Feldman S, An Interpretation of Max Weber's Theory of Law, 1991

American Bar Foundation
An Interpretation of Max Weber's Theory of Law: Metaphysics, Economics, and the Iron Cage
of Constitutional Law
Author(s): Stephen M. Feldman
Source: Law & Social Inquiry, Vol. 16, No. 2 (Spring, 1991), pp. 205-248
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An Interpretation of Max
Weber's Theory of Law:
Metaphysics, Economics,
and the Iron Cage of
Constitutional Law
Stephen M. Feldmtn
Amonglegalscholars,AnthonyT. Kronmanand David M. Trubekhave
providedtheleadinginterpretations of Weber'stheoryof law. Kronmanand
Trubekagreeon twoimportant points:Weber'stheoryisfundamentally con-
tradictory,and Weber's theory relates to law
primarily private subjects such
as contracts.Thisarticlecontestsbothof thesepoints.Buildingon a founda-
tion of Weber'sneo-Kantianmetaphysics and his sociological categoriesof
economicaction,thisarticleshowsthat Weber'stheoryof law is notfunda-
mentallyinconsistent;ratherit exploresthe inconsistencies that are inherent
within Westernsociety itself, includingits legal systems. Furthermore,
Weber'sinsightscan be appliedto modernconstitutional jurisprudence.
Weberiantheoryrevealsthatmodernconstitutional law is riddledwithirrec-
oncilabletensionsbetweenprocessand substance-betweenformaland sub-
stantiverationality.In the contextof racialdiscrimination casesinvolving
equalprotectionand theFifteenth Amendment, theSupremeCourt'saccept-
ance of JohnHartEly'stheoryof representation-reinforcement demonstrates
the Court'sresolutepursuitofformalrationality,whichinsuresthatthe sub-
stantivevaluesand needsof minorities will remainunsatisfied.
Max Weber'ssociologyis a modernistcritiqueof Westernliberalinsti-

tutions and thought. Weberbores in on liberaldichotomies: free will ver-
Stephen M. Feldman is an associate professor at the University of Tulsa College of

Law. J.S.M., Stanford Law School, 1986; J.D., University of Oregon, 1982.
The author thanks David Trubek, Richard Delgado, John Hart Ely, Mark Tushnet,
Gero Lenhardt of the Max Planck Institute, Tom Arnold, Taunya Banks, David Clark, and
Laura Feldman for their helpful comments on earlier drafts.
© 1991 American Bar Foundation.

0897-6546/91/1602-0205$01.00 205

206 LAW AND SOCIAL INQUIRY
sus determinism, rationality versus irrationality, form versus substance,

and fact versus value. He traces these dichotomies, explores their benefits,
and then unmercifully uncovers their costs. While performing his task,
however, Weber knowingly and self-consciously accepts the liberal vision
of the world: Weber is the "liberal in despair."1
In recent years, scholars have rediscovered Weber's theory of law.2
Among legal scholars, Anthony T. Kronman and David M. Trubek have
provided the leading interpretations of Weber.3 Kronman and Trubek
agree on two important points: first, Weber's theory is fundamentally con-
tradictory, reflecting "his apparent 'intellectual or moral schizophrenia,' "4
and, second, Weber's theory relates primarily to private law subjects such
as contracts.5 This article offers a fresh reading of Weber's theory of law
that contests both of these points. Weber is not fundamentally inconsis-
tent, rather he explores the inconsistencies or tensions that are inherent
within Western society and its legal systems. Furthermore, Weber's in-
sights into law can be profitably applied to modern constitutional jurispru-
dence, even though he himself focused on contract law. His theory allows
us to approach constitutional law from within: A Weberian critique ac-
cepts the current conceptions of constitutional law, acknowledges their ad-
vantages, but then underscores their dehumanizing disadvantages. In
particular, Weberian theory reveals that modern constitutional law is rid-
dled with irreconcilable tensions between process and substance-between
formal and substantive rationality. Yet, because a Weberian critique ac-
1. T. Bottomore & W. Outhwaite, "Introduction,"in Karl Lowith, Max Weberand

KarlMarx 16, trans. H. Fantel (London: George Allen & Unwin, 1982) ("Lowith,Weber
and Marx");David M. Trubek, "Max Weber'sTragicModernismand the Study of Lawin
Society," 20 Law & Soc'yRev. 573, 592 (1986).
2. See, e.g., Anthony T. Kronman,Max Weber(Stanford,Cal.: Stanford University
Press, 1983) ("Kronman,Max Weber");Donald N. Levine,The FlightfromAmbiguity(Chi-
cago: Universityof Chicago Press, 1985) ("Levine,'he Flight");WolfgangSchluchter,The
Riseof WesternRationalism (Berkeley:Universityof CaliforniaPress,1981)("Schluchter,The
Rise");HaroldJ. Berman, "Some False Premisesof Max Weber's Sociology of Law," 65
Wash.LQ. 758 (1987);David Campbell,"TruthClaims and Value-Freedomin the Treat-
ment of Legitimacy:The Case of Weber,"13 J.L & Soc'y207 (1986);SallyEwing,"Formal
Justiceand the Spirit of Capitalism:Max Weber'sSociologyof Law,"21 Law & Soc'yRev.
487 (1987);Trubek,20 Law& Soc'yRev.;David M. Trubek,"ReconstructingMax Weber's
Sociologyof Law,"37 Stan.L Rev. 919 (1985) (reviewingKronman,Max Weber).
3. See Kronman,Max Weber;Trubek, 20 Law & Soc'yRev.;Trubek,37 Stan.L Rev.;
David M. Trubek,"MaxWeberon Lawand the Rise of Capitalism,"1972 Wis.L Rev.720.
4. Trubek,20 Law & Soc'yRev.at 575 (quotingKronman,Max Weber185 (Kronman
writes: "There is . . . something in Weber'swritingsthat can almost be describedas an
intellectual(or moral)schizophrenia,an oscillationbetweenirreconcilableperspectivesthat
helps to explain why he has found supportersas well as detractorson both the Left and
Right"));cf. JurgenHabermas,1 The Theoryof Communicative Action253-54, trans.T. Mc-
Carthy (Boston: BeaconPress, 1984) ("Habermas,Communicative Action")(Weber'ssociol-
ogy of law is contradictory).
5. See Kronman,Max Weber96-117; Trubek,37 Stan.L Rev.at 933-35; Trubek, 1972
Wis. L Rev. at 752 (Weber'sideal types should not be applied in new contexts);see also
Ewing,21 Law & Soc'yRev. at 497-502.

An Interpretationof Max Weber's Theory of Law 207
cepts the present constitutional conceptions, it refuses to offer revolution-

ary or utopian alternatives to contemporary constitutional jurisprudence.
Instead, Weber offers only despair.
Part I of this article explores Weber's neo-Kantian metaphysics and
his sociological categories of economic action.6 An understanding of these
two foundations is a prerequisite to a proper understanding of Weber's
theory of law. Weber's metaphysics-the first foundation-informs his
critique of Western liberal institutions, leading him to emphasize their in-
herent or structural tensions, such as the tension between abstract calcula-
bility and the satisfaction of ultimate values and needs. Weber's categories
of economic action-the second foundation-parallel his categories of
legal thought. When discussing both economic action and legal thought,
he defines four categories: formally rational, formally irrational, substan-
tively rational, and substantively irrational. Despite this correspondence
between the categories, Weber's description of the categories of legal
thought is unrefined and difficult to understand, while his description of
the categories of economic action is lucid and precise. Thus, a preliminary
discussion of the definitions of and relationships between the categories of
economic action facilitates an understanding of the categories of legal
thought.
Part II offers an interpretation of Weber's theory of law, built on the
earlier discussions of Weber's metaphysics and his categories of economic
action.7 Part II begins by defining Weber's categories of legal thought-
formal and substantive rationality, and formal and substantive irrational-
ity-and then focuses on one of Weber's central themes: the increasing
formal rationality of law. In the course of this discussion, both the causal
relationship between law and economy and the tension between formal
and substantive rationality are explored.
Part III illustrates the current significance of Weber's theory of law in
the context of modern constitutional theory and adjudication.8 Part III
begins by linking the historical development of process-oriented theory in
constitutional law to Weber's vision of the increasing formal rationality of
legal thought. Part III then focuses on the apotheosis of process-oriented
constitutional theories, John Hart Ely's theory of representation-reinforce-
ment,9 and how the Supreme Court has applied this approach in cases of
6. See infra text accompanying notes 10-46.

7. See infra text accompanying notes 47-124. In this section, I argue that Weber is, for
the most part, consistent, not that he always is entirely consistent. For an example of a
minor inconsistency on Weber's part, see infra text accompanying notes 80-86. Nonethe-
less, I do claim that Weber is not fundamentally contradictory; he is, to the contrary, funda-
mentally consistent. In other words, the core of Weber's theory of law is not riddled with
irreconciliable contradictions.
9. See John Hart Ely, Democracy and Distrust (Cambridge: Harvard University Press,
1980) ("Ely, Democracy and Distrust"). For a critique of Ely's theory (and other "realist"

racial discrimination. Through representation-reinforcement, the Court,

in an effort to avoid imposing its own substantive values on society, at-
tempts to do no more than ensure that the political process is fair and
open. Part III concludes with a Weberian critique of this process-oriented
approach: The Court's pursuit of fair process may lead to formal rational-
ity, but it simultaneously and necessarily causes substantive irrationality,
and the suppression of ultimate values and needs.
I. FOUNDATIONS OF WEBER'S THEORY OF LAW

The dominant purpose of Weber's work-the thread that weaves
through all his varied writings-is to explore the increasing rationalization
of Western society. Weber defines this increasing rationalization as, in es-
sence, the increasing ability to calculate one's means and ends. Calculabil-
ity has increased, according to Weber, as the Western world has become
disenchanted, growing increasingly secularized; as humans are freed from
the constraints of mysterious forces, they turn to technical mechanisms to
understand and determine their world.10 The corpus of Weber's writing is
devoted to exploring how capitalism and the rule of law contribute to and
are shaped by this increasing rationalization."1 And the foundation for his
exploration of Western society is his neo-Kantian metaphysics.
theories) from an interpretivist perspective, see Stephen M. Feldman, "The New Metaphys-
ics: The Interpretive Turn in Jurisprudence," 76 Iowa L Rev. (forthcoming). Ely's theory
serves as the foundation for Cass Sunstein's influential republican-based constitutional the-
ory. See Cass Sunstein, "Naked Preferences and the Constitution," 84 Colum. L. Rev. 1689
(1984). For a critique of Sunstein's theory, see Stephen M. Feldman, "Exposing Sunstein's
Naked Preferences," 1989 Duke LJ. 1335.
10. See Max Weber, FromMax Weber: Essaysin Sociology139, ed. H. Gerth & C. Mills
(New York: Oxford University Press, 1946).
11. See Reinhard Bendix, Max Weber: An IntellectualPortrait391 (Berkeley: University
of California, 1978) ("Bendix, Weber"); see, e.g., Max Weber, Economy and Society, ed. G.
Roth & C. Wittich (Berkeley: University of California Press, 1978) ("Weber, Economyand
Society").
Weber's emphasis on rationalization and its virtues for Western society may be the
reason that he is sometimes unfairly characterized as an apologist for liberalism, supporting
the related rises of capitalism and bureaucratic domination. See, e.g., Gerald E. Frug, "The
Ideology of Bureaucracy in American Law," 97 Harv. L. Rev. 1276, 1297-1300 (1984) (char-
acterizes Weber as apologist for bureaucratization); Herbert Marcuse, "Industrialization and
Capitalism in the Work of Max Weber," in Negations 208 (Boston: Beacon Press, 1968).
This interpretation of Weber is further supported by his clear and intentional disagreement
with Marx, the symbol of anticapitalism. See, e.g., Max Weber, The Methodologyof the Social
Sciences68 ed. E. Shils & H. Finch (New York: Free Press 1949) ("Weber, Methodologyof the
SocialSciences").
Despite Weber's important disagreements with Marx, Weber and Marx nonetheless
share several common views and goals. Most important, both Weber and Marx criticize
capitalism. Weber himself acknowledges that he and Marx agree that while capitalism in-
creases rational calculability of means and ends in the marketplace, it nonetheless decreases
the rational satisfaction of real human needs. See Karl Marx, The Marx-EngelsReader,ed. R.
Tucker; 2d ed. (New York: W. W. Norton & Co., 1978) ("Marx, Reader"); Richard

An Interpretation of Max Weber's Theory of Law 209
A. Neo,Kantian Metaphysics
Weber's definition of sociology begins to reveal his commitment to a
neo-Kantian metaphysics. He defines sociology as "a science concerning
itself with the interpretive understanding of social action and thereby with a
causal explanation of its course and consequences."'2 An action, accord-
ing to Weber, occurs when "the acting individual attaches subjective
meaning to his behavior-be it overt or covert, omission or acquies-
cence."13 An action is social when "its subjective meaning takes account
of the behavior of others and is thereby oriented in its course."14
These definitions reveal Weber's fundamental and immediate
commitment to the tensions or dichotomies at the core of Western liberal
thought: He seeks to understand the meaning of action, which the indi-
vidual subjectively attaches to his or her behavior, while simultaneously
seeking to explain the causes and consequences of that action. Thus,
Weber is consciously attempting to straddle the chasm between free will-
the belief in the subjective creation of meaning and action-and determin-
ism-the belief that human actions are caused. He states in his essay,
"'Objectivity' in Social Science and Social Policy," "We wish to under-
stand on the one hand the relationships and the cultural significance of
individual events in their contemporary manifestations and on the other
the causes of their being historically so and not otherwise."15
Weber, however, does not simply assume that he can bridge the gap
Schmitt, Introductionto Marx and Engels(Boulder, Col.: Westview Press, 1987); Max Weber,
Max Weber Selectionsin Translation252-53, ed. W. Runciman (Cambridge: Cambridge Uni-
versity Press, 1978) ("Weber, Selections");see also Lowith, Weber& Marx 48 (cited in note 1).
12. Weber, Economyand Society 4 (emphasis added).
13. Id.
14. Id.
15. Weber, Methodologyof the Social Sciences 72 (emphasis in original). With regard to
freedom, Weber suggests that individual humans choose their own values, and this ability to
choose must ultimately entail freedom. For example, Weber states that "humanbeingsconfer
meaning and significance" on the infinite reality and that humans are "endowed with the
capacity and the will to take a deliberate attitude towards the world and to lend it signifi-
cance." Id. at 81 (emphasis in original). These statements regarding human will and free-
dom explain Kronman's recent and compelling characterization of Weber as believing in the
positivity of values. See Kronman, Max Weber 16-22. But see Nancy L. Schwartz, "Max
Weber's Philosophy," 93 Yale L.J. 1386, 1392 (1984) (reviewing Kronman, Max Weber) (crit-
icizing Kronman's argument). Nevertheless, Weber does not simplistically accept the con-
cept of human freedom. He self-consciously wrestles with the tension between freedom and
determinism, even questioning the meaning of the concept of human freedom. He argues
that many believe that human freedom is equivalent to incalculability or irrationality: A
person is free if his or her actions cannot be calculated. Max Weber, Roscherand Knies: The
Logical Problemsof HistoricalEconomics 120, trans. G. Oakes (New York: Free Press, 1975)
("Weber, Roscherand Knies"). Weber maintains, however, that human action is no less cal-
culable than natural processes. For example, the forecast of the weather "is far from being
as 'certain' as the 'calculation' of the conduct of a person with whom we are acquainted."
Id. at 121. Furthermore, according to Weber, insofar as a human action is attributable to a
concrete motive, the human action is less irrational than the natural event. Id. at 125,
191-98. Incalculability, indeed, "is the principle of the 'madman.' " Id. at 125.

between free will and determinism. To the contrary, he instead explicitly

identifies the metaphysical commitments supporting his bridge. He de-
scribes reality and our experience of reality in a largely Kantian manner,
which is rooted in the Cartesian opposition of subject and object.16 Thus,
like Kant, Weber expressly begins with the assumption that there is an
"infinite reality"'17-a "meaningless infinity."18 Each event, consequently,
has an infinite number of causes; one cannot possibly know every cause of
any particular event. Weber gives the example of a boulder that falls from
the side of a cliff during a storm and splinters into thousands of scattered
fragments. He asks whether one can answer certain questions regarding
this event: "Into how many fragments was the boulder broken? How are
the fragments shaped? And into what groups did the scattered fragments
fall?"19 His response is that while the event is not "'inexplicable'. .. , a
genuine causal 'regress' would be quite impossible."20 Moreover, Weber
adds, "an exhaustivecausal investigation of any concrete phenomena in its
full reality is not only practically impossible-it is simply nonsense."21
Consequently, according to Weber, a monocausal or reductionist ap-
proach cannot explain the development of society; instead we must under-
stand society as resulting from a complex interaction of many factors,
including law, religion, and economy.
If reality is a "meaningless infinity," and each event flows from an
"infinite causal web,"22 then, asks Weber, how can one's life be meaning-
ful and how can one objectively know anything? He again adopts a Kant-
ian viewpoint: "The objective validity of all empirical knowledge rests
exclusively upon the ordering of the given reality according to categories
16. See Immanuel Kant, Critique of Pure Reason, in Kant Selections,ed. T. Greene (New
York: Charles Scribner's Sons, 1929) ("Kant, Critiqueof Pure Reason")cf. Levine, The Flight
143-44 (cited in note 2) (on Weber and Kant); Schluchter, The Rise 13-15 (cited in note 2)
(on Weber and Kant). Weber states that modern epistemology derives from Kant. Weber,
Methodologyof the Social Sciences 106. On the Cartesian opposition of the subject and the
objectiveworld, see RichardJ. Bernstein,BeyondObjectivism
and Relativism:Science,Herme-
neutics, and Praxis 115-18 (Philadelphia: University of Pennsylvania Press, 1983); Frederick
Copleston, 4 A History of Philosophy55 (Garden City, N.Y.: Image Books, 1960); Rene
Descartes, Meditations (1641), trans. J. Veitch, in The Rationalists97, 112-27 (Garden City,
N.Y.: Anchor Books, 1974). This view of the world replaced a more unified vision, which
had its roots in Aristotle. Cf. Alasdair MacIntyre, After Virtue 52-61, 81-82, 2d ed. (Notre
Dame, Ind.: University of Notre Dame Press, 1984) (Aristotle was rejected in the 17th and
18th centuries). Richard Rorty writes: "The veil-of-ideas epistemology which took over phi-
losophy in the seventeenth century ... [gave] rise to a new philosophical genre-the system
which brings subject and object together again. This reconciliation has been the goal of
philosophical thought ever since." Richard Rorty, Philosophyand the Mirrorof Nature 113
(Princeton, N.J.: Princeton University Press, 1979).
17. Weber,Methodology
of the SocialSciences72; see id. at 78.
18. Id. at 81.
19. Weber, Roscherand Knies 122.
20. Id.; see id. at 194, 196.
21. Weber, Methodologyof the Social Sciences 78 (emphasis in original) (cited in note 11).
22. Id. at 84.

which are subjectivein a specific sense, namely, in that they present the
presuppositionsof our knowledge."23 That is, humans experience and un-
derstand the infinite reality only through certain categories or presupposi-
tions that humans, themselves, impose on that reality. Direct knowledge
of the infinite reality is impossible: All experience and understanding are
filtered through the categories or presuppositions. Weber, therefore, ex-
plicitly and consciously accepts the fundamental Kantian opposition-
rooted in Descartes-between the thinking subject and the objective exter-
nal world of the infinite reality. Moreover, Weber also explicitly and con-
sciously accepts Kant's so-called Copernican revolution: The objects of
the infinite reality do not directly shape human knowledge and experience,
rather humans impose form and structure on the objects of experience.24
Weber and Kant, however, sharply differ on one point. Kant argues
that the categories of experience and understanding are inherentto human
thought or reason. The categories, identified by Kant, are static: They do
not change during history or in different cultures.25 Weber, on the other
hand, identifies the categories or presuppositions as cultural; for this rea-
son, Weber is more neo-Kantian than Kantian.26 As Weber says, "we are
culturalbeings:"27"Order is brought into this chaos only on the condition
that in every case only a part of concrete reality is interesting and significant
to us, because only it is related to the cultural values with which we ap-
proach reality."28 Thus, for Weber, reality is necessarily experienced and
known only through our categories and presuppositions, but these catego-
ries and presuppositions are culturally constructed and thus culturally
contingent.29
Weber's commitment to a neo-Kantian metaphysics resonates
throughout his writing. Because Weber knowingly accepts the fundamen-
tal tension between a thinking subject and an external and infinite reality,
he can more easily identify and explore the many other characteristic di-
chotomies or tensions within Western society. For example, he writes:
"At the very origin of all legal history there thus prevailed ... an impor-
tant dualism, i.e., a dualism of the autonomously created law between
23. Id. at 110 (emphasis in original).

24. See Kant, Critique of Pure Reason, 3-5, 14-27, 43-66.
25. See id.; cf. D. W. Hamlyn, A History of WesternPhilosophy217-28 (New York: Vi-
king, 1987) (summarizing Kant's arguments).
26. See Jurgen Habermas, CommunicativeAction 154 (cited in note 4); Schluchter, The
Rise 13-15; F. Dallmayr & T. McCarthy, "Introduction" in F. Dallmayr & T. McCarthy,
ed., Understandingand Social Inquiry19 (Notre Dame, Ind.: University of Notre Dame Press,
1977). For a general discussion of neo-Kantianism, see Frederick Copleston, 7 A Historyof
Philosophy361-73 (Garden City, N.Y.: Image Books, 1965).
27. Weber, Methodologyof the Social Sciences 81 (emphasis in original).
28. Id. at 78 (emphasis in original).
29. Consequently, at least in the social sciences, pure objective knowledge is impossi-
ble: "In no case does [meaning] refer to objectively 'correct' meaning or one which is 'true'
in some metaphysical sense." Weber, Economyand Society 4.

groups, and the norms determinative of disputes among group mem-

bers."30 In other words, Weber identifies a dualism or dichotomy at the
core of legal history: the distinction between, on the one hand, subjec-
tively created laws that regulated activities between social groups or com-
munities, and, on the other hand, preexisting or natural norms, rooted in
tradition from "time out of mind," that regulated members within a
group.31
Weber's sensitivity to the tensions within Western society is the ani-
mating force behind his writings. Because of that sensitivity, he can recog-
nize and sensibly argue that capitalism simultaneously has distinct
advantages and dehumanizing disadvantages. Moreover, he can reason-
ably conclude that there is an "insoluble conflict between the formal and
substantive principles of justice."32 Weber's entire analysis of Western so-
ciety indeed is laced with these apparent ambivalences, which, despite the
arguments of Kronman and Trubek, do not reflect any inconsistencies on
Weber's part.33 To the contrary, they demonstrate his firm and consistent
commitment to his neo-Kantian metaphysics and to a critique of the struc-
tural tensions at the heart of Western liberal thought.
30. Id. at 696.

31. Id. at 1006; see id. at 1006-7. Weber's neo-Kantian metaphysics also serves as the
foundation for his use of "ideal types" to analyze social phenomena. Id. at 20-22. The ideal
type is a "mental construct for the scrutiny and systematic characterization of individual
concrete patterns which are significant in their uniqueness, such as Christianity, capitalism,
etc." Weber, Methodologyof the Social Sciences 100. Weber forms his ideal types by accentu-
ating particular points of view of phenomena, and then by using those points of view to
synthesize aspects of concrete phenomena into unified analytical constructs. Id at 90.
Thus, no ideal type can "be found empirically anywhere in reality. It is a utopia." Id. (em-
phasis in original). Weber's argument for a neo-Kantian notion of experience and knowl-
edge facilitates his creation of ideal types. If one accepts Weber's argument that all reality is
experienced and known through human categories or presuppositions or, in other words,
through human constructs, then one can easily imagine and accept the use of mental con-
structs as heuristic devices to aid in the analysis of social phenomena. Weber writes: "Who-
ever accepts the proposition that the knowledge of historical reality can or should be a
'presuppositionless' copy of 'objective' facts, will deny the value of the ideal-type." Id at 92.
Weber uses his ideal types to analyze and interpret historical phenomena. He is able to
identify and emphasize aspects of history-that is, to give meaning to historical social ac-
tions-because he focuses on where the historical phenomena merge with and diverge from
the ideal types. He writes: "Historical research faces the task of determining in each indi-
vidual case, the extent to which this ideal-construct approximates to or diverges from reality,
to what extent for example, the economic structure of a certain city is to be classified as a
'city-economy.' " Id. at 90. Moreover, the ideal types are common denominators that allow
him to compare different historical phenomena to each other: Historical events are inter-
preted and compared on a common ground. The ideal types, thus, facilitate Weber's analy-
ses of the subjective meanings of historical phenomena and the cause and consequences of
those phenomena. In particular, he constructs his ideal types to allow him to explore the
degrees and forms of rationality in various societies, with an eye toward explaining the devel-
opment and unique characteristics of modern Western society and capitalism.
32. Weber, Economyand Society 893 (cited in note 11).
33. See Kronman, Max Weber 185 (cited in note 2); Trubek, 20 Law & Soc'y Rev. at
575 (cited in note 1); supra text accompanying note 4.

B. Sociological Categories of Economic Action

Weber defines four categories of economic action: formally rational,
formally irrational, substantively rational, and substantively irrational.34
The degree of formally rational economic action increases as the calculabil-
ity of means and ends increases.35 The more that the means and ends of
economic activity are calculated-quantified and then compared-the
more that the activity is formally rational. To achieve the highest level of
formal rationality, which Weber calls purpose-rational social action,36 an
individual first must rationally choose an end or goal based on factors such
as opportunity costs-the costs of forgoing one end for another-and
marginal utility calculations-ranking ends on a scale of urgency. After
choosing an end or goal, the individual must rationally choose the most
efficient means for attaining that chosen end.37 Since the core of formal
rationality is calculability, the hallmark of formal irrationalityis incalculabil-
ity. An economic action is formally irrational to the extent that the indi-
vidual acts without calculating the advantages and disadvantages of
various means and ends.
Substantive rationality is based on the extent that an economic action
satisfies certain ultimate values or needs.38 The degree of substantive ra-
tionality thus does not correspond to the degree of calculation. Instead,
the degree of substantive rationality increases as one's activity increasingly
satisfies one's ultimate values or needs, derived from sources such as an
internal moral framework, religious faith, or political commitments. On
the other hand, an economic action is substantively irrationalto the degree
that these ultimate values or needs remain unfulfilled.
Appreciating Weber's fundamental distinction between formal and
substantive rationality of economic action clarifies much of his writing.
For example, as discussed earlier, the dominant purpose of Weber's work
is to explore the increasing rationalization of Western society as reflected
in an increasing ability to calculate one's means and ends. The distinction
34. Weber, Economyand Society 85-86.

35. See id.
36. The translation of the German word zweckrational,is open to dispute. Compare
Max Weber, Max Weber on Law in Economy and Society 1-2, trans. Rheinstein & E. Shils
(Cambridge: Harvard University Press, 1954) ("Weber on Law in Economy and Society")
(translates it as purpose-rational), with Weber, Economyand Society 24 (translates it as instru-
mentally rational). I use "purpose-rational" because it better captures the differentiation
from value-rational social action, which involves the rational selection of only a means as
opposed to the rational selection of means and goals that is entailed in purpose-rational
social action. See Weber, Economy and Society 26; Gero Lenhardt, "On Legal Authority,
Crisis of Legitimacy and Schooling in the Writings of Max Weber" 4-5 (unpublished manu-
script from the Institute for Research on Educational Finance and Government, R. Meyer
trans., Nov. 1980).
37. Weber, Economyand Society 26.
38. See id. at 85-86.

between formal and substantive rationality now reveals that when Weber
argues that Western society has become increasingly rational, he means
that the degree of formal rationalityhas increased. Moreover-and this is
one of Weber's most significant points-the degree of substantive rational-
ity is distinct from the degree of formal rationality. Thus, an increase in
formal rationality does not necessarily correspond with an increase in sub-
stantive rationality. Indeed, his analysis suggests that formal rationality is
at times inversely related to substantive rationality: In some circum-
stances, increasing formal rationality of economic action inevitablycauses
substantive irrationality! "Inevitability," in this context, does not mean
that every instance of formal rationality leads to substantive irrationality,
rather that pervasive formal rationality, in the end, necessarily causes
many instances of substantive irrationality.39
Weber illustrates this counterintuitive relationship between formal
and substantive rationality when he discusses the rise of capitalism. Ac-
cording to Weber, the degree of formally rational economic action is high-
est in capitalist economies; money and capital accounting allow capitalist
enterprises to attain the highest possible degree of calculability.40 In one
sense, then, human freedom is maximized: People are free insofar as they
can calculate the advantages and disadvantages of various economic op-
tions and then choose the most advantageous course. Weber emphasizes,
however, that despite creating a high degree of formal rationality, capital-
ism ultimately leads to substantive irrationality.41 Capitalist enterprises
39. For example, Weber writes that in some situations, substantive and formal rational-
ity "unavoidably collide" in the context of bureaucratic organizations. Id at 980.
40. Capitalism is largely characterized by the use of money and by capital accounting.
The use of money, first, allows individuals to eliminate in-kind exchanges-dollars can be
substituted for goods-and, second, creates the possibility for money accounting, which
dramatically increases the degree of formal rationality of economic action. See id at 80-87.
Money accounting is reflected in "budgetary management": "[t]he continual utilization and
procurement of goods, whether through production or exchange, by an economic unit for
purposes of its own consumptionor to procure other goods for consumption." Id. at 87. The
"budget" thus "states systematically in what way the needs expected for an accounting pe-
riod-needs for utilities or for means of procurement to obtain them-can be covered by
the anticipated income." Id.
Weber argues further that the use of money leads to the possibility of capital account-
ing. Capital accounting is unique because it is directed toward economic "profit making."
Id. at 91. Profit making is "activity which is oriented to opportunities for seeking new pow-
ers of control over goods on a single occasion, repeatedly, or continuously." Id. at 90. In
other words, market entrepreneurs, using capital accounting, constantly desire and strive for
profit, not merely for the procurement of goods for consumption. Id. at 92.
41. For example, according to Weber, capitalism necessarily requires both the expro-
priation of workers from the means of production and shop discipline. Id. at 137-38.
Weber argues that, in a capitalist business, power becomes increasingly centralized within a
bureaucratic organization in order to increase calculability. Workers consequently become
increasingly distanced from control of the means of production and the means of adminis-
tration, necessarily submitting to the authority relations within the bureaucratized work-
place. Workers cannot question the orders of superiors: They must immediately and simply
obey. The workers are treated as objects, not as subjects: Their substantive needs and

aim to earn profit, not to fulfill people's ultimate values or needs. Indeed,
the only needs that are satisfied are those of individuals who have the
resources (money) to purchase products.42 Consequently, the benefit of
capitalism is calculability and thus a high degree of formal rationality, but
the cost of capitalism is the dissatisfaction of ultimate human values and
needs and thus a high degree of substantive irrationality.
The attractive side of capitalism-its high degree of calculability-
ironically drives its repugnant side-the suppression of human values and
needs.43 While in one sense, capitalism appears to maximize human free-
dom, in another sense, it undermines freedom: Individuals are unable to
pursue and satisfy their ultimate values and needs. Formally rational tech-
niques that once were no more than the means to attain substantively
rational ends have bizarrely become ends in themselves.44 Moreover, the
entire system constantly regenerates itself. In The ProtestantEthic and the
Spirit of Capitalism, Weber writes:
The Puritan wanted to work in a calling; we are forced to do so.

For when asceticism was carried out of monastic cells into everyday
life, and began to dominate worldly morality, it did its part in build-
ing the tremendous cosmos of the modern economic order. This or-
der is now bound to the technical and economic conditions of
machine production which to-day determine the lives of all the indi-
viduals who are born into this mechanism, not only those directly
concerned with economic acquisition, with irresistible force. Perhaps
it will so determine them until the last ton of fossilized coal is burnt.
In Baxter's view the care for external goods should only lie on the
shoulders of the "saint like a light cloak, which can be thrown aside
desires remain unfulfilled (or at best, only arbitrarily fulfilled). See Weber, Selections 252
(cited in note 11).
Moreover, according to Weber, capitalism oppresses not only the workers but also the
capitalist owners themselves. Weber writes that capitalism "presupposes the battle of man
with man" (Weber, Economyand Society 93); the free market system of capitalism is based on
strict competition between autonomous subjects (id.) In the economic marketplace, one
must follow the maxims for success or suffer "economic destruction." Weber, Roscherand
Knies 193 (cited in note 15). Thus, even the owner of the means of production, if he or she
intends to survive, is forced constantly to calculate and to seek the highest profit possible:
The fulfillment of the owner's substantive needs or values must be suppressed beneath the
desire for profits. Cf. id. at 253 (in many instances, a "boss" can respond to a "worker's"
demand for higher wages by truthfully stating that an increase in wages will destroy the
business).
42. Weber argues that "effective demand," not actual demand or wants, determines
what goods are produced by capitalist enterprises. Weber, Economic and Society 108-9.
43. See Trubek, 20 Law & Soc'y Rev. at 593 (cited in note 1).
44. Weber writes: "All this [capitalism] is seen by socialism as the 'domination of peo-
ple by things,' in other words, the domination of the end (the supply of needs) by the
means." Weber, Selections253 (cited in note 11); see Lowith, Weber and Marx 47-48 (cited
in note 1).

at any moment." But fate decreed that the cloak should become an
iron cage.45
The drive in Western society toward the increasing formal rationality of

economic action that lies at the heart of capitalism is, according to Weber,
systematically pervasive-perhaps even inexorable. And consequently,
Weber argues, substantive irrationality is similarly inevitable: The capital-
ist calculation of means and ends largely ignores the ultimate values and
needs of all.
Weber's analysis of capitalism flows naturally from his commitment to
a neo-Kantian metaphysics. Weber's metaphysics focuses on the funda-
mental tension between the subject and the infinite reality and thus facili-
tates his recognition of the many other tensions or oppositions within
Western society and thought, including the tensions within capitalism.
Capitalism is premised on a commitment to human autonomy in the free
marketplace, yet capitalism appears to undermine human freedom. The
strength of capitalism is its power to maximize formally rational economic
action, yet a pervasive increase in formal rationality inevitably causes sub-
stantive irrationality. Weber does not, however, take an additional step to
conclude that capitalism is doomed because of these internal tensions.
That conclusion would be Marxian utopianism.46 To the contrary, Weber
maintains that the increasing formal rationality of Western society, of
which capitalism is merely one symptom, has created an "iron cage." His
conclusion is thus merely what flows from his analysis: that capitalism is
laced with ironic tensions that bond together to form an inescapable
prison.
45. Max Weber, The ProtestantEthic and the Spirit of Capitalism 181, trans. T. Parsons
(New York: Charles Scribner's Sons, 1958) ("Weber, The ProtestantEthic").
46. Weber disagrees with Marx's vision of the future of Western society. Although
Marx sees the workers as being inevitably ground under the wheels of capitalism-alienated
from the self, the society, and the means of production-he also envisions a historically
inevitable revolution-and thus the demise of capitalism. In the communist society that
Marx imagines will emerge after the revolution, each person will be free and self-fulfilled:
"[I]t [will] be possible for me to do one thing today and another tomorrow, to hunt in the
morning, fish in the afternoon, rear cattle in the evening, criticize after dinner, just as I have
a mind, without ever becoming hunter, fisherman, shepherd or critic." Marx, Reader 160
(cited in note 11).
Weber attacked this Marxian vision of the future as romantic utopian drivel. See
Weber, Economy and Society 1401-2 (cited in note 11); Weber, Selections 256-59 (cited in
note 11); see also Lowith, Weber and Marx 47-48 (Weber rejected Marx as utopian).
Weber's criticism of Marx as succumbing to the allure of utopianism is especially biting-
and tinged with irony-because Marx, himself, had railed against several of his contempo-
raries for succumbing to the same allure. See, e.g., Marx, Reader 497-99.

I. WEBER'S THEORY OF LAW

A. The Categories of Legal Thought
Weber's description of the categories of legal thought is confusing and
uncharacteristically imprecise.47 As stated previously, however, his catego-
ries of legal thought parallel in name the categories of economic action.48
The four categories of legal thought, as well as economic action, are formal
rationality, formal irrationality, substantive rationality, and substantive ir-
rationality. This section argues that Weber reasonably intends the legal
categories to parallel the economic categories not only in name but also in
content. If true, his lucid description of the categories of economic action
clarifies his confusing and unfinished description of the categories of legal
thought.49
Weber writes that law is formally rational to the extent that "only
unambiguous general characteristics of the facts of the case are taken into
account."50 Weber appears to be emphasizing clarity-lack of ambiguity-
and generality as being essential to a formally rational legal system. When
he focuses on economic action, on the other hand, he emphasizes calcula-
bility, stating that the degree of formal rationality of economic action in-
creases as the calculability of means and ends increases.51 His emphases on
clarity and generality in legal thought and on calculability in economic
action are not, however, opposed. To the contrary, in the realm of legal
thought, Weber intends to suggest that the calculability of judicial deci-
sions increases as the clarity and generality of legal rules increase. He be-
lieves that as the generality of legal rules increases, the number of cases
covered by those rules increases, and so long as the rules are clear, their
application in the cases is also theoretically clear and predictable. Conse-
quently, the calculability of judicial results corresponds directly with the
clarity and generality of legal rules. In most instances, the formal rational-
ity of legal thought therefore increases as the degree of calculability in-
creases. This interpretation of Weber's category of formally rational legal
thought not only parallels his category of formally rational economic ac-
tion but also parallels his general description of the increasing rationaliza-
47. See Weber, Economyand Society 656-57.

48. Compare id. at 85-86 (categories of economic action) with id. at 656-57 (categories
of legal thought).
49. See M. Rheinstein, "Preface," in Weberon Law in Economyand Societyat xv (cited in
note 36); Rheinstein, "Introduction" in id. at xlviii; Trubek, 37 Stan. L. Rev. at 919-20 (cited
in note 2).
Other attempts to decipher Weber's categories of legal thought include Bendix, Weber
398-400 (cited in note 11); Kronman, Max Weber 72-95 (cited in note 2); Levine, The Flight
150-62, and Schluchter, The Rise 87-89 (both cited in note 2); Trubek, 1972 Wis. L. Rev. at
727-31 (cited in note 3).
51. See supra text accompanying notes 34-35.

tion of Western society-increasing rationalization generally means

increasing calculability. In the realm of legal thought, the correspondence
between formal rationality and calculability means that a formally rational
legal system theoretically has largely noncontroversial judicial results.52
Weber distinguishes two different types of formally rational legal
thought. With regard to the first type-called extrinsically formal rational
legal thought-he writes that "the legally relevant characteristics are of a
tangible nature, i.e., that they are perceptible as sense data."53 Thus, the
results in cases are clearly determined by the existence or nonexistence of
particular tangible facts. For example, a contract is not enforceable if it is
not in writing. A will is not enforceable if it is not witnessed by at least
two people. With regard to the second type of formally rational legal
thought-called logically formal rational legal thought-Weber writes that
it "is found where the legally relevant characteristics of the facts are dis-
closed through the logical analysis of meaning and where, accordingly, def-
initely fixed legal concepts in the form of highly abstract rules are
formulated and applied."54 In other words, judicial results are highly cal-
culable because the legal system consists of conceptually ordered, logically
consistent, and abstract rules. As Weber states, a formally rational system
of the second type allows "the collection and rationalization by logical
means of all the several rules recognized as legally valid into an internally
consistent complex of abstract legal propositions."55
52. Purely as a matter of logic, calculability could increase without increasing the de-
gree of formally rational legal thought. That is, Weber suggests that formal rational legal
thought increases if and only if the clarity and generality of legal rules increase. Moreover,
calculability increases if clarity and generality increase. But Weber does not logically elimi-
nate the possibility that calculability might increase, not because of an increase in clarity and
generality, but due to some other causal factor. In other words, Weber does not expressly
state that calculability increases if and only if clarity and generality increase. This logical
point meshes with Weber's statement that the bourgeoisie want a calculable law, but not
necessarily logically formal rational legal thought. Weber, Economyand Society 855.
On the other hand, this logical possibility is contrary to Weber's analysis of economic
action, and Weber does not explain why formal rationality in economic action should be
distinguished from formal rationality in legal thought. More important, Weber's discussion
of legal training in England emphasizes that "empirical legal training," see infra notes 97-98
and accompanying text, does not create formally rational legal thought because it creates law
that is easily manipulated-"turned around and around, interpreted, and stretched in order
to adapt it to varying needs." Weber, Economyand Society 787. Such manipulable law would
not be calculable. Weber therefore suggests that manipulability is inversely proportional to
formal rationality, and consequently, calculability is directly proportional to formal rational-
ity. Again, however, purely as a matter of logic, Weber expressly states only that if there is
no calculability-that is, there is manipulability-then there is no formal rationality of legal
thought. In other words, whenever there is formally rational legal thought, there is calcula-
bility, but not vice versa-an increase in calculability does not logically or necessarily entail
an increase in formal rationality. Nonetheless, in his essay, "Science as a Vocation," Weber
unequivocally states that increasing rationality generally means increasing calculability. See
supra note 10 and accompanying text.
54. Id. at 657.
55. Id.

Legal thought, according to Weber, is formally irrational "when one

applies in lawmaking or lawfinding means which cannot be controlled by
the intellect, for instance when recourse is had to oracles or substitutes
therefor."56 When lawmaking and lawfinding cannot be controlled by the
intellect, when recourse is had to oracles or similar irrational sources, then
the law is unpredictable. Weber, again paralleling the categories of eco-
nomic action, is suggesting that law is formally irrational when it is unpre-
dictable, when judicial decisions are incalculable.
Legal thought is substantively rational if "the decision of legal
problems is influenced by norms different from those obtained through
logical generalization of abstract interpretations of meaning. The norms
to which substantive rationality accords predominance include ethical im-
peratives, utilitarian and other expediential rules, and political maxims."57
This description of substantively rational legal thought is nearly identical
to Weber's description of substantively rational economic action.58 Thus,
for both legal thought and economic action, the degree of substantive ra-
tionality increases as one's activity increasingly satisfies one's ultimate val-
ues or needs, derived from sources such as an internal moral framework,
religious faith, or political commitments-but not derived from and in-
deed unrelated to the rules and principles of the legal system itself.
Finally, legal thought is substantively irrational "to the extent that
decision is influenced by concrete factors of the particular case as evalu-
ated upon an ethical, emotional, or political basis rather than by general
norms."59 Weber here appears to be distinguishing between judicial deci-
sions based on general norms or ultimate values, on the one hand, and
decisions based on any other factors (including legal rules), on the other.
In other words, judicial decision making-like economic action-is sub-
stantively irrational when it does not satisfy ultimate values or needs but is
instead influenced by other factors, which are often arbitrary and unique
to the particular case.60
56. Id. at 656.

57. Id. at 657.
60. See supra text accompanying notes 38-39. My analysis of Weber's categories of
legal thought finds them to be simpler-but not less sophisticated-than many other analy-
ses find the categories. See, e.g., Kronman, Max Weber 72-95; Levine, The Flight 150-62;
Schluchter, The Rise 87-89 (all cited in note 2). In a sense, according to my interpretation,
Weber's categories are sophisticated, not because of their intricacies, but because of their
elegance. Schluchter, for example, argues that Weber opposes formal law to substantive law,
not just formally rational law to substantively rational law. That is, according to Schluchter,
Weber talks about law being more formal without it necessarily being more formally ra-
tional. See Schluchter, The Rise 87-89. Levine, on the other hand, complicates Weber's
categories by arguing that Weber implicitly distinguishes objective rationality from subjec-
tive rationality. See Levine, The Flight 150-62.

B. Increasing Formal Rationality of Legal Thought

Weber uses the four categories of legal thought to analyze the devel-
opment of the law in Western society, just as he had earlier used the four
categories of economic action to analyze the economic development of
capitalism in Western society. And just as he had earlier demonstrated
that Western society has been marked by an ever increasing degree of for-
mally rational economic action, he now demonstrates an ever increasing
degree of formally rational legal thought-in particular, logically formal
rational legal thought.61
One example of this rise of formally rational law is, according to
Weber, in the field of contracts. He argues that Western society has
moved from "status contracts"62to "purposive contracts."63 Pursuant to a
status contract, a person can "become somebody's child, father, wife,
brother, master, slave, kin, comrade-in-arms, protector, client, follower,
vassal, subject, friend, or, quite generally, comrade."64 Thus, a status con-
tract allows a person actually to become someone else, to change signifi-
cantly his or her status or role in society.65 Weber emphasizes, moreover,
that the foundation for most status contracts is a reliance on magical or
divine powers, which support the new "fraternal" relationship and often
threaten punishment in case of "antifraternal conduct."66
Purposive contracts, on the other hand, "neither [affect] the status of
the parties nor [give] rise to new qualities of comradeship but [aim] solely,
as, for instance, barter, at some specific (especially economic) performance
or result."67 The prototypical purposive contract is the "money con-
tract."68 Initially involving only immediate exchanges, these contracts
eventually developed "promissory elements oriented towards the future."69
Money contracts, according to Weber, contributed to the secularization of
the law, undermining a reliance on magical foundations for legal transac-
tions.70 Since, as stated earlier, calculability increases as the world be-
comes secularized or disenchanted,71 the transition from status contracts
to purposive contracts corresponds with an increase in formally rational
legal thought.
The creation and growth of the purposive contract, in conjunction

63. Id.
64. Id. Weber also calls these contracts "fraternization contracts." Id.
65. Weber adds that a status contract "meant that the person would 'become' some-
thing different in quality (or status) from the quality he possessed before." Id.
66. Id.
67. Id. at 673.
68. Id. at 674.
69. Id.
70. See id.
71. See supra text accompanying note 10.

with the development of a market exchange economy, leads to the modern

concept of freedom of contract. The high degree of logically formal ratio-
nality in modern contract law means, according to Weber, that individuals
can accurately predict or calculate the likely outcomes of various possible
arrangements, and then intentionally choose the one arrangement with
the best likely outcome.72 Modern contract law, in other words, has in-
creased human freedom. Generalizing beyond contract law, Weber states:
"Juridical formalism enables the legal system to operate like a technically
rational machine. Thus it guarantees to individuals and groups within the
system a relative maximum of freedom, and greatly increases for them the
possibility of predicting the legal consequences of their actions."73 Thus,
according to Weber, the increase of logically formal rational legal thought
has, at least in one sense, maximized human freedom. On this point, he
agrees with the many Enlightenment and post-Enlightenment thinkers
who have equated reason with human freedom.74
The parallel between the developments of law and economy in West-
ern society-namely, the ever increasing degree of formal rationality of
both legal thought and economic action-raises two significant questions
for Weber. First, what is the causal relationship between the law and the
economy? Second, does the increasing degree of formal rationality in legal
thought correspond with an increasing degree of substantive irrationality,
similar to the counterintuitive relationship in the economic sphere?
1. Causal Relationship of Law and Economy
Weber is interested in two aspects of the causal relationship of law

and economy: How does law influence the development of capitalism, and
how does capitalism influence the development of formally rational law?75
Weber, rejecting Marx's reductionist approach to history, refuses to reduce
either legal or economic developments to simple monocausal relation-
ships.76 Instead, consistent with his neo-Kantian belief in an infinite real-
72. See Weber,Economy andSociety729 (citedin note 11).

73. Id.at 811.
74. See Levine,TheFlight151(citedin note 2).
75. Earlyin "TheSociologyof Law,"Webersketchesthe contoursof his responsesto
theseissues.See Weber,Economy andSociety654-55.
76. Accordingto Weber,Marxreducesthe historical development of Westernsociety
solelyto the interplayof economicforces.Law,religion,andotheraspectsof societyare,
accordingto Marx,merelypartof a superstructure: The foundationor baseof societyis
economic.The materialconditionsof productionshapelegaland religiousrelations,but
lawandreligiondo not significantly shapethe economy.See Marx,Reader 4-5, 157(cited
in note 11). Webervehemently withthishistorical
disagrees materialism, writing,"Theso-
called'materialisticconceptionof history'... asa formulaforthe casual[sic]explanationof
historicalrealityis to be rejectedmostemphatically." Weber,Methodology of theSocialSci-
ences68 (citedin note 11);seeWeber,Economy andSociety
333-37. Thisbasicdisagreement
betweenWeberand Marxunderscores one of Weber'spurposes.In workssuchas The

ity, Weber argues that a complex web of causal factors contributes to the
increasing formal rationality of legal thought and economic action.77 He
thus suggests, for example, that to understand legal developments, one
must recognize the influences of politics, economics, and law itself.
Weber's identification of the many factors that contributed to the
decline of slavery as a legal institution starkly illustrates the causal com-
plexity of legal developments. He focuses on broad economic trends, such
as the development of capitalist wage labor, as well as more localized eco-
nomic developments, such as the exhaustion of free land in the American
South. He focuses on the various roles that religion has played in different
societies, suggesting that certain religious beliefs had contributed, but were
not necessary, to the fall of slavery. He focuses, too, on how political com-
mitments contributed to the decline of slavery. For example, in the
United States, the political divergence of southern planters and northern
manufacturers accelerated the coming of the Civil War and the end of
American slavery. And finally, he focuses on how certain legal develop-
ments-namely, a commitment to natural law-strongly contributed to
the decline of the legal institution of slavery.78 Indeed, Weber argues that
a legal system reflects upon itself and thus influences its own development:
"[T]he specific type of techniques used in a legal system, or, in other
words, its modes of thought are of far greater significance for the likeli-
hood that a certain legal institution will be invented [or will decline] than
is ordinarily believed."79
Focusing on the general relationship between law and economy,
Weber states that law has a "strong influence"8 on economic develop-
ment. He adds, "Law can... function in such a manner that, in sociologi-
cal terms, the prevailing norms controlling the operation of the coercive
apparatus [of the state] have such a structure as to induce, in their turn,
the emergence of certain economic relations."s8 Certain legal develop-
ments, in other words, directly cause certain economic developments; in
particular, the development of capitalism "fare[s] best under a rigorously
formal system of adjudication."82 At times, Weber pushes this relation-
ship even further, arguing that formally rational legal thought is a causal
ProtestantEthic and the Spiritof Capitalism (cited in note 45), and "The Sociology of Law," in
Economy and Society (641-900), Weber painstakingly describes how factors such as religion
and law have influenced the development of Western society and, more particularly, have
influenced the development of capitalism within Western society.
78. See Weber, Economyand Society 692-93.
79. Id. at 687; accord id. at 694-95. In more current terminology, Weber is suggesting
that the legal system is relatively autonomous. See Robert W. Gordon, "New Developments
in Legal Theory," in D. Kairys, ed., The Politics of Law 286 (New York: Pantheon Books,
1982).
81. Id. at 667.
82. Id. at 814.

prerequisite for the development of capitalism.83

But Weber retreats from this strong stance, suggesting instead that
formally rational law contributes to the development of capitalism but is
not a prerequisite. This retreat is most evident when Weber discusses the
development of capitalism in England,84whose common law system is not
as formally rational as the civil law systems of continental Europe.85
Weber writes: "[M]odern capitalism prospers equally and manifests essen-
tially identical economic traits under legal systems containing rules and
institutions which considerably differ from each other."86 Weber appar-
ently concludes, therefore, that the highest degree of formally rational legal
thought contributes strongly to capitalism but is not a prerequisite to its
development.
Turning to the effect of the economy on the law, Weber states that
economic factors have only an "indirect influence"87 on legal develop-
ments. What does Weber mean by an "indirect influence"? He apparently
intends to suggest two related points, one general and one more specific.
The general point is that capitalism can contribute to the development of
formally rational legal thought, but capitalism alone does not create a for-
mally rational legal system. As Weber states, "[elconomic conditions have
. . . everywhere played an important role."88 Indeed, he says that "eco-
nomic interests are among the strongest factors influencing the creation of
law."89 In his discussion of contract law, for instance, Weber concludes
that "[t]he increased importance of the private law contract in general is
. .. the legal reflex of the market orientation of our society."90
Despite linking the development of law to capitalism in this manner,
83. Weber writes: "For the modern form of capitalism, based on the rational enter-
prise, requires not only calculable technical means of production, but also a calculable legal
system and administration in accordance with formal rules." Weber, Selections339 (cited in
note 11). For example, Weber argues that "[als long as religious courts had jurisdiction over
land cases, capitalistic exploitation of the land was thus impossible." Weber, Economyand
Society 823 (cited in note 11).
84. See Weber, Economyand Society 891-92, 976-77.
85. See id. at 814, 890-92.
86. Id. at 890.
87. Id. at 655.
88. Id. at 883.
89. Id. at 334.
90. Id. at 672. Continuing his discussion of contract law, Weber argues that "[i]n an
economy where self-sufficiency prevails and exchange is lacking, [law] will mainly define and
delimit a person's noneconomic relations and privileges with regard to other persons in
accordance, not with economic considerations, but with the person's origin, education, or
social status." Id. at 668. But Weber continues, "[i]n an increasingly expanding [exchange]
market, those who have market interests constitute the most important group. Their influ-
ence predominates in determining which legal transactions the law should regulate by means
of power-granting norms." Id. at 669. Weber expands beyond contract law when he adds
that "the bourgeois strata have generally tended to be intensely interested in a rational
procedural system and therefore in a systematized, unambiguous, and specialized formal law
which eliminates both obsolete traditions and arbitrariness and in which rights can have
their source exclusively in general objective norms." Id. at 814; see id. at 847.

Weber insists that capitalist interests do not by themselves create formally

rational law.91 Economic institutions merely provide the proper environ-
ment for the growth of certain legal institutions, but growth is impossible
without more-without the careful prodding from other social, political,
religious, and legal institutions. He writes:
Economic situations do not automatically give birth to new legal

forms; they merely provide the opportunity for the actual spread of a
legal technique if it is invented. Many of our specifically capitalistic
legal institutions are of medieval rather than Roman origin, although
Roman law was much more rationalized in a logical sense than medi-
eval law.92
Because of this weak or indirect link between the economy and the law,
the legal system can, under certain conditions, remain unchanged during
even a radical transformation of the economy.93 Weber therefore con-
cludes that "capitalism has not been a decisive factor in the promotion of
[formally rational legal thought]."94
In elaborating this weak link between the economy and law, Weber
more specifically identifies how economic developments only "indirectly
influence" legal developments. He, in essence, identifies a causal chain.95
The development of capitalism generates a need for persons with special-
ized knowledge of the law: professional attorneys. Only professional at-
torneys can provide the accurate predictions of legal results that capitalists
need for their economic calculations. Professional attorneys, in turn, can
cause the increasing formal rationalization of the law. In particular, the
method of training attorneys most strongly affects the degree of formal
rationality within a legal system: "The prevailing type of legal education,
i.e., the mode of training of the practitioners of the law, has been more
important than any other factor."96 Thus, capitalism does not directly
cause any increase in the formal rationality of legal thought. Capitalism
instead directly causes the development of the legal profession, which
might then directly cause an increase in the formal rationality of the legal
system. Thus, capitalism only "indirectly influences" the development of
the legal system.
Since the method of training attorneys is the most important direct
influence on the degree of formal rationality of legal thought, Weber de-
votes considerable space to distinguishing different methods of training.
91. See Weber, Selections339 (cited in note 11).

93. Weber writes: The legal system can "remain unchanged while economic relations
are undergoing a radical transformation." Id. at 333-34.
94. Id. at 892; see id. at 720, 883; Weber, Selections, 339.
95. See Weber, Economyand Society 775-76 (cited in note 11).
96. Id. at 776.

Weber's primary distinction is between "empirical legal training,"97on the

one hand, and "academic legal training,"98 on the other. Empirical legal
training is the teaching of law as a craft: "[A]pprentices learn from practi-
tioners more or less in the course of actual legal practice."99 This method
of training is typified, according to Weber, by the long-standing practices
of the English Inns of Court and their guild-like monopolization of the
legal profession.100 Most important, Weber argues that empirical training
of this sort impedes the development of a formally rational legal system.101
Academic legal training, on the other hand, treats law as a science:
Law teachers and students shape the law into a rational and ordered sys-
tem to facilitate their studies and education.102 Weber writes:
The legal concepts produced by academic law-teaching bear the

character of abstract norms, which, at least in principle, are formed
and distinguished from one another by a rigorously formal and ra-
tional logical interpretation of meaning. Their rational, systematic
character as well as their relatively small degree of concreteness of
content easily result in a far-reaching emancipation of legal thinking
from the everyday needs of the public. The force of the purely logical
legal doctrines let loose, and a legal practice dominated by it, can con-
siderably reduce the role played by considerations of practical needs
in the formation of the law.103
In short, academic legal training strongly and directly pushes legal thought
to its highest degree of logically formal rationality.
In summary, Weber identifies several different components of the
causal relationship between law and economy. He argues that the law
strongly and directly influences the development of the economy. Thus, a
high degree of formally rational legal thought contributes heavily to the
development of capitalism, but, he adds cautiously, it is not a prerequisite
to capitalism. On the other hand, he maintains that the economy only
indirectly influences the development of the law. Capitalism thus can con-
tribute to the development of a formally rational legal system, but capital-
ism alone does not result in such a system. More specifically, capitalism
97. Id.at 785.

98. Id. at 789;see alsoid. at 792-802(legaltrainingby honoratiores,
whichoccurred
duringthe medievaltimesin northernEurope).
99. Id. at 784.
100. Id.at 785-86. On the trainingof barristers
andsolicitorsin England,see gener-
ally B. Abel-Smith& R. Stevens, Lawyersand the Courts:A Sociological
Studyof theEnglish
1750-1965(Cambridge:
LegalSystem Harvard Press,1967);P. Smith& S. Bailey,
University
The Moder EnglishLegalSystem92-131 (London: Sweet & Maxwell, 1984).
101. Weber,Economyand Society787-88.
102. See id. at 785.
103. Id. at 789. Weberadds: "Thislogicalsystematization of the lawhas beenthe
consequence of the intrinsicintellectual
needsof the legaltheoristsandtheirdisciples,the
doctors,i.e., of a typicalaristocracyof legalliterati."Id.at 855.

creates a need for professional attorneys, and the method of training those
attorneys is the strongest and most direct influence on the degree of for-
mally rational legal thought. Weber's most important point, however, may
be his rejection of simple monocausal relationships. Remaining true to his
neo-Kantian commitment to an infinite reality and an infinite causal web,
he insists that one factor alone rarely causes the development of either
formally rational law or capitalism. Instead, a complex web of factors con-
tributes to most, if not all, legal and economic developments.
2. Tension Between Formal and Substantive Rationality
In his discussion of economic development, Weber argues that West-

ern society is marked by an increase of formally rational economic action.
He then observes, counterintuitively, that the increasing formal rationality
of economic action ultimately creates an increasing degree of substantive
irrationality.104When Weber discusses legal thought in Western society, he
argues that the formal rationality of legal thought has also consistently
increased, paralleling the development of economic action. He conse-
quently asks whether the parallel between legal thought and economic ac-
tion continues: Does the increase in formally rational legal thought also
cause a parallel increase in substantively irrational law? Weber answers
with a resounding "Yes!"
As discussed earlier, Weber agrees with many Enlightenment and
post-Enlightenment thinkers when he argues that the high degree of calcu-
lability in a formally rational legal system increases human freedom.'05 Ac-
cording to Weber, humans can supposedly control their own lives because
they can manipulate the legal system like a "technically rational
machine."'06 Nevertheless, Weber insists again and again that "formal jus-
tice, due to its necessarily abstract character, infringes upon the ideals of
substantive justice."'07 Indeed, he states that formal and substantive ra-
tionality of legal thought are opposed in an "insoluble conflict."'08
In terms of human freedom, this conflict between formal and substan-
tive rationality means that while formal rationality might increase freedom,
it does so in only one sense. In another sense, it actually decreases human
freedom. At this point, then, Weber departs from most Enlightenment
and post-Enlightenment thinkers who equate reason-formal rationality-
with freedom.109 He writes:
104. Seesupratext accompanying notes40-45.

105. Seesupratext accompanying note 74.
106. Weber,Economy andSociety811.
107. Id.at 813;accordid. at 811, 813, 893,976;see Bendix,Weber399 (citedin note
11).
108. Weber,Economy andSociety893 (citedin note 11).
109. Seesupratext accompanying note 74.

Formal justice guarantees the maximum freedom for the interested

parties to represent their formal legal interests. But because of the
unequal distribution of economic power, which the system of formal
justice legalizes, this very freedom must time and again produce conse-
quences which are contrary to the substantive postulates of religious
ethics or of political expediency. ... It is precisely [its] abstract char-
acter which constitutes the decisive merit of formal justice to those
who wield the economic power at any given time and who are there-
fore interested in its unhampered operation, but also to those who on
ideological grounds attempt to break down authoritarian control or
to restrain irrational mass emotions for the purpose of opening up
individual opportunities and liberating capacities. To all these groups
nonformal justice simply represents the likelihood of absolute arbi-
trariness and subjectivistic instability.... [But formal] justice and the
"freedom" which it guarantees are indeed rejected by all groups ideo-
logically interested in substantive justice.110
Formally rational legal thought, in other words, theoretically increases

freedom because it allows individuals to autonomously decide their own
fates. Only the high degrees of abstractness and calculability inherent in
formally rational legal thought create the framework necessary for choos-
ing among various options with predictable results. Any other system ap-
pears arbitrary and subjective. Yet, formal rationality breeds substantive
irrationality because it precludes the consideration of ultimate values and
needs in the adjudication of disputes. Humans are trapped within the iron
mesh of formality, unable to pursue their true goals. Moreover, formally
rational law obscures the significant effects of economic power. The for-
mal freedom to choose among various options is merely a cruel farce for
those who, for instance, must choose between oppressive employment and
starvation."' Economically disadvantaged individuals are thus, according
to Weber, much more concerned with substantive rationality-the satis-
faction of their ultimate values and needs-than with the abstract calcula-
bility of a formally rational legal system.
Weber illustrates the tension between formal and substantive ratio-
nality in the field of contracts. As discussed earlier, he argues that one of
the primary aims and results of modern contract law is to increase formal
rationality and thus to increase human freedom. But he simultaneously
argues that modern contract law has not "brought about an actual in-
crease of the individual's freedom to shape the conditions of his own
life."112 To the contrary, according to Weber, the formal rationality of
contract law, together with the unequal distribution of economic re-
sources-which contract law itself helps to protect-enables some individ-

111. See id. at 729-31.
112. Id. at 729.

uals to exercise power over others.113 Wealthy individuals coerce poorer

ones into contractual agreements that disproportionately favor the wealth-
ier and fail to satisfy the needs and values of the poorer. And all the while
the abstract and depersonalized formal rules of contract law assure all that
they receive equal judgment under the rule of law."14In modern contract
law, concepts such as economic duress, which can render an agreement
unenforceable, are based on substantive rationality, not formal rationality,
and thus are considered exceptional, are few in number, and are rarely
applied."15 Pervasive formal rationality in contract law inevitably results in
substantive irrationality; formal freedom ultimately prevents the satisfac-
tion of the substantive values and needs of many individuals.
Weber explicitly ties together his explorations of formal rationality in
capitalism and in legal thought when he discusses bureaucratization.
Whether in private enterprise or in government, the bureaucracy is, ac-
cording to Weber, the most rational and efficient social organization.l16
No other organizational structure so fully promotes the identification and
implementation of the most formally rational means for attaining any
identified end. The bureaucracy is so efficient because it facilitates quanti-
fication and calculation and is thus perfectly suited for the exercise of for-
mal rationality, whether in economic action or in legal thought.117
Characterized by the technical expert who applies calculable rules in a
cold, dispassionate disregard for persons as living, feeling subjects,118the
bureaucracy fabricates a "shell of bondage,"119rendering individuals pow-
erless to pursue their own ultimate values and needs.
Moreover, the bureaucracy is intimately linked with the formally ra-
tional rule of law. Not only is the bureaucracy the organization that best
facilitates the administration of a formally rational legal system, but, at
least in the public sphere, the bureaucracy is itself grounded on the for-
mally rational rule of law. Each bureaucratic official "has a clearly defined
sphere of competence in the legal sense:"120 Legal rules delineate fixed
jurisdictional areas of power for each bureaucratic official. No one per-
forms any duty or owes any obedience to another because of personal sta-
tus or charisma: Instead, duty and obedience flow only from legal rules.12
113. See id. at 729-30.

114. See id. at 699, 729-31.
115. See id. at 886. See generally E. Allan Farnsworth, Contracts 211-323 (Boston:
Little, Brown & Co., 1982).
117. See id. at 223.
118. Id. at 975.
119. Id. at 1402.
120. Id. at 220.
121. Weber states: "[O]bedience [in the bureaucracy] is owed to the legally established
impersonal order. It extends to the persons exercising the authority of office under it by
virtue of the formal legality of their commands and only within the scope of authority of the
office." Id. at 215-16.

Finally, the tension between formally and substantively rational legal

thought is manifest in the operation of the bureaucracy. Weber writes:
"Equality before the law" and the demand for legal guarantees against
arbitrariness demand a formal and rational "objectivity" of adminis-
tration, as opposed to the personal discretion flowing from the
"grace" of the old patrimonial domination. If, however, an
"ethos"-not to speak of other impulses-takes hold of the masses
on some individual question, its postulates of substantivejustice, ori-
ented toward some concrete instance and person, will unavoidably
collide with the formalism and the rule-bound and cool "matter-of-
factness" of bureaucratic administration.122
The bureaucracy thus facilitates the administration of formally rational

legal thought but inevitably interferes with the satisfaction of ultimate val-
ues and needs.
Hence, as in his discussion of economic action, Weber's discussion of
legal thought in Western society focuses on a counterintuitive correspon-
dence between formal rationality and substantive irrationality. This focus
again flows naturally from his neo-Kantian metaphysics. His knowing
commitment to the fundamental tension between a thinking subject and
an infinite reality facilitates his recognition of the many tensions within
Western legal systems. The calculability of formally rational law repels the
substantively rational satisfaction of ultimate values and needs. Moreover,
again as with economic action, Weber insists that the trend toward in-
creasing formal rationality of legal thought is so systematically pervasive
that it is perhaps inexorable: "Inevitably the notion must expand that the
law is a rational technical apparatus."'23 The "iron cage," according to
Weber, cannot be escaped.124 As Western society marches in time toward
greater and greater degrees of formally rational law, it simultaneously and
inexorably trudges into the muck of substantive irrationality.
IIL WEBER AND CONSlrTUJTIONAL LAW
Weber's theory of law can illuminate many current problems of law

and society. In particular, this section illustrates the significance of
Weber's theory in the context of modern constitutional law. If Weber's
vision of historical development is correct, then the United States should
122. Id. at 979-80 (emphasis in original).

123. Id. at 895.
124. See supra text accompanying notes 45-46. Thomas McCarthy writes: "Weber
clearly regarded [the increasing rationalization and bureaucratization of western society] as
irreversible." Thomas McCarthy, The Critical Theory of JurgenHabermas 19 (Cambridge:
MIT Press, 1978).

have moved toward a more formally rational legal system in the late 19th
century as law schools became the predominant arena of legal training.
The development of Langdellian formalism in the 19th century125and,
more recently, the movement toward process-oriented theories and adjudi-
cation, especially in constitutional law,'26 support this Weberian view. A
review of modern constitutional law reveals a strong emphasis on formal
rationality through the protection of fair processes. A Weberian critique,
however, uncovers irreconcilable tensions between process and substance:
An inevitable consequence of process-oriented constitutional law is sub-
stantive irrationality, the suppression of ultimate values and needs.
A. Historical Development of Process-based Legal

Theories
With regard to legal thought in the United States, Weber observes:
In [the United States], varying significance is given to a decided case

not only, as happens everywhere, in accordance with the hierarchal
position of the court by which it was decided but also in accordance
with the very personal authority of an individual judge. This is true
for the entire common-law sphere, as illustrated, for instance, by the
prestige of Lord Mansfield. But in the American view, the judgment
is the very personal creation of the concrete individual judge, to
whom one is accustomed to refer by name, in contrast to the imper-
sonal "District Court" of Continental-European officialese.'27
Weber does not specify which time period of American legal thought he is
describing. To some extent, his description applies at least partially to all
periods. Nonetheless, his emphases on the personal authority and creativ-
ity of the American judge and the prestige of Lord Mansfield-together
with the knowledge that Weber wrote in the early 20th century-suggest
that Weber is describing the American "Grand Style" period.128
The Grand Style is a method of writing judicial opinions that
predominated from the early 19th century to approximately 1870. Judges
of that period showed little concern for logical consistency with prece-
dents, but a strong concern for the practical consequences and fairness of
decisions. Grand Style jurists decided cases according to justice, not ac-
cording to preexisting legal doctrine; judges made law if necessary to

128. See generally Grant Gilmore, The Ages of American Law 19-40 (New Haven,
Conn.: Yale University Press, 1977) ("Gilmore, Ages"); Karl Llewellyn, The Common Law
Tradition 36-37, 63-72 (Boston: Little, Brown & Co., 1960).

achieve justice. Often, the opinion in a Grand Style case reads as if it were
a highly personalized statement of the judge. The strength and conclusive-
ness of an opinion was a function, not of precedent, but of the subjective
force of will of the individual judge.129 In Weber's terminology, the Grand
Style period focused on substantive rationality, at the expense of formal
rationality.
In 1870, Christopher Columbus Langdell was appointed as the first
dean of Harvard Law School. Langdell revolutionized the training of at-
torneys in the United States by introducing both the case method of
teaching and, more important, the academic attorney dedicated to scholar-
ship and teaching in a university. Moreover, Langdell also introduced a
philosophy of law, often called classical orthodoxy, which quickly came to
dominate American jurisprudence.'30 Since Weber argues that university
training of lawyers, with the concomitant academic attorney, is the strong-
est and most direct cause of logically formal rational legal thought,131 it is
unsurprising that classical orthodoxy represents a strong swing toward for-
mal rationality, moving away from the substantive rationality of the Grand
Style period.
Indeed, Weber's description of the German Pandectists' approach to
law-which he considers to be the apotheosis of logically formal rational
legal thought-is strikingly similar to most descriptions of classical ortho-
doxy.132 Weber writes:
129. See, e.g., Martin v. Waddell, 41 U.S. (16 Pet.) 367 (1842); Worcester v. Georgia,
31 U.S. (6 Pet.) 515 (1832). In Worcester,Chief Justice Marshall's opinion reads more like a
historical tale than a current legal opinion. See, e.g., Worcester v. Georgia, 31 U.S. 542-43;
see also "Carriers," 1 Am. L Reg. 65, 66-67 (1852) (celebrating the Grand Style).
130. See Gilmore, 42-48; C. Warren, 2 Historyof the HarvardLaw School 372-74 (New
York: Da Capo Press, 1970) (reprint of 1908 ed.); Thomas C. Grey, "Langdell's Ortho-
doxy," 45 U. Pitt. L. Rev. 1, 1-2 (1983). Langdell can be placed within a broader societal
commitment to formalism characteristic of the middle to late 19th century. Cf. Morton
White, Social Thoughtin America: The RevoltAgainst Formalism(London: Oxford University
Press, 1976) (examines the revolt against formalism in the late 19th and early 20th
centuries).
131. See supratext accompanying notes 95-103. For a discussion of how the academic
training of attorneys in Europe, especially Germany, relates to the academic training of at-
torneys in the United States, see David Clark, "The Role of Legal Education in Defining
Modern Legal Professions," 1987 B.Y.U. L. Rev. 595, 601-4.
132. See Christopher C. Langdell, Cases on Contracts viii-ix, 2d ed. (Boston: Little,
Brown & Co., 1879) (preface to 1st ed.) ("Langdell, Cases on Contracts"); see also Joseph
Beale, 1 A 7reatise on the Conflictof Laws 147-49 (New York: Baker, Voorhis & Co., 1916).
Thomas Grey has suggested that the classically orthodox or Langdellian legal system is
comprehensive, complete, formal, and conceptually ordered. Grey, 45 U. Pitt. L. Rev. at
6-10. A legal system is comprehensive if it has no procedural gaps; every case gets decided.
It is complete if it has no substantive gaps; every case has a preexisting substantively correct
answer. It is formal if the result in every case is indubitably deduced through unquestiona-
ble or at least compelling reasoning. And it is conceptually ordered if "its substantive bot-
tom-level rules can be derived from a small number of relatively abstract principles and
concepts, which themselves form a coherent system." Id. at 8.

Present day legal science, at least in those forms which have achieved
the highest measure of methodological and logical rationality, i.e.,
those which have been produced through the legal science of the
Pandectists' Civil Law, proceeds from the following five postulates:
viz., first, that every concrete legal decision be the "application" of an
abstract legal proposition to a concrete "fact situation;" second, that
it must be possible in every concrete case to derive the decision from
abstract legal propositions by means of legal logic; third, that the law
must actually or virtually constitute a "gapless" system of legal pro-
positions, or must, at least, be treated as if it were such a gapless sys-
tem; fourth, that whatever cannot be "construed" rationally in legal
terms is also legally irrelevant; and fifth, that every social action of
human beings must always be visualized as either an "application" or
"execution" of legal propositions, or as an "infringement" thereof,
since the "gaplessness" of the legal system must result in a gapless
"legal ordering" of all social conduct.133
Similarly, classical orthodoxy was devoted to the logical consistency

of legal rules and principles. Classical orthodoxy envisioned the study of
law as a science: The legal scholar discovers indubitable and absolute prin-
ciples of law. These principles, small in number, can be "classified and
arranged"134into a formal framework so that each is in its "proper
place."135 These logically organized principles then serve as the founda-
tion for the noncontroversial derivation of all other legal rules and for the
resolution of all judicial disputes. A judge never makes law because the
legal system is gapless: To decide a case, a judge merely discovers the rele-
vant preexisting legal rule and applies it in a straightforward and clear
manner. If a legal rule does not clearly apply to the facts, then the judge
logically and noncontroversially deduces the result from the principles.
For classical orthodoxy, justice became "irrelevant"136in the quest for ab-
stract, logical consistency. In Weberian terminology, a judge who followed
the tenets of classical orthodoxy never considered substantive rationality:
The legal system was instead dedicated to the tireless pursuit of logically
formal rationality.'37
As earlier mentioned, Weber insists that the trend toward increasing
formal rationality in Western legal thought is systematically pervasive and
perhaps inexorable.138 Nevertheless, he expressly recognizes that the law is

134. Langdell, Cases on Contracts ix.
135. Id.
136. Christopher C. Langdell, Summary of the Law of Contracts 21, 2d ed. (Boston:
Little, Brown & Co., 1880).
137. Weber writes: "[T]hat conception of law which still prevails today and which sees
in law a logically consistent and gapless complex of 'norms' waiting to be 'applied' became
the decisive conception for legal thought." Weber, Economyand Society 855.

sometimes drawn in "antiformal directions."'39 In particular, Weber fo-

cuses on the "free law" movement in Germany, a critical reaction against
the formally rational Pandectists,140but he adds that this attack on logi-
cally formal rational legal thought is "international in scope."141 One rea-
son for this attack is the desire for substantive rationality, for the
satisfaction of ultimate values and needs.142 So long as the legal system
pursues logically formal rationality, substantive rationality is frustrated.
Another reason for the attack on formal rationality is the resistance of the
legal profession to increasing bureaucratization. Weber writes: "Being
confined to the interpretation of statutes and contracts, like a slot machine
into which one just drops the facts (plus the fee) in order to have it spew
out the decision (plus opinion) appears to the modern lawyer as beneath
his dignity."143
In the United States, this attack on logically formal rational legal
thought was manifest in the sociological jurisprudence of the early 20th
century'44 and, even more strongly, in the legal realism of the 1920s and
1930s. American legal realists outright rejected the classically orthodox
view of the law as a conceptually ordered system of absolute and certain
rules and principles. According to the realists, legal rules and principles
have little to do with how judges decide cases. At most, the principles and
rules provide post hoc rationalizations for the decisions, which are reached
either through hunches or through the pursuit of values and needs exter-
nal to the legal system.145 In other words, insofar as adjudication is ra-
tional at all, it is substantively rational, not formally rational.
Although Weber recognizes the antiformal movements in the law,
such as free law in Germany and legal realism in America, he nevertheless
concludes that they only "obscure"'46 the inexorable march of logically

140. Id. at 882-89.
141. Id. at 888.
142. Id. at 886, 894.
143. Id. at 886; see id. at 979.
144. See, e.g., Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven,
Conn.: Yale University Press, 1921); Roscoe Pound, "Mechanical Jurisprudence," 8 Colum.
L. Rev. 605 (1908); id., "The Scope and Purpose of Sociological Jurisprudence," 25 Harv. L.
Rev. 489 (1912). See generally G. Edward White, "From Sociological Jurisprudence to Real-
ism: Jurisprudence and Social Change in Early Twentieth-Century America," in Patternsof
American Legal Thought 99 (Charlottesville, Va.: Michie Co., 1978) ("White, Patterns")(dis-
cussing sociological jurisprudence and realism).
145. See, e.g., Jerome Frank, Law and the ModernMind (New York: Brentano's, 1930);
Felix Cohen, "Transcendental Nonsense and the Functional Approach," 35 Colum. L. Rev.
809 (1935); Joseph Hutcheson, "The Judgment Intuitive: The Function of the 'Hunch' in
Judicial Decision," 14 Corn. LQ. 274 (1929); Karl Llewellyn, "Some Realism About Real-
ism-Responding to Dean Pound," 44 Harv. L. Rev. 1222 (1931); see J. Herget & S. Wal-
lace, "The German Free Law Movement as the Source of American Legal Realism," 73 Va.
L. Rev. 399 (1987) (argues that the German free law movement was the foundation for
American legal realism).

formal rational legal thought, which "cannot really be stayed."147 Indeed,

these antiformal movements tend to create reactionary movements that
return to the pursuit of logically formal rationality.148 In the United
States, this dialectical reaction is manifest in the legal process movement
that began in the 1950s and continues today.
Henry Hart and Albert Sacks spearheaded the beginning of the legal
process school of thought with their course materials entitled The Legal
Process: Basic Problemsin the Making and Application of Law.149 Hart and
Sacks argue that an understanding of the law requires focusing on two
factors. First, they focus on the concept of the institution. According to
Hart and Sacks, society creates and designates different legal institutions
to resolve different societal problems.150 Courts are different from legisla-
tures, and while judges do occasionally make law, they are not free to make
law in the same way that legislators are free to make law.151
Second, Hart and Sacks focus on legal processes. They reason that
the various legal institutions are largely defined by the different procedures
or processes that are integral to them. Thus, individuals working within
different legal institutions are constrained by certain processes.'52 The
process that constrains judicial decision making is called "reasoned
elaboration."'53
Reasoned elaboration requires a judge always to give reasons for a
decision, articulating them in a detailed and coherent manner, and always
to assume that "like cases should be treated alike."'54 The judge must
relate the decision to the relevant rule of law, and must apply the rule of
law in a manner logically consistent with precedent.155 Furthermore, rea-
soned elaboration requires the judge to apply the law "in the way which
best serves the principles and policies it expresses."156 Finally, at the ap-
pellate level, judges who together reason through a case experience a "ma-
turing of collective thought,"157a rational result that somehow transcends
147. Id.
148. See id. at 888, 895.
149. H. Hart& A. Sacks,TheLegalProcess: BasicProblemsintheMaking andApplication
of Law(Tentativeed. 1958)("Hart& Sacks,TheLegalProcess"). Fora discussionof the
transitionfromAmericanlegalrealismto legalprocess,see G. Edward White,"TheEvolu-
tionof Reasoned Elaboration: Criticism
Jurisprudential andSocialChange,"in White,Pat-
terns136, 137-44("White,'Evolution of ReasonedElaboration' ").
150. Hart& Sacks,TheLegalProcess 3.
151. Id. at 366-68, 662; see VincentA. Wellman,"Dworkinand the LegalProcess
Tradition:The Legacyof Hart& Sacks,"29 Ariz.L. Rev.413, 431-34 (1987).
152. Cf. Hart& Sacks,TheLegalProcess iii (on the importance
of institutionsand
processes).
153. Id.at 160-68;see White,"Evolution of ReasonedElaboration," at 144-48.
155. See id. at 164-67.
156. Id.at 165.
157. HenryHart,"Foreword: The TimeChartof the Justices," 73 Harv.L. Rev.84,
100(1959).

the idiosyncratic nature of any one individual judge.158 Thus, the require-
ments of reasoned elaboration constrain judges in ways that executive of-
ficers, legislators, and administrators are not constrained.
Legal process, in other words, returns to the classically orthodox pur-
suit of logically formal rational legal thought.159 Judicial decisions must be
logically consistent with abstract "neutral principles":160The reasons justi-
fying a particular decision must transcend the immediate result of that
decision. Thus, according to Hart and Sacks, the judicial decision "is to
be arrived at by reference to impersonal criteria of decision applicable in
the same fashion in any similar case."161 Substantive rationality, the pur-
suit of ultimate values and needs, cannot overcome the quest for abstract
logical consistency.
B. Representation-Reinforcement Theory
An evolving legal process theory162reached its apex in the constitu-

tional theory of John Hart Ely. In Democracyand Distrust,163elegant in its
simplicity, Ely develops a complete and forceful argument for a process-
oriented constitutional theory, which he calls representation-reinforce-
ment. His purpose is to resolve two central and overlapping problems.
First, should the Supreme Court follow an originalist or a nonoriginalist
approach when construing the Constitution? Second, how can judicial
review of congressional actions be reconciled with democracy?
Under Ely's definitions of originalism and nonoriginalism, an
originalist approach to the Constitution is more restrained than a non-
originalist approach. In searching for the meaning of a constitutional pro-
vision, even an open-ended one, the originalist focuses solely on the
constitutional text and the intent of the framers. As Ely phrases it,
"judges deciding constitutional issues should confine themselves to enforc-
158. SeeWhite,"Evolution of ReasonedElaboration," at 145.

159. Butcf. GuntherTeubner,"Substantive andReflexiveElements in ModernLaw,"
17 Law& Soc'yRev.239 (1983)(focuson legalprocesses representsa postmodern advance
beyondthe Weberian dichotomyof formalandsubstantive rationality).
160. HerbertWechsler,"Toward NeutralPrinciples of ConstitutionalLaw,"73 Harv.
L Rev.1 (1959);see AlexanderM. Bickel,TheLeastDangerous Branch 49-59, 2d ed. (New
Haven,Conn.: Yale UniversityPress,1986) (1st ed. 1962) ("Bickel,LeastDangerous
Branch").
162. CompareAlexanderM. Bickel,LeastDangerous Branch49-59 (SupremeCourt
shoulddevelopandenforceneutralprinciples), withid.,TheSupreme CourtandtheIdeaof
Progress99, 165 (NewHaven,Conn.: YaleUniversityPress,1978ed.) (1st ed. in 1970)
(questionsthe possibility
of findingneutralprinciples).SeegenerallyJ. SkellyWright,"Pro-
fessorBickel,TheScholarly andtheSupreme
Tradition, Court,"84 Harv.L.Rev.769(1971)
Bickel'stransition).
(criticizing
163. Ely,Democracy andDistrust(citedin note9);seealsoJesseChoper,Judicial Review
andtheNationalPolitical Process(Chicago:Universityof ChicagoPress,1980).

ing norms that are stated or clearly implicit in the written Constitu-
tion."164 The nonoriginalist, on the other hand, freely moves beyond the
text and the framers' intentions, using other sources of substantive values
in an effort to give content to open-ended constitutional provisions.165
Ely notes that, initially at least, originalism appears to be the more
attractive theory because it apparently resolves the second central problem
for constitutional theory, reconciling judicial review with democracy.
Since our government is a representative democracy, when the Court finds
that a congressional act is unconstitutional, the Court-an unelected
branch of the government-is theoretically overturning the expressed will
of the majority. Judicial review thus creates, in Alexander Bickel's words,
the "counter-majoritarian difficulty."'66 Nonetheless, most recognize that
we cannot have pure majority rule because the majority might unfairly op-
press and tyrannize the minority. The problem is to identify what values
will be protected against the majority will. Originalism apparently pro-
vides an easy answer to this problem: The only values that are protected
are those that are "stated or clearly implicit in the written Consti-
tution."167
Ely nonetheless proceeds to show that an originalist approach to the
Constitution is unsatisfactory. First, insofar as the constitutional text rep-
resents the will of a majority, it certainly is not the will of the current
majority; at best, the Constitution represents the will of a long-dead major-
ity. Originalism itself is therefore antidemocratic.168 Second, and more
important, several provisions of the Constitution-such as the due process
clause, the equal protection clause, the privileges or immunities clause, and
164. Ely, Democracyand Distrust 1; see, e.g., Robert H. Bork, "Neutral Principles and
Some First Amendment Problems," 47 Ind. LJ. 1 (1971). Ely actually distinguishes "inter-
pretivism" from "noninterpretivism." I have substituted the term "originalism" for Ely's
"interpretivism" and the term "nonoriginalism" for Ely's "noninterpretivism" in order to
avoid confusion with the interpretivism of the more recent "interpretive turn" in jurispru-
dence. This latter form of interpretivism differs radically from Ely's notion of interpretiv-
ism. See Feldman, 76 Iowa L Rev. (cited in note 9). Compare Thomas C. Grey, "Do We
Have an Unwritten Constitution?" 27 Stan. L. Rev. 703 (1975) (in the manner of Ely, distin-
guishes interpretivism from noninterpretivism), with Thomas C. Grey, "The Constitution
as Scripture," 37 Stan. L. Rev. 1, 1 (1984) (questions the coherence of the distinction be-
tween interpretivism and noninterpretivism).
165. See Ely, Democracy and Distrust 43-72; see, e.g., Grey, 27 Stan. L Rev. 703,
715-16.
166. Bickel, Least DangerousBranch 16 (cited in Note 160); see Ely, Democracyand Dis-
trust4-7.
167. Ely, Democracyand Distrust 1, 7-9. According to Ely, another reason why original-
ism initially appears better than nonoriginalism is that the originalist model better fits our
usual conceptions of the law and judicial decision making. For instance, when a judge inter-
prets a statute, he or she is limited to considering its language and the intent of the drafters.
The judge is not free to consider other substantive values as a means of supplementing the
statutory text. The originalist argues, therefore, that judges should be similarly limited when
interpreting the Constitution. See id. at 3.
168. Id. at 11-12.

the Ninth Amendment-suggest that the Court shouldgo beyond the text
and the intent of the framers. In other words, the framers themselves ap-
parently intended the Constitution to protect values other than those
"stated or clearly implicit in the written Constitution."169
After showing that originalism is unworkable, Ely considers its tradi-
tional alternative, nonoriginalism, as a means for injecting substantive val-
ues into the open-ended provisions of the Constitution. Ely describes and
convincingly rejects seven different nonoriginalist sources and methods,
ranging from familiar ones such as natural law170to less familiar ones such
as the prediction of progress.171 Ely offers many reasons for rejecting the
various nonoriginalist theories,172but one problem is inherent to all such
approaches. All nonoriginalist theories are indeterminate and thus fail to
overcome the counter-majoritarian difficulty; nonoriginalism never suffi-
ciently constrains the Court's choice of values. Thus, Ely's colorful criti-
cism of natural law applies equally to other nonoriginalist approaches:
"The advantage [of natural law] is that you can invoke [it] to support any-
thing you want. The disadvantage is that everybody understands that."'73
Having rejected both the originalist and the nonoriginalist ap-
proaches to the Constitution, Ely offers in their stead his own alternative
theory, representation-reinforcement. Representation-reinforcement is a
process-oriented approach because it forbids the Court from making sub-
stantive value choices: The Court is limited to policing the processes of
democratic representation in our society. The Court can overturn a con-
gressional action as unconstitutional only if it resulted from a malfunction-
ing or defective democratic process. Thus, the Court is able to give
content to the open-ended constitutional provisions by policing the polit-
ical process, yet judicial review does not undermine our commitment to
representative democracy. The counter-majoritarian difficulty dissolves:
judicial review actually reinforces the democratic process.174
According to Ely, the Court can police the democratic process in two
169. Id. at 1, 12-14.

170. Id. at 48-54.
171. Id. at 69-70. In additionto consideringnaturallawand the predictionof progress
as possible sourcesor methods of substantivevalues, Ely considersthe personalvalues of
judges,neutralprinciples,the method of reason, tradition,and societalconsensusas other
possible sources. See id. at 44-69.
172. Id. at 43-72. For example,when consideringwhetherthe Court should injectthe
widelysharedvalues of the society (societalconsensus)into the open-endedconstitutional
provisions,Ely offersseveralcriticisms,includingthe following. The existenceof a consen-
sus on any importantissue is often questionable,and if a consensuswere to exist, it may
merelyreflectone group'sdominationof another. Moreover,there is no reason to think
that the Court is able to discoverany existingconsensus. As betweenthe Court and Con-
gress,the latter-being elected-is more likelythan the formerto reflectwidelysharedval-
ues. See id. at 63-69.
173. Id. at 50.
174. Id at 73-104. Ely arguesfurther that the constitutionaltext is primarilycon-
cerned with process and that federal judges are in the best position to police the

ways: by "clearing the channels of political change"175and by "facilitating

the representation of minorities."176 To clear the channels of political
change, the Court must prevent the political "ins" from insuring their
continued political power by choking the channels of political change and
permanently excluding the political "outs." Keeping the political process
open is essential because, according to Ely, democracy is the mechanism
for determining the substantive values of society. The Court does not
make substantive value choices; it merely keeps the political process open
so that the people-all of the people-can make those value choices demo-
cratically.177 Thus, for example, denying or diluting the right to vote
through legislative malapportionment is a "quintessential stoppage" in the
democratic process and therefore must be prevented by the Court.178 On
the other hand, recognizing a woman's right to choose to have an abortion
is, according to Ely, an unjustified substantive value choice by the
Court. 79
The Court further polices the democratic process by facilitating the
representation of minorities: The Court must prevent representatives
from systematically disadvantaging minorities because of hostility or preju-
dice.180 The democratic process is malfunctioning if everyone is not "actu-
ally or virtually represented."'18 Minorities that technically participate in
the democratic process by voting are nonetheless excluded if their elected
representatives ignore their interests merely because they are minorities.
Consequently, according to Ely, when a legislature intentionallydiscrimi-
nates against a minority for an improper motive, such as racial hostility,
"the system has malfunctioned,"182and the Court should find the legisla-
tive action unconstitutional, thus correcting the defect in the democratic
process. On the other hand, discriminatory effect alone does not render a
governmental action unconstitutional: The Court, according to Ely,
should not attempt to insure any substantive values or the satisfaction of
any substantive needs, unless expressly protected in the Constitution.183
majoritarian democratic process since they do not have to worry about reelection. Id. at
88-103.
175. Id. at 105.
176. Id. at 135.
177. Id. at 105-34.
178. Id at 117.
179. Id. at 248 n.52; see id. at 15; John Hart Ely, "The Wages of Crying Wolf: A
Comment on Roe v. Wade," 82 Yale L.J. 920 (1973).
180. Ely, Democracyand Distrust 135-79 (cited in note 9).
181. Id. at 101.
182. Id. at 137.
183. Id. at 135-45.

C. Process in Constitutional Adjudication
The Supreme Court has followed Ely's representation-reinforcement

theory in several contexts. This section discusses the Court's process-ori-
ented approach to racial discrimination cases involving equal protection
and the Fifteenth Amendment.184
In the context of equal protection, the Court applied the representa-
tion-reinforcement theory in Washingtonv. Davis,185decided in 1976. All
applicants for the District of Columbia police force were required to take a
written test intended to measure verbal ability, vocabulary, and reading
comprehension. The test had a discriminatory effect upon African Ameri-
cans: Test results eliminated from consideration more African-American
than white applicants. Unsuccessful African American applicants filed
suit, alleging a violation of equal protection as applied to the federal gov-
ernment through the due process clause of the Fifth Amendment.186
The Court, finding the test to be constitutional, held against the Afri-
can-American applicants. In so doing, the Court explicitly endorsed the
intent requirement of representation-reinforcement theory: "Our cases
have not embraced the proposition that a law or other official act, without
regard to whether it reflects a racially discriminatory purpose, is unconsti-
tutional solely because it has a racially disproportionate impact."187 Be-
cause the African-American applicants had failed to allege or prove
intentional discrimination, the Court refused to subject the governmental
184. The equal protection clause is U.S. Const. amend. 14, S 1. It applies to the fed-
eral government through the due process clause of the Fifth Amendment. U.S. Const.
amend. 5; see Bolling v. Sharpe, 347 U.S. 497 (1954). The Fifteenth Amendment states that
"[tlhe right of citizens of the United States to vote shall not be denied or abridged by the
United States or by any State on account of race, color, or previous condition of servitude."
U.S. Const. amend. 15, S 1.
One of the earliest statements and applications of representation-reinforcement theory
was in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 428 (1819) (Chief Justice Marshall
reasoned that the structure of the government protects against abuses of the government's
taxing power). Footnote 4 of United States v. Carolene Products Co., 304 U.S. 144, 152
n.4 (1938), foreshadowed the application of representation-reinforcement theory to racial
discrimination cases. See also Ely, Democracy and Distrust 73-74 (Warren Court followed
representation-reinforcement theory). Another context in which the Court has applied rep-
resentation-reinforcement theory is the dormant commerce clause. U.S. Const. art. 1, S 8,
cl. 3; see, e.g., South Carolina State Highway Department v. Barnwell Bros., 303 U.S. 177,
184 n.2 (1938).
185. 426 U.S. 229 (1976). Although Washingtonv. Davis was decided in 1976, four
years before Ely published Democracyand Distrust, representation-reinforcement theory was
nonetheless an already important approach to constitutional issues. See supra note 184.
Moreover, Ely had been publishing articles advocating representation-reinforcement
throughout the 1970s, before Washingtonv. Davis was decided. See, e.g., John Hart Ely,
"The Constitutionality of Reverse Racial Discrimination," 41 U. Chi. L Rev. 723 (1974); id.,
82 Yale L.J. 920 (1973). Ely's Democracyand Distrust was, however, the most complete and
definitive defense of representation-reinforcement theory.
186. Washington v. Davis, 426 U.S. at 239; see Bolling v. Sharpe, 347 U.S. 497 (1954).
187. Washington v. Davis, 426 U.S. at 239 (emphasis in original).

action to high-level scrutiny. Despite the clear discriminatory effect of the

test on African-American applicants, the Court merely applied the defer-
ential rational-basis standard.
The Court, in other words, suggested that the allegation and proof of
intentional discrimination would have demonstrated that the political pro-
cess had malfunctioned and thus would have justified heightened judicial
scrutiny. Since the democratic process had not been infected with dis-
criminatory intent, however, the Court could not justifiably interfere with
the governmental action. If it had interfered, the Court would have been
merely substituting its substantive value choice for that of another govern-
mental unit. The Constitution, according to the Court, did not guarantee
the African-American applicants any particular substantive result.188
The Court has explicitly followed this process-oriented approach in
subsequent equal protection cases focusing on racial discrimination. For
example, in Washingtonv. Seattle School District No. 1,189 decided in 1982,
the Court stated:
[W]hen the State's allocation of power places unusual burdens on the

ability of racial groups to enact legislation specifically designed to
overcome the "special condition" of prejudice, the governmental ac-
tion seriously "curtail[s] the operation of those political processes or-
dinarily to be relied upon to protect minorities." ... In a most direct
sense, this implicates the judiciary's special role in safeguarding the
interests of those groups that are "relegated to such a position of
political powerlessness as to command extraordinary protection from
the majoritarian political process."'90
And as recently as 1989, in the landmark case of City of Richmondv. J. A.

Croson Co.,191 where the Court held a minority set-aside program to be
unconstitutional, a plurality cited approvingly and quoted from Ely on rep-
resentation-reinforcement. 192
The significance of this process-oriented approach in equal protection
cases was never more stark, however, than in McCleskey v. Kemp,193de-
cided in 1987. McCleskey, an African American, was convicted of murder
in a Georgia state court and sentenced to death. He petitioned for habeas
corpus, alleging that the Georgia capital sentencing statute was racially dis-
criminatory and thus violated the equal protection clause of the Four-
188. See id. at 238-48.

189. 458 U.S. 483 (1982).
190. Id.at 486(quotingUnitedStatesv. CaroleneProducts Co., 304U.S. 144,152-53
n.4 (1938);SanAntonioIndependent SchoolDistrictv. Rodriguez, 411 U.S. 1, 28 (1973));
see Crawford v. Boardof Education, 458 U.S. 527, 541 (1982)(upholdingstateconstitu-
tionalamendment becauseit did not distortthe politicalprocessfor racialreasons).
191. 109S. Ct. 706 (1989).
192. Id.at 722.
193. 481 U.S. 279 (1987).

teenth Amendment. The Court rejected his claim.194

The Court stated the intent requirement: "For this claim to prevail,
McCleskey would have to prove that the Georgia Legislature enacted or
maintained the death penalty statute becauseof an anticipated racially dis-
criminatory effect."195 Without such proof of discriminatory purpose or
intent, the Court could not justifiably interfere with the substantive
choices made by the Georgia legislature. The Court merely polices the
political process: Only a malfunction in the legislative process would jus-
tify a judicial finding of unconstitutionality.
In this case, however, McCleskey offered striking statistical evidence
of racial discrimination. The Court summarized the findings of the so-
called Baldus Study: "[T]he death penalty was assessed in 22% of the cases
involving black defendants and white victims; 8% of the cases involving
white defendants and white victims; 1% of the cases involving black de-
fendants and black victims; and 3% of the cases involving white defend-
ants and black victims."196 The implications of this evidence are
"disturbing,"197in Justice Brennan's understated words of dissent. The
Baldus Study strongly suggests that the two most important facts leading
to McCleskey's death sentence were his race (African American) and his
victim's race (white).198 Despite the strength of this evidence, the Court
concluded that it merely proved discriminatory effect, not discriminatory
intent. Without the showing of discriminatory intent, the Georgia capital
sentencing scheme was subject to mere rational-basis review and thus was
found constitutional under the equal protection clause.199
The Court follows a similar process-oriented approach toward the Fif-
teenth Amendment. In City of Mobile v. Bolden,200decided in 1980, the
Court upheld as constitutional the at-large election of a three-member city
commission. The City had implemented its multimember districting
scheme 69 years earlier, yet no African American had ever been elected to
the commission,201 although approximately one-third of the electorate was
African American when the case was filed.202 Writing for a plurality, Jus-
tice Stewart stated: "Action by a State that is racially neutral on its face
violates the Fifteenth Amendment only if motivated by a discriminatory
194. Id.at 297-99. The Courtalsorejectedclaimsthatthe capitalsentencing scheme

wasadministered in a raciallydiscriminatorymanner,id. 289-98,andthat it violatedthe
prohibitionagainstcruelandunusualpunishment.Id.at 298-319;seeU.S. Const.amend.
8.
195. McCleskey v. Kemp,481 U.S. at 298 (emphasis in original).
196. Id.at 286.
197. Id.at 321 (Brennan, J., dissenting).
198. Id.
199. Id.at 297-99.
200. 446 U.S. 55 (1980).
201. Id.at 71.
202. Id.at 122(Marshall, J., dissenting).

purpose."203 Hence, despite undisputed evidence of discriminatory effect,

the plurality found that the political process was not infected with discrim-
inatory intent when this voting scheme was adopted. Consequently, it was
constitutional.204 Justice Stewart added: "The Fifteenth Amendment
does not entail the right to have Negro candidates elected."205
Cases such as Washingtonv. Davis, McCleskey v. Kemp, and City of
Mobile v. Bolden reflect the Court's commitment to a process-oriented ap-
proach to racial discrimination cases. The Court is willing to police the
democratic process, preventing discrimination from infecting that process,
but the Court is unwilling to enforce or define substantive values, unwill-
ing to ensure the fulfillment of the substantive needs or values of minori-
ties. Any substantive value choices must, according to the Court, be
decided through the democratic process. In short, the Court has adopted
and follows, sometimes expressly and sometimes not, Ely's representation-
reinforcement theory in racial discrimination cases involving equal protec-
tion and the Fifteenth Amendment.
D. A Weberian Critique of Process-oriented

Constitutional Law
Weber's theory of law suggests an internal critique of process-oriented

constitutional law.206 The critique is internal because it fully accepts the
203. Id at 62. The plurality consisted of Justices Stewart, Powell, and Rehnquist, and
Chief Justice Burger. Justice Stevens concurred in the judgment and agreed that discrimina-
tory impact alone does not establish a constitutional violation, but he did not agree that
discriminatory intent should be the standard for determining a constitutional violation. Id.
at 83-94. Justice Blackmun concurred in the result. Id. at 80-83.
204. Id at 61-65. The Court also rejected claims under the equal protection clause, id
at 65-80, and under S 2 of the Voting Rights Act of 1965, 42 U.S.C. S 1973 (1976). City of
Mobile v. Bolden, 446 U.S. at 60-61.
205. City of Mobile v. Bolden, 446 U.S. at 65.
206. Process-oriented constitutional law previously has been subjected to three stan-
dard criticisms. One criticism is that process-oriented approaches to the Constitution are
not truly value-free. In other words, commitment to an approach such as Ely's representa-
tion-reinforcement theory necessitates certain substantive value choices, and thus the theory
fails to satisfy its own prerequisite for success. See, e.g., Bruce Ackerman, "Beyond Carolene
Products,"98 Harv. L Rev. 713, 737-40 (1985); Paul Brest, "The Substance of Process," 42
Ohio St. L.J. 131 (1981); Mark Tushnet, "Darkness on the Edge of Town: The Contribu-
tions of John Hart Ely to Constitutional Theory," 89 Yale L.J. 1037, 1045 (1980). For
example, one commentator argues that the Constitution is not self-evidently committed to
pure democracy. Indeed, the Constitution appears to contain strong counter-majoritarian
strands. If true, then the process theorist's focus on policing the democratic process, instead
of identifying and protecting other substantive values, arises from that theorist's own tacit
substantive commitment to pure democracy. See David Lyons, "Substance, Process, and
Outcome in Constitutional Theory," 72 Cornell L. Rev. 745, 748, 755-56 (1987).
A second criticism is that even if a process-oriented approach were to avoid substantive
value choices, we simply should not be following such a tack. To the contrary, constitu-
tional law should focus on the identification and protection of substantive values and needs.
Policing the political process should be secondary to making substantive value choices. See,

fundamental and characteristic dichotomy of contemporary constitutional

jurisprudence: the distinction between process and substance, between
the means of choosing values and the values themselves. In other words,
as an internal critique, a Weberian analysis accepts the structures of consti-
tutional law as they are usually conceived today. And the conclusion of
this Weberian critique inspires only despair: Weber's theory suggests that
a process-oriented approach to constitutional law inexorably leads to sub-
stantive irrationality, the failure to satisfy substantive values and needs. In
the context of racial discrimination cases, Weber's theory suggests not only
that a focus on process allows racial discrimination to continue, but that it
makes it inevitable!207
e.g., Suzanna Sherry, "Selective Judicial Activism in the Equal Protection Context: Democ-
racy, Distrust, and Deconstruction," 73 Geo. LJ. 89 (1984); Laurence Tribe, "The Puzzling
Persistence of Process-based Constitutional Theories," 89 Yale LJ. 1063 (1980). For exam-
ple, one commentator argues that the Court should focus on what classes of people-Afri-
can Americans, aliens, women, homosexuals-need special judicial protection, not on
whether a legislature has intentionally discriminated against a certain class. Sherry, 73 Geo.
LJ. at 119.
A final standard criticism of process-oriented approaches is that an apparently fair pro-
cess can be skewed by social and economic inequalities. For a minority that is dispropor-
tionately situated on the lower end of the socioeconomic scale, fair process may lead to
unfair results. Yet the fair process tends to deflect any criticism of the substantive results,
thus leaving the minority in its oppressed position. A process-oriented approach to consti-
tutional law, in other words, tends to allow societal inequalities to continue. See, e.g., Rich-
ard Delgado, "The Imperial Scholar: Reflections on a Review of Civil Rights Literature,"
132 U. Pa. L Rev. 561, 568-71 (1984); Richard D. Parker, "The Past of Constitutional
Theory-and Its Future," 42 Ohio St. LJ. 223 (1981); cf. Charles Lawrence, "The Id, the
Ego, and Equal Protection: Reckoning with Unconscious Racism," 39 Stan. L Rev. 317
(1987) (intent requirement overlooks the problem of unconscious racism). See generally
Derrick Bell, Race, Racism and American Law 2d ed. (Boston: Little, Brown & Co. 1980)
(minorities tend to gain rights and opportunities when those gains coincide with the inter-
ests of the white majority). Pursuing this criticism, some commentators have attacked pro-
cess-oriented approaches to racial discrimination for accepting a "perpetrator
perspective"-in other words, for focusing on governmental actors. If a governmental actor
does not infect the political process with intentional discrimination, then the governmental
action is constitutional regardless of any discriminatory effect on a disadvantaged minority.
The Court, by focusing on the governmental actor or perpetrator of discrimination, ignores
the plight of the victim, who may be a member of a minority group effectively locked into a
disadvantaged position by economic disparities. Delgado, 132 U. Pa. L Rev. at 571; Alan
Freeman, "Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical
Review of Supreme Court Doctrine," 62 Minn. L Rev. 1049, 1052-57 (1978); see Martha
Minow, "Foreword: Justice Engendered," 101 Harv. L Rev. 10, 83-84 (1987).
Weber's theory of law suggests an additional and stronger critique of process-oriented
constitutional law. The force of the Weberian critique arises from its acceptance of the basic
structures of constitutional law as it is currently conceived, and from the conclusion of the
critique, that constitutional jurisprudence is laced with irreconcilable tensions. See infratext
accompanying notes 207-14.
207. See supra text accompanying note 39 (on the meaning of "inevitability"). Trubek
argues that one should be wary of applying Weber's ideal types in new contexts. See
Trubek, 1972 Wis. L. Rev. at 752. Indeed, Weber did not apply his sociological theory to
constitutional law, and for the most part, he dealt with public law issues only when they
overlapped with private law questions. See Weber, Economyand Society 641-44, 655, 710-13
(cited in note 11). Weber did, however, contribute to the writing of the constitution of
Germany after the First World War. See S. Turner & R. Factor, "Decisionism and Politics:

From a Weberian standpoint, a process-oriented approach is the

apotheosis of logically formal rational legal thought in constitutional
law.208 Representation-reinforcement theory reduces constitutional law to
one clear and general rule: The Court should police the political process.
This rule is attractive for its simple elegance: The Court never needs to
become enmeshed in the shifting sands of substantive values, never needs
to make any difficult choices. Instead, the Court focuses solely on the
means for making those difficult substantive value choices. In racial dis-
crimination cases, the Court asks only whether discriminatory intent in-
fected the governmental action. Constitutional decision making is
abstracted from the plight of the victims: in Washingtonv. Davis, the disap-
pointed African-American applicants for the police force who had been
eliminated by a written test with clear discriminatory effects; in McCleskey,
the African American criminal defendant who faced the death penalty
while knowing that a white defendant probably would not have suffered
the same fate; and in City of Mobile, the citizens who had never elected an
African American to the multimember city commission even though one-
third of the population was African American. The actual contexts of
these cases were pushed aside, forced into the background, serving at best
as mere evidence of discriminatory intent.
A Weberian analysis acknowledges, however, that this process-ori-
ented approach renders constitutional law simple and predictable. Weber
emphasizes that logically formal rational legal thought has this advan-
tage.209 The Court's task is greatly simplified since it searches only for
discriminatory intent, not for obscure substantive values. And attorneys
Weber as Constitutional Theorist," in S. Lash & S. Whimster, eds., Max Weber, Rationality
and Modernity335 (London: George Allen & Unwin, 1987). More important, my discus-
sion of the metaphysical underpinnings of the categories of legal thought (see supra text
accompanying notes 12-33) suggests that they can be applied to Western legal institutions
beyond those expressly focused on by Weber; a similar metaphysics underlies current consti-
tutional law. See Feldman, 1989 Duke LJ. at 1347-49; id., 76 Iowa L Rev. (cited in note 9).
Moreover, the close fit between Weber's categories and the current categorizations of
thought in constitutional law supports the applicability of Weber's ideal types. See infra text
accompanying notes 208-14.
208. See supra text accompanying notes 50-55. I do not mean to suggest that a pro-
cess-oriented approach successfully reduces constitutional law to a calculable or predictable
field. A strong argument can be made that no method can perform that task. See Mark
Tushnet, Red, White, and Blue 1-187 (Cambridge: Harvard University Press, 1988); Paul
Brest, "The Fundamental Rights Controversy: The Essential Contradictions of Normative
Constitutional Scholarship," 90 Yale L.J. 1063 (1981); Feldman, 1989 Duke LJ. at 1347-49;
id., 76 Iowa L. Rev. If, however, we accept the metaphysical foundations of Weberian theory
and the similar metaphysical foundations of current constitutional law, and if we accept the
separation of process and substance, then a process-oriented approach theoretically should
maximize formal rationality. The acceptance of these premises or foundations is nonetheless
problematic. See infra note 214. The point of the Weberian critique is that it is internal: It
accepts the structures of constitutional law as currently conceived and proceeds to under-
score the tensions inherent within those structures.
209. See supra text accompanying notes 61-74. One can question, however, whether
logically formal rational legal thought actually has this advantage. See supra note 208.

and commentators can more easily predict judicial action when the Court
limits itself to policing the political process rather than seeking to define
and enforce substantive values. Thus, in one sense, process-based consti-
tutional law increases human freedom by increasing calculability for the
Court, attorneys, commentators, and governmental actors. For instance,
if a governmental actor knows exactly what can and cannot be done, then
he or she is free to plan for the future, confident of the consequences likely
to flow from any action. With regard to racial discrimination, the govern-
mental actor knows that so long as his or her action is not tinged with
discernible discriminatory intent, that action will not violate equal protec-
tion or the Fifteenth Amendment. The governmental actor need not
worry long over the actual effects of his or her actions.
But Weber's theory of law underscores a monumental problem: A
process-oriented approach to constitutional law necessarily means that
substantive values and needs are ultimately not satisfied. In the racial dis-
crimination cases, the Court's adherence to representation-reinforcement
theory necessitates the continuing oppression of disadvantaged minorities.
Process-oriented constitutional law necessarily means a lack of employ-
ment opportunities (Washingtonv. Davis), it means a lack of actual repre-
sentation in government (City of Mobile v. Bolden), and sometimes it means
even death (McCleskeyv. Kemp). These substantively irrational results are
not merely allowed under a process-oriented approach-they necessarily
flow from it.
Moreover, Weber's theory suggests that this fate is inescapable: We
are trapped within an iron cage of constitutional law. Since Weber ex-
pressly argues that Western society forever marches toward increasing de-
grees of formally rational legal thought, his theory suggests that, in
constitutional law, we are forever marching toward a stronger and stronger
commitment to process-oriented theory and adjudication. And so long as
we continue this march, we insure that substantive values and needs will
not be satisfied. Even if we initially turned to process-based constitutional
law only as a means to attain fair substantive results, then the means has
bizarrely become the end. Fair process itself has become the ultimate goal
and value, thus obscuring and inevitably interfering with the satisfaction
of other goals and values.210
But why can we not simply reject formal rationality and instead pur-
210. See supranote 44 and accompanyingtext; see also Ely, Democracyand Distrust
181-83 (cited in note 9); Thomas C. Grey, "ProceduralFairnessand SubstantiveRights,"
18 Nomos182 (1977). I do not mean to suggestthat fair processnever leadsto fairsubstan-
tive results;sometimesit in fact does. The problemarises,however,when fair processitself
becomesa goal. Then the pursuitof fair processnecessarilyleadsonly to fairprocess: Sub-
stantiveresultswill sometimesbe fair and sometimesunfair(since substantivelyfair results
are no longerbeing activelypursued). Consequently,some substantivelyunfairresultsinevi-
tably follow from an undue focus on fair process.

sue substantively rational legal outcomes? In other words, when Weber

argues that the commitment to formal rationality is so pervasive that a
long-term pursuit of substantive rationality is impossible, perhaps Weber is
wrong. Weber would undoubtedly respond by emphasizing that a repudia-
tion of logically formal rational legal thought is especiallyunlikely in the
United States because of the firm commitment to academic legal train-
ing.21 Moreover, even if the American legal system could transform and
commit to substantive rationality, a Weberian analysis suggests that the
transformed system would inevitably lead to formal irrationality and thus
the loss of a type of human freedom-the type of freedom that corre-
sponds to formal rationality. According to Weber, the inverse relationship
between formal and substantive rationality cannot be avoided. Also, John
Ely's critique of nonoriginalist constitutional theories calls into question
the very possibility of finding a workable theory focusing on substantive
values.212 Finally, in the context of racial discrimination, any theory focus-
ing on substantive values would need to account for and somehow over-
come the cultural racism that is so pervasive in American society.213
Thus, the conclusion of a Weberian critique is that modern constitu-
tional law is laced with irreconcilable tensions between formal and sub-
stantive rationality-between process and substance. This Weberian
critique is an internal critique. It accepts the current conception of consti-
tutional law, acknowledges its benefits, underscores its inherent inconsis-
tencies, and offers no solutions. Weber details the bleakness of our
211. One can reasonably argue that legal thought has oscillated between extremes de-
fined by a subjective and an objective attitude toward the law, which reflects the Cartesian
separation of the subject and external world. See Feldman, 1989 Duke LJ. at 1347-49 (the
Cartesian either/or in constitutional law; either we have objective knowledge or no knowl-
edge at all);id, 76 IowaL Rev.;cf. MortonJ. Horwitz,The Transformation
of AmericanLaw,
1780-1860 at 29-30 (Cambridge: Harvard University Press, 1977) (early 19th century saw
an ascendancy of substance over form); Gunther Teubner, "Substantive and Reflexive Ele-
ments in Modern Law," 17 Law & Soc'y Rev. 239, 241 (1983) (asking whether legal thought
has oscillated between antagonistic principles or has evolved generally in one direction).
212. See supra text accompanying notes 170-73. Even critics of Ely acknowledge the
effectiveness of his attacks on nonoriginalism. See, e.g., Paul Brest, "The Substance of Pro-
cess," 42 Ohio St. L.J. 131 (1981); Tushnet, 89 Yale LJ. 1037, 1057 (cited in note 206).
Weber himself clearly doubts whether a rejection of formally rational legal thought, if it were
possible, would lead to substantively rational results. See Weber, Economyand Society 893
(cited in note 11); Sally Ewing, "Formal Justice and the Spirit of Capitalism: Max Weber's
Sociology of Law," 21 Law & Soc'y Rev. 487, 510 (1987); see, e.g., Stephen M. Feldman,
"Felix S. Cohen and His Jurisprudence: Reflections on Federal Indian Law," 35 Buff. L. Rev.
479 (1986) (the rejection of formalist approaches in American Indian law has not led to
substantive justice).
213. See Kimberle Crenshaw, "Race, Reform, and Retrenchment: Transformation
and Legitimation in Antidiscrimination Law," 101 Harv. L Rev. 1331 (1988); cf. Charles
Lawrence, "The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism,"
39 Stan. L. Rev. 317 (1987) (intent requirement in equal protection law overlooks the prob-
lem of unconscious racism in American society). See generally Derrick Bell, Race, Racism
and American Law, 2d ed. (Boston: Little, Brown & Co., 1980) (minorities tend to gain
rights and opportunities when those gains coincide with the interests of the white majority).

current constitutional reality: We live within an iron cage, with only de-
spair and without chance of escape.214
CONCLUSION
Max Weber's sociology is a modernist critique of Western society.
The foundation for Weber's analysis is his neo-Kantian metaphysics: His
focus on the tension between the thinking subject and an infinite reality
facilitates his examination of the many tensions within Western institu-
tions and thought. Freedom of contract, for example, enhances human
freedom by increasing calculability but simultaneously decreases freedom
by preventing individuals from satisfying their ultimate values and needs.
In short, Weber is resolutely consistent in his focus on the tensions embed-
ded in Western society. Reflecting this consistency, his analysis of legal
thought parallels his analysis of economic action. In both analyses,
Weber's conclusions are funereal: Western society is inexorably marching
toward increasing formal rationality, yet is simultaneously and inevitably
sinking into substantive irrationality.
Weber's theory of law has significant implications for modern consti-
tutional theory and adjudication. One of the leading current constitu-
tional theories is John Ely's process-oriented theory of representation-
reinforcement, which the Supreme Court has applied in several contexts,
including equal protection and Fifteenth Amendment racial discrimina-
tion cases. In following this approach, the Court theoretically refuses to
make substantive value choices, relegating itself to policing the means-
democracy-for making those choices. But a Weberian critique of repre-
214. One can argue that we can escape the iron cage of constitutional law if we can
reconceive the basic structures of the field. In particular, we must escape the Cartesian
either/or in constitutional law: either we have objective knowledge or no knowledge at all.
See Feldman, 1989 Duke L. J. at 1347-49. The path to this escape may lie in the interpretive
turn. See id. at 1349-56; id., 76 Iowa L. Rev. (cited in note 9); Joan Williams, "Critical Legal
Studies: The Death of Transcendence and the Rise of the New Langdells," 62 N.Y.U. L.
Rev. 429 (1987). For discussions of hermeneutics and the interpretive turn, see Richard J.
Bernstein, Beyond Objectivismand Relativism: Science, Hermeneutics,and Praxis (Philadelphia:
University of Pennsylvania Press, 1983); Hans-Georg Gadamer, Truth and Method, trans. J.
Weinsheimer & D. Marshall, 2d rev. ed. (New York: Crossroad, 1989) (originally published
in German in 1960; the first English translation was Hans-Georg Gadamer, Truth and
Method, trans. W. Glen-Doepel (New York: Crossroad, 1975)); Richard E. Palmer, Herme-
neutics (Evanston, Ill.: Northwestern University Press, 1969); Richard Rorty, Philosophyand
the Mirrorof Nature (Princeton, N.J.: Princeton University Press, 1979); P. Rabinow & W.
Sullivan, "The Interpretive Turn: Emergence of An Approach," in P. Rabinow & W. Sulli-
van, eds., InterpretiveSocial Science-A Reader 1-21 (Berkeley: University of California Press,
1979).
For a discussion of the difficulties of applying an interpretive approach to empirical
social science studies of our legal system, see David Trubek & John Esser, " 'Critical Empiri-
cism' in American Legal Studies: Paradox, Program, or Pandora's Box?" 14 Law & Soc.
Inquiry3 (1989).

sentation-reinforcement theory leads to the following conclusion: A pro-

cess-oriented approach to constitutional adjudication may maximize
formal rationality, but it simultaneously and inevitably increases substan-
tive irrationality. In racial discrimination cases, representation-reinforce-
ment ensures that the substantive values and needs of minorities remain
unsatisfied. We are thus locked within an iron cage of constitutional law,
furiously chasing formal rationality like a hamster on a treadmill, all the
while spewing out substantively irrational results.


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Max Weber'ssociologyis a modernistcritiqueof Westernliberalinsti-

Stephen M. Feldman is an associate professor at the University of Tulsa College of

© 1991 American Bar Foundation.

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sus determinism, rationality versus irrationality, form versus substance,

1. T. Bottomore & W. Outhwaite, "Introduction,"in Karl Lowith, Max Weberand

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cepts the present constitutional conceptions, it refuses to offer revolution-

6. See infra text accompanying notes 10-46.

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racial discrimination. Through representation-reinforcement, the Court,

I. FOUNDATIONS OF WEBER'S THEORY OF LAW

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between free will and determinism. To the contrary, he instead explicitly

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23. Id. at 110 (emphasis in original).

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groups, and the norms determinative of disputes among group mem-

30. Id. at 696.

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B. Sociological Categories of Economic Action

34. Weber, Economyand Society 85-86.

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The Puritan wanted to work in a calling; we are forced to do so.

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The drive in Western society toward the increasing formal rationality of

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I. WEBER'S THEORY OF LAW

47. See Weber, Economyand Society 656-57.

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tion of Western society-increasing rationalization generally means

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Legal thought, according to Weber, is formally irrational "when one

56. Id. at 656.

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B. Increasing Formal Rationality of Legal Thought

61. See supra text accompanying notes 34-46.

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with the development of a market exchange economy, leads to the modern

1. Causal Relationship of Law and Economy

Weber is interested in two aspects of the causal relationship of law

72. See Weber,Economy andSociety729 (citedin note 11).

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prerequisite for the development of capitalism.83

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Weber insists that capitalist interests do not by themselves create formally

Economic situations do not automatically give birth to new legal

91. See Weber, Selections339 (cited in note 11).

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Weber's primary distinction is between "empirical legal training,"97on the

The legal concepts produced by academic law-teaching bear the

97. Id.at 785.

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2. Tension Between Formal and Substantive Rationality

In his discussion of economic development, Weber argues that West-

104. Seesupratext accompanying notes40-45.

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Formal justice guarantees the maximum freedom for the interested

Formally rational legal thought, in other words, theoretically increases

Feldman S, An Interpretation of Max Weber's Theory of Law, 1991

Feldman S, An Interpretation of Max Weber's Theory of Law, 1991