Max Webers Rechtssoziologie und die juristische Methodenlehre. 2nd edition by Jens Petersen (review)

Abstract

[MWS 14.2 (2014) 269-272] ISSN 1470-8078 Book Review Jens Petersen, Max Webers Rechtssoziologie und die juristische Methodenlehre. 2nd edi tion (Tübingen: Mohr Siebeck, 2014), 181+xiv pp. ISBN 978-3-16-153159-0. €54.00. In his Max Webers Rechtssoziologie und die juristische Methodenlehre Jens Petersen has drawn much needed attention to Max Weber's sociology of law. Considerably ear lier Hubert Treiber had argued that an 'elective affinity' exists between Weber's 'Rechtssoziologie' and his 'Religionssoziologie', and this 'elective affinity' is his notion of rationalization (Treiber 1984: 7-8, 56-59). Despite this close relationship between Weber's 'sociology of law' and his 'sociology of religion', the former has been relatively neglected in contrast to the latter. Petersen clearly makes this point in his preface where he notes that an 'entire library' can be filled with books on Weber's 'sociology of religion' whereas only a few volumes have been devoted to his 'sociol ogy of law' (p. vi). Like Treiber, Petersen recognizes the importance of rationaliza tion for Weber's sociology of law (p. 37). However, rationalization is only one, albeit a major, component, thus he focuses primarily on Weber's legal methodology. In this way Petersen intends to draw more attention to Weber's 'Rechtssoziologie'. As Hubert Treiber noted in his review of the volume on law ('Recht') in the Max Weber Gesamtausgabe Weber's sociology of law is difficult to understand, in part because its history had not yet been so thoroughly investigated and because of the difficult nature of the material. However, Treiber also notes how crucial law is to Weber's general sociology and he commends the editors of the 'Recht' volume for helping to clarify its origins and providing some much needed historical context (Treiber 2011). Although Petersen follows others in noting that one of Weber's greatest contribu tions to the sociology of law is with the recognition of the importance of the process of rationalization, he Petersen goes beyond them in his emphasis on certain aspects of rationalization; for example, Weber's distinction between 'law creation' ('Rechtss chöpfung') and 'law finding' ('Rechtsfindung') (pp. 36-39). Regarding the former, Weber emphasized that humans rationally make laws and rejected the idea that divinities arbitrarily decree them. Regarding the latter he underscored how legal analysts were able to deduce increasingly specific legal findings from the more gen eral norms. In addition, Weber warned about the tendency of lay people to believe that legal thinking vacillated between vague legal theories and hair-splitting judicial decisions. What was warranted was an empirically-based system of legal principles that included clearly articulated judicial concepts (pp. 40-43). For Weber, this system should be clear and complete, that is, it needs to be readily understandable, not have any gaps; and, it should be free from internal contradictions (pp. 54,61,64-66, 79). Weber's clear implication was that a great many earlier legal philosophies were fun damentally flawed. One of Petersen's greatest services in this regard is his juxtapo sition of Weber's new 'sociology of law7 against the 'legal methodological doctrines' ('juristische Methodenlehre') of his time and he does so by pointing to the specific© Max Weber Studies 2014, Clifton House, 17 Malvern Road, London, E8 3LP. 270 Max Weber Studies problems Weber had with three important legal methodological doctrines: the pure theory of law, common law, and natural law. Weber objected to the first because it is too abstract and appears to lay people as being 'alien to life' (pp. 102-103); he objected to the second because it relies solely on experience and rejects logic (p. 87); and he objected to the third because it was not so much a legal doctrine as it was a theological one, and a Catholic one at that (pp. 75-77). Having dispensed with Weber's criticisms of the existing legal approaches, Petersen turns his attention to reconstructing Weber's own approach. Petersen draws a connection between Weber's sociology of law and his doctrine of method; both are heavily involved with conflict and with values. Regarding the first, there is no doubt that Weber believed that his methodology was crucial but...