber's own Weltanschauung. To under-

stand the Weber thesis in this regard, we must review his brilliant
comparative analyses of religion East and West.
In China, magic and animism were not only tolerated, they were
systematized so as to become an integral element of daily life. Scientific
knowledge, which had empirical beginnings based on practical experi-
ence, was soon enveloped in magical and supernatural practices and
rituals. It is true that the Confucian literati were 'this worldly' to a notable
degree; yet they not only tolerated magic as a means of taming the masses,
they themselves believed in the efficacy of magic. Under these circum-
stances it is understandable why they never waged war against the
magicians, never strove to uproot magical beliefs and practices from
Chinese culture.
In India as well, magico-religious practices had retarded technical-
industrial development. Tools were often treated as 'quasi-fetishes' and,
along with 'other traditional traits, this stereotyping of tools was one of the
strongest handicaps to all technical development.' 57 Indian religion had
led to an extreme devaluation of the world and to a contemplative flight
from it. Thus India, like China, remained an 'enchanted garden' with all
sorts of fetishism and animistic and magical beliefs and practices - spirits
in rivers, ponds, and mountains, highly developed word formulae,
finger-pointing magic, and the like. In contrast to the Hebrew prophets,
who never made peace with the magicians, the Brahmins (a cultivated,
genteel stratum like the Mandarins) in the interest of their power position
not only acknowledged the influence of magic but made numerous
concessions to the unclassical magicians. 5 8
The general character of Asian religion, Weber concluded (on the basis
of evidence from China, India, Korea, Ceylon, and so on), was a form of
gnosis - that is, knowledge in the spiritual realm, mystically acquired.
Gnosis was the single path to the 'highest holiness' and the 'highest
practice.' This knowledge, writes Weber, 'is not a rational implement of
empirical science such as made possible the rational domination of nature
and man as in the Occident. Rather it is the means of mystical and magical
domination over the self and the world ... It is attained by an intensive
training of body and spirit, either through asceticism or, and as a rule,
through strict, methodologically-ruled meditation.' 59 This doctrine gave
rise to a redemption aristocracy, for such mystical knowledge was
necessarily esoteric and charismatic, hence not accessible or communica-
ble to everyone. The holy and the godlike were attained by an 'emptying'
58 Ibid., 295
59 Ibid., 331
of the experience of this world. Psychic peace, not restlessness, was

god-like. Asiatic religion, placing no emphasis on 'this life,' led to a
pronounced other-worldliness. That this magical, anti-rational world-
view had a profound impact on economic conduct could not be doubted.
Magic was employed to achieve every conceivable objective. There were
'spells against enemies, erotic or economic competition, spells designed to
win legal cases, spiritual spells ... for forced fulfillment against the debtor,
spells for the securing of wealth, for the success of [all sorts of]
undertakings.' 60 The depth and tenacity of the magical mentality created
conditions in which the 'lust for gain' never gave rise to a western type of
capitalism. Notably absent from Asiatic religion was a development which
in the West had broken the hold of magic over people's minds and
engendered a 'rational,' this-worldly ethic. The beginning of that
historical process was to be traced, Weber believed, to ancient Israel. It
was there that a highly rational, religious ethic had originated. This ethic
'was free of magic and all forms of irrational quest for salvation; it was
inwardly worlds apart from the paths of salvation offered by Asiatic
religions. To a large extent this ethic still underlies [the] contemporary
Mideastern and6 1European ethic. World-historical interest in Jewry rests
upon this fact.'
Originating in the teachings of Moses and the prophets, the new ethic
rested on the unique relation of Israel to its God, expressed and
guaranteed in a unique historical event - the conclusion of a covenant
with Yahweh. The prophets and other devout Hebrews always hearkened
back to that great miraculous event in which God had kept his promise,
intervened in history, and liberated the Hebrews from Egyptian bondage.
That was proof not only of God's power but of the absolute dependability
of his promises.
Israel, then, as the other party to the covenant mediated by Moses,
owed a lasting debt of gratitude to serve and to worship the Lord of the
universe and to follow his laws strictly. This rational relationship,
unknown elsewhere, created an ethical obligation so binding that Jewish
tradition regarded 'defection from Yahweh as an especially fatal abomin-
ation.' 62 Furthermore, the markedly rational nature of this relationship
lay in the worldly character of God's promises to Israel. Not some
supernatural paradise was promised, but 'that they would have numerous
descendants, so that the people should become numerous as the sand of
the seashore, and that they should triumph over all enemies, enjoy rain,
6o Ibid., 336
61 Weber Ancient Judaism (trans. Gerth and Martindale, 1952) 4
62 Ibid., 119
rich harvests, and secure possessions.'63 What God offered, writes Weber,
was 'salvation from Egyptian bondage, not from a senseless world out of
joint. He promised not transcendent values but dominion over Canaan,
which one was out to conquer, and a good life.' 64 If the nation or an
individual suffered and God failed to help, that was a sign that some
commandment had been violated. Which one? Irrational means of
divination could not answer that question, only a knowledge of the laws
and a soul-searching scrutiny of one's conduct. The idea of the covenant
had thus led to a comparatively rational mode of raising and answering
such questions. Hence prophets and priests alike 'turned with great
sharpness against soothsayers, augurs, day-choosers, interpretors of
signs, [and] conjurors of the dead, defining their ways ... as charateristical-
ly pagan.' 65 In that way the devout Hebrews initiated the process of
breaking magic's hold upon the world. In so doing, they 'created the basis
for our modern science and technology, and for capitalism.' 66 In the East,
in contrast, religion had the opposite effect.
In this light the true import of Weber's writings on religion should be
perfectly clear. His fastidious examination of eastern religion (and the
contrasts it presents to ancient Judaism and Christianity), may be viewed
as a masterly analysis of what Marx might have called the religio-cultural
'superstructure' of the Asiatic mode of production. Nothing in Weber's
analysis contradicts Marx's conception. On the contrary, Weber's pene-
trating insights provide a fuller grasp of the social totality - the
'foundation' and the 'superstructure.'
Religion, for Weber, was neither an epiphenomenon nor a prime
mover of history. It was rather a significant element in a complex
constellation of factors. Moreover, Weber nowhere proposed a general
theory of the relation of religion to other conditions. Weber's theories,
like Marx's, were historically specific: if eastern religion had placed
obstacles before the development of industrial capitalism, that was true
only in a specific historical epoch. Weber observes that when the western
powers began to build railroads and factories in China, the geomancers
demanded that in locating 'structures on certain mountains, forests,
rivers, and cemetery hills, foresight should be exercised in order not to
disturb the peace of the spirits. 6 7 Then in a footnote Weber adds this
observation:
(A]s soon as the Mandarins realized the chances for gain open to them, these
63 Ibid.
64 Ibid., 126
65 Ibid., 167
67 Ibid.
MAX WEBER'S SOCIOLOGY OF LAW 21 1
difficulties suddenly ceased to be insuperable; today [1920] they are the leading
stockholders in the railways. In the long run, no religious-ethical conviction is
capable of barring the way to the entry of capitalism, when it stands in full armor
before the gate; but the fact that it is [now] able to leap over magical barriers does
not prove that genuine capitalism
68
could have originated in circumstances where
magic played such a role.
For Weber, the disenchantment of the world meant that there are no
longer any 'mysterious incalculable forces that come into play, but rather
that one can, in principle, master all things by calculation.' 69 This, the
western world-view, which even in Weber's time was rapidly diffusing to
all parts of the world, teaches men to strive for the control and domination
of nature by means of technical-instrumental rationality. Weber early
recognized, however, that this outlook is liable to create an 'iron cage.'
Bureaucracy
Weber was among the first to bring into relief the extraordinary
bureaucratization of industrial societies. Large, formally rational, com-
plex organizations were becoming more and more common. 'Power,' for
Weber, referred to the ability to realize one's will despite and against the
resistance of others. And it was crystal clear that those who occupied the
command posts of bureaucratic organizations had little trouble in
realizing their will, whether they were personally wealthy or not.
Thus Weber argued that the concentration of power was not confined
to the economic sphere. There were several strategic areas of social life in
which one could observe: I / the concentration of the means of power in
the hands of small minorities, and 2 / the consequent separation of the
majority of the people from those means. Such was the inevitable
meaning of advancing bureaucratization. For Marx and the Marxists the
essential question was: who controls the means of production? For Weber,
it was necessary to ask, in addition, who governs the other strategic means
of controlling and dominating human beings?
Weber does not deny that the control of key economic resources can be
decisive; but that in itself, he holds, is insufficient for an understanding of
the structure of social power in general. He therefore elaborates Marx's
theory, arguing that control of the means of political administration,
means of violence, means of scientific research, and so forth is a major
factor in dominating human beings. He writes: 'Organized domination
which calls for continuous administration, requires that human conduct
68 Ibid., 276, note 4

69 From Max Weber, supra note 5, 138-9
be conditioned to obedience towards those masters who claim to be the

bearers of legitimate power. On the other hand ... organized domination
requires the control of those material goods which in a given case are
necessary for the use of physical violence. Thus, organized domination
requires control of the personal executive staff and the material imple-
ments of administration.' 70 In this way Weber convincingly observes that
Marx's 'separation' of the worker from the means of production is only
one facet of a general social process. If 'separation' is one side of the coin,
concentration of power is the other. Marx's concentration of the means of
production is generalized by Weber to other means of power, notably the
administrative, military, and scientific-technical. In that light Weber's
analysis is, again, not so much a refutation as an adaptation of Marx's
theory to twentieth-century conditions.
For Weber, bureaucracy was becoming more and more characteristic
of twentieth-century society. Growing bureaucratization was one more
powerful manifestation of formal and technical rationality, of the
'rationalization process' in the West. Hence it was essential, Weber
believed, to understand the nature of bureaucracy. Marx had focused
attention on the concentration of economic power, but Weber showed
that the concentration of power was characteristic of several major
institutional spheres of modern society and not just the economy.
Everyman, and not just the blue-collar worker, was becoming 'pro-
letarianized.' Everyman has become a paid labourer, working in a large
complex organization, and depending upon it for his livelihood.
Once such bureaucratic structures are established, they are practically
indestructible, Weber believed. The main reason is that a bureaucracy is a
power instrument of the first order for those who occupy its command
posts. It makes possible the domination and control of large numbers of
people. The individual bureaucrat, on the other hand, is chained to his
specialized activity and is only a small cog in the total operation. His entire
mind and body have been trained for obedience, so that those who rule
such organizations expect compliance as a matter of course. Thus Weber
makes a strong argument for the inevitable growth of bureaucracy. The
vested power interests in it, the social control and discipline it facilitates,
the specialization of work and the accompanying requirements of
expertise - all these factors would make the dismantling of bureaucracy
extraordinarily difficult. Indeed, bureaucracies are rarely, if ever,
dismantled; they are merely taken over. The bureaucratic state apparatus
can be 'made to work for anybody who knows how to gain control over it.
A rationally ordered officialdom continues to function smoothly after the
70 See Politics as a vocation, in ibid. 8o.

enemy has '7 1

occupied the territory; he merely needs to change the top
officials.
Weber viewed the bureaucratization of modern society with apprehen-
sion. The immense concentration of power in fewer and fewer hands was
bound to endanger liberal-democratic institutions and to diminish
individual freedoms. Increasingly the individual was subjected to an
organizational discipline that drastically reduced his initiative; increasing-
ly he was subjected to a formally rational regimen that eliminated any
opportunities for autonomous and genuinely rational conduct. In Weber's
words, bureaucratic 'discipline is nothing but the consistently rationalized,
methodically prepared and exact execution of the received order, in
which all personal criticism is unconditionally suspended and the72 actor is
unswervingly and exclusively set for carrying out the command. What
all formally rational, large-scale organizations have in common is
regimentation and discipline. A bureaucracy, no less than a factory, tends
to mould a person's psycho-physical being in an effort to adapt it to the
demands of the organization. In short, bureaucracy 'functionalizes'
human beings. 'It is horrible to think,' wrote Weber, 'that the world could
one day be filled with nothing but those little 73
cogs, little men clinging to
little jobs and striving towards bigger ones.'
Weber of course distinguishes between the leader and the bureaucratic
official, the difference between them being a matter of responsibility: 'An
official who receives a directive which he considers wrong, can and is
supposed to object to it. If his superior insists on its execution, it is his
duty and even honour to carry it out as if it corresponded to his innermost
conviction and to demonstrate in this fashion that his sense of74duty stands
above his personal preference ... This is the ethos of office.'
In its most degenerate form the ethos of office leads to what Hannah
Arendt has called the 'banality of evil,' little men perpetrating great evil by
following the leader's orders and simply doing their duty. The modern
world, Weber feared, would be increasingly dominated by such amoral,
small-minded, careerist bureaucrats dutifully obeying Caesarist de-
magogues.
For Weber this process seemed to transcend socio-economic systems.
To be sure, capitalism had its dehumanizing consequences. It subjected a
large portion of the human species to alienated labour, to formally
rational routines offering no real opportunity for self-realization. But

72 Ibid., 1149
73 Cited by Mayer Max Weber and German Politics, (1944) 127
would socialism be humanly and morally superior? Weber doubted it.

For, as Kronman observes, freedom was the standard by which Weber
evaluated all social arrangements and programs for reform (p. 186). Thus
Weber often asked his socialist friends how the concentration of all means
of production and power in the hands of the state was supposed to bring
about more freedom rather than less. But he never received a convincing
response.
Weber never pretended that his scientific analyses could teach us
whether capitalism or socialism is the morally superior system. Science
can never show us the way to 'true values.' Besides, a conflict of values, or
'gods,' as he sometimes described it, is inevitable. What, then, can science
offer? Clarity, replies Weber. Science and in this case social science can
provide insight into the value-oriented nature of human action, insight
into the means of attaining certain goals and the costs that their
attainment entails in the renunciation of other goals.
If clarity is the criterion, then there can be no doubt that Max Weber's
contribution will have a lasting value. And Anthony Kronman should be
commended for the scholarly and thoughtful manner in which he has
conveyed Weber's ideas to his colleagues.

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Bluebook 21st ed.

ALWD 7th ed.

APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 9th ed.

OSCOLA 4th ed.

Max Weber's Rechtssoziologie ('Sociology of Law') is the only work in which

* Professor, Department of Sociology, University of Toronto

(1985), 35 UNIVERSITY OF TORONTO LAW JOURNAL 183

Formed in the context of the so-called Methodenstreit, a fierce debate that

However, Weber no less vehemently rejected the positivist-reductionist

truly comes to grips with it that ignores either meaning or causality.

knowing an actor's aims and the actual means he is employing, and by

have sociological relevance in so far as they are phenomena to which

Values and science

Social scientists and scholars, Weber maintained, have a special responsi-

In other words, unlike Socrates, Weber insists that knowledge or rational

Weber and Marx

In several places in his study Kronman perceptively calls attention to

throughout the centuries was to be explained by a changing, complex

7 Weber The Methodology of the Social Sciences (1949) 65

editorial policy: 'The analysis of social and cultural phenomena with

It was Weber's intention to assess the contribution of the Protestant ethic

phenomena, but to economically relevant phenomena as well. '8 Religion is

23 Weber GeneralEconomic History (trans. Knight, 1961) 67

discussion of pre-capitalist social formations. Even Marx's conception of

in the royal oikos.' 30 Sumerian kings also engaged in commerce and

34 Weber, supra note 23, 57-8 (italics added)

Weber continues, 'conditioned the existence of the bureaucracy, the

39 Ibid. 12 (italics added)

insistence on the reciprocal influence of law and economics. Weber's

Law and capitalism: Weber's complementarity with Marx

In Kronman's discussion of law and capitalism he correctly emphasizes

40 Weber, supra note 23, 129

47 Weber, supra note 23, 258

49 Weber, supra note 3, 305

heart of Marx's theory: if members of the new middle class are

54 Weber, supra note 3, 927

with goods, do not necessarily have to exchange them. It increases, at least

And similarly in the Rechtssoziologie Weber writes: 'The formal right of a

The disenchantingreligion and the modern world

giving the reader insight into Weber's own Weltanschauung. To under-

of the experience of this world. Psychic peace, not restlessness, was

68 Ibid., 276, note 4

be conditioned to obedience towards those masters who claim to be the

70 See Politics as a vocation, in ibid. 8o.

enemy has '7 1

71 Weber, supra note 3, 989

would socialism be humanly and morally superior? Weber doubted it.

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