Weber and Marx on law: Demystifying ideology and law ? Toward an emancipatory political practice

Abstract

In the last few years, scholars once again have looked at the relationship of law to social economic developments. Weber and Marx stand out as the most discussed key spokesmen in this recent literature. Neither of their writings, however, have been analyzed critically and exhaustively to the detriment of precision in recent thinking on the development of law under capitalism. This essay will first explore three problematics: the relationship between law and domination, the relationship between law and political structure, and the relationship between law and the economic system. It will then address, in part two, the question of repressive formalism [ 1 ] at both the formal level (lawmaking), as well as the substantive level law in practice (lawfinding). There I will argue the potentially greater merits of Marxian analysis over Weberian analysis in uncovering the more subtle forms of repressive formalism in praxis, and so, too, the necessary direction for emancipatory political practice in lawfinding. Little has been written on a Weberian analysis of law and development. With few exceptions [2], Weber's analysis, notably in some two hundred and fifty pages in volume two of Economy and Society [3], has been little argued in academic circles. This essay will highlight key points in his analysis. | will then juxtapose the Marxian perspective, in its many forms, on Weber's analysis. At the outset, Weber's definition of law has it that " . . . an order will be called law if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity to avenge violation, will be applied by a staff of people holding themselves specially ready for that purpose" [4]. He goes on to identify several forms of legal thought. It must be pointed out that these are "ideal-types" or, more accurately, methodological devices serving heuristic purposes that permit analysis of legal systems of concrete societies. Briefly, the structure of legal thought can be placed along two dimensions rationality/irrationality and formal/