Max Weber on Law - Dictionary of Arguments
Habermas III 231
Law/Weber/Habermas: Weber calls rationalization the cognitive independence of law and moral, i.e. the replacement of moral-practical insights of ethical and legal doctrines, principles, maxims and decision rules of world views in which they were initially embedded. Cosmological, religious and metaphysical worldviews are structured in such a way that the internal difference between theoretical and practical reason cannot yet come into effect.
Habermas III 232
The autonomisation of law and moral leads to formal law and to profane ethics of conviction and responsibility. Of course, this autonomization is still in the making even within religious systems of interpretation. This leads to the dichotomization between a search for salvation, which is oriented towards inner salvation goods and means of salvation, and the realization of an outer, objectified world. Weber shows how ethics of conviction approaches develop from this religiousness of conviction. (1)
Habermas III 278
Law/Weber/Habermas: for the emergence of modern law, Weber must postulate a process that is assumed in parallel, even if not simultaneously by him for the rationalization of worldviews. (See World View/Weber). The availability of post-traditional legal concepts is not yet identical with the enforcement of a modern legal system. Only on the basis of rational natural law can legal matters be reconstructed in basic concepts of formal law in such a way that legal institutions can be created that formally satisfy universalist principles. These must regulate private commercial transactions between the owners of goods and the complementary activities of the public administration.
HabermasVsWeber: this does not show the parallelism of these two processes clearly enough.
Habermas III 332
Law/Weber/HabermasVsWeber/Habermas: Weber's theoretical position of law in his theory of rationalization is ambiguous in that it simultaneously permits the institutionalization of procedural rational economic and administrative action and also seems to make the detachment of subsystems from their moral-practical foundations possible. The dialectical explanation of the conflicting developments of the development of science and religion cannot be applied to the development of law, since it appears from the outset in a secularized form.
Habermas: Weber reinterprets modern law in such a way that it is separated from the evaluative value sphere.
Habermas III 346
HabermasVsWeber: Weber empirically reinterprets the problem of legitimacy and decouples the political system from forms of moral-practical rationality; he also cuts the formation of political will back to processes of power acquisition and power competition.
Law/Weber: as far as the normative agreement is based on tradition, Weber speaks of conventional community action. To the extent that this is replaced by success-oriented, purpose-oriented action, the problem arises as to how these new scopes can in turn be legitimate, i.e. normatively bindingly ordered. Rational social action takes the place of conventional community action.
Habermas III 347
Only the procedure of coming into being justifies the assumption that a normative agreement is rationally motivated. Only within normatively defined limits may legal entities act rationally without regard to conventions.
HabermasVsWeber: he fluctuates here between discursive agreement and arbitrary statute.
Habermas III 351
Modern civil private law/Weber/Habermas: is characterised by three formal features: positivity, legalism and formality.
Definition positivity/Habermas: positively set law is not generated by interpretation of recognized and sacred traditions, it rather expresses the will of a sovereign
Habermas III 352
legislator, which uses legal organisational means to regulate social offences conventionally.
Definition Legalism/Habermas: legal entities are not subject to any moral motives other than general legal obedience. It protects their private inclinations within sanctioned boundaries. Not only bad convictions, but also actions that deviate from the norm are sanctioned, assuming accountability.
Definition Formality/Law/Habermas: Modern law defines areas of legitimate arbitrariness of private individuals. The arbitrary freedom of legal entities in a morally neutralized area of private actions with legal consequences is assumed. Private law transactions can therefore be regulated negatively by restricting authorisations that are recognised in principle (instead of a positive regulation of concrete obligations and material bids). Anything that is not prohibited by law is permitted in this area.
Habermas: the system functionality corresponding to these characteristics results from legal structures in which procedural rational action can become general. It does not explain how these legal structures themselves are possible.
Habermas III 353
Rather, the form of modern law is explained by the post-traditional structures of consciousness it embodies.
HabermasVsWeber: he would have to understand the modern legal system as an order of life, which is assigned to the moral-practical way of life. But Weber's attempt to view the rationalization of law exclusively from the point of view of rationality of purpose contradicts this.
Habermas: only at a post-conventional level does the idea of the fundamental critiqueability and need for justification of legal norms emerge.
Habermas III 354
Modern Law/Weber/Habermas: separates morality and legality. This requires practical justification. The moral-free sphere of law refers to a moral based on principles. The achievement of making something positive is to shift justification problems, i.e. to relieve the technical handling of the law of justification problems, but not to eliminate these justification problems. This justification, which has become structurally necessary, is expressed in the catalogue of fundamental rights contained in the civil constitutions alongside the principle of popular sovereignty.
Habermas III 357
Modern Law/Weber: For Weber, modern law in the positivist sense is to be understood as the law that is set by decision and completely detached from rational agreement, from concepts of justification, no matter how formal they may be. ((s) > Carl Schmitt's Decisionism/Weber).
WeberVsNatural Law: Thesis: There can be no purely formal natural law.
Being-Should/Weber: The supposed to be valid is considered to be identical with that which in fact exists everywhere on average; the 'norms' obtained by logical processing of concepts of legal or ethical, belong in the same sense as the 'natural laws' to those generally binding rules which 'God himself cannot change' and against which a legal system must not attempt to rebel.
Habermas III 358
HabermasVsWeber: he confuses the formal characteristics of a post-traditional level of justification with particular material values. Nor does he sufficiently distinguish between structural and content-related aspects in rational natural law and can therefore equate "nature" and "reason" with value contents, from which modern law, in the strict sense, is detached as an instrument for asserting any values and interests. (See Foundation/Weber).
Habermas III 362
Procedural legitimacy/procedural rationality/law/HabermasVsWeber: as soon as the rationalization of law is reinterpreted as a question of the procedural rational organization of procedural rational management and administration, questions of the institutional embodiment of moral-practical rationality cannot only be pushed aside, but downright turned into its opposite: These now appear as a source of irrationality, at least of "motives that weaken the formal rationalism of law". (3)
Habermas: Weber confuses the recourse to the establishment of legal rule with a reference to particular values.
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Habermas IV 122
Law/Weber/Habermas: Question: How can a contract bind the parties if the sacred basis of the law has been removed?
Solution/Hobbes/Weber/Habermas: the standard answer since Hobbes and up to Max Weber is that modern law is compulsory law. The internalization of moral corresponds to a complementary transformation of the law into an externally imposed, state-authorized power based on the state sanction apparatus. The quasi automatic enforceability of the fulfilment of legal claims
Habermas IV 123
is to guarantee obedience.
DurkheimVsHobbes/DurkheimVsWeber/Habermas: Durkheim is not satisfied with that. Obedience must also have a moral core. The legal system is in fact part of a political order with which it would fall if it could not claim legitimacy.
1. M. Weber, Gesammelte Ausätze zur Religionssoziologie, Vol. I. 1963, p. 541.
2.M. Weber, Wirtschaft und Gesellschaft, Ed. J. Winckelmann, Tübingen 1964, p. 638
3.Ibid p. 654_____________Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. The note [Author1]Vs[Author2] or [Author]Vs[term] is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition.
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