The Benefits and Limits of the Ideal Type Approach for the Study of Law in Contemporary Societies - Research Paper Example

Essay: Question Question Consider this excerpt from Richard Lampert and Joseph Sanders, Law and Social Science, of Pennsylvania Press, 1986: “The essence of the ideal type is twofold. First, it is a conceptual abstraction from reality which is sufficiently general that it cannot capture the whole of any actual phenomenon. Second, it is a stylized construct that represents the perfect, and thus unreal example – it is not the average case; it is the pure one. As a pure case the ideal type is an analytical yardstick against which we might measure actual actions, institutions, or societies.” Describe and critically discuss the benefits and limits of the ideal type approach for the study of law in contemporary societies. By Student Name Course University Date Introduction The ideal type is associated with Max Weber who argued that both an objective and a subjective, but, more detailed approach to legal studies was preferable. This approach captures a more robust and complex ‘reality,’ and although unrealistic, helps us to identify and segregate the diverse parts that exist in practice and institutionally.1 Lempert and Sanders however, share a different view of the ideal type approach to the study of law. According to Lampert and Sanders, the ideal type approach relies on a flawless situation and therefore does not allow for its application to the ordinary case.2 This essay analyses both perspectives and determines the extent to which Lempert and Sanders analysis of the ideal type approach is consistent with the study of law in contemporary society and the extent to which Weber’s concept of the ideal type approach is consistent with the study of law in contemporary society. The Study of Law in Contemporary Societies This section analyses the literature on the role of law and thus the study of law in contemporary societies. In this regard, Trubek argues that law is best understood, interpreted and applied through an understanding of its relationship with the ‘legal, social, economic and political orders.’3 For instance, Santos demonstrates how the law co-existed with social and political changes throughout history to the post-modern era.4 Regardless there are two ways in which contemporary legal thoughts and studies are conceptualized. On the one hand, it has been argued that contemporary legal thoughts are historically based and relies on historical accounts of institutions, economics and social order.5 On the other hand, contemporary legal thought is said to be based on ‘experimentalism’ in that it is forward looking and in doing so seeks to predict the trajectory of current problems, needs and issues.6 Regulations are therefore either backward looking in learning from past problems, needs and issues and/or forward looking in terms of predicting what problems, needs and issues are likely to arise. Contemporary legal thought and studies are primarily experimental in that new languages in terms of food, other products and services have given way to unprecedented demands and opportunities and thus give rise to legal issues that have little or no connection to history or renders history obsolete.7 Barrozo looks at contemporary legal thought and studies as a continuation and expansion of the past.8 For example, democracy which is widely practiced by governments today was a product of historical transference and retains the same elements of its origins. However, what has changed is the number and types of disputes that arise between the governed and the government and thus points toward an expansion of the tenets of democracy and governance.9 The question for consideration is whether or not the ideal type legal study is sufficient for contemporary society. The Ideal Type Approach and Contemporary Societies According to Weber, the ideal type of legal studies is more effective for application to and understanding the legal realities of contemporary society if it is more rational. In this regard, the civil law system adopted by Germany is more rational than the case law system generated and practiced in the English system. The English approach to law is decidedly ‘irrational’, according to Weber.10 Thus in comparing the two systems, Weber came to the conclusion that an ideal type of law is formal to the extent that it provides for greater certainty and predictability. The irrational and rather informal approach of the common law leaves open the possibility for greater uncertainty and therefore less predictability at the cost of social order.11 For Weber, the search for reality is grounded in both objective and subjective meaning and understanding. On the one hand, objective thought provides a universal path toward reality.12 In this regard, reality is formed objectively by reference to what is known and understood formally.13 However, how individuals interpret, apply and understand thoughts is formed subjectively based on the individual’s own experiences and perspectives. This is where Weber imports the idea of ‘nomological laws’ or rather ‘ideal-typical’ law which is the ‘translation’ of rules and ‘boundary conditions’ which are ‘capable of reliable descriptiveness and predictiveness.’14 Thus Weber’s ideal type is a cross between a scientific approach and an ‘interpretive approach’. According to Weber, knowledge is both scientifically observed and interpretive. While some cases can be generalized, others may require more specific subjectivity.15 Contemporary society with new languages, products and services as discussed in the previous section does permit generalizations that can be dealt with by the ideal type of legal studies. For example the invention of the motor car and the superhighway, has been subject to speeding laws in many contemporary jurisdictions. A law specifying a speeding fine for motorists who exceed the speed limit will be generalized in its application. For the most part any motorist breaking the speed limit will be equally liable under the law. This kind of law in contemporary society can be regulated by statute without referencing or drawing guidance from previous case laws. In addition, such a law in contemporary society in terms of fixed speed limits is certain and predictable. On the other hand, there are times when an objective application of a fixed speed limit may be interpreted and applied subjectively in contemporary society. For instance, a fire truck rushing to the scene of an accident will have lawful and employer support for exceeding the speed limit. This is because time and lives may be lost if in the circumstances of an emergency specific to the motorist’s driving at a high speed. An objective view of the speeding would require examining the facts and circumstances of the speeding and what a reasonable man or woman in a similar set of facts and circumstances would do. This might apply to an individual who is late for a party. A reasonable motorists would refuse to break the speed limit and put innocent motorists and passengers’ lives and health in danger of harm or death, just so that the motorist arrives at a party. However, in the case of a fire truck, both a subjective and objective view of the facts and circumstances of the case would absolve the motorist of liability as he was merely attempting to meet the demands of an emergency that posed a threat to life and limb. The example of the road traffic regulations and its application in both objective and subjective ways can explain why critics such as Lempert and Sanders have a difficulty accepting Weber’s ideal type of law for contemporary society or at all. According to Lempert and Sanders, Weber ‘regarded logically formal rationality as the most advanced kind of legal ordering’ and regarded this type of law as ‘particularly hospitable to the growth of the capitalist state’.16 Where Weber errs is in his failure to adequately take account of the link between the formality of law and ‘substantive law’.17 As Lempert and Sanders explain, the formality of law will direct how a trial proceeds and what evidence may be admitted and how it may be admitted and may in some cases determine the outcome of a case.18For example, if a prosecution finds after proceeding with a case that the indictment as worded will not be successfully prosecuted and seeks to amend the indictment, the case is likely to be dismissed based on the original indictment if it would be unfair to the defendant to change the indictment after the trial starts.19 Even so, some formalities may ‘lead to situations where the outcome will reflect the influence of some extralegal normative system.’20 For example, a formality of law is the creation and use of jurors who will determine the outcome of a case on the facts and how similar facts are interpreted by jurors can differ.21 In addition, laws that are created by statutes or by case law can include ‘norms’ that originate out of ‘nonlegal institutions’.22 When this happens, the law emerges as based on substantive rationalities, but some measure of formalities are retained. In some difficult cases, rather than look solely at the formal law, the court will generally look toward the rationale for the law and how the facts of the case line up to the rationale for the law and will draw on the ‘moral system that supports the norm rather than the logical implications of an enacted norm’.23 Thus contemporary systems require a departure from formal logical because circumstances and conditions change quite often so that where circumstances and conditions are present in a case and were not previously contemplated by law makers, judge made law is formed on the basis of the rationale for the original law that might not expressly refer to the facts and circumstances of a case. Holton and Turner also rejects Weber’s contention that formal law is superior. Holton and Turner argue that Weber fails to take account of the ‘social actor’ in contemporary society.24The social actor makes decisions and takes action quite often informed by different intentions and/or necessitated by circumstances that can excuse his or her actions despite a formal law that recognizes a specific defence.25 Even so, the substantive law can prescribe generalized defences that allow a defendant to frame his defence within the statutory requirements. Although a defendant’s defence may not always be supported by statute, a jury may nonetheless choose to acquit the defendant on the basis of a defence that is not defined by statute nor the common law. Kennedy criticises Weber’s ideal type in terms of Weber’s concept of contract bargaining. According to Weber, individuals make contract and commercial choices today on the basis of ‘coercion’.26 However, according to Kennedy, contemporary actors do not negotiate contracts and commercial bargaining on the basis of choosing between coercive alternatives. Rather, in today’s world, contractual and commercial transactions are selected and acted upon on the basis of autonomy and self-power.27 The coercive approach to commercial bargaining is inconsistent with the intention of contemporary law which is designed to safeguard against inequality of bargaining positions.28 In other words, a contract or a commercial transaction can be aborted if the court finds inequality of bargaining position was a basis for the stronger party to coerce the weaker party into an arrangement he or she may have consented to under duress. Kennedy also criticised Weber’s argument that the ideal type of law would be more objective and formal in terms of approaches to ‘intention’ and ‘good faith’ and that the law as it now stands favours ‘the need of the business community’ and in doing so enacts laws and ‘legal standards that will correspond to the needs of business practice’.29 Thus a formal logic which is the ideal type will dispense with this tendency to favour business communities and practices and will instead force the court to decide cases that are faired to the parties involved in a dispute. Kennedy argues that this aspect of Weber’s ideal type of law is ‘puzzling’ because the courts are required to decide the case on the basis of the facts and circumstances of the case.30 This approach prevents a strict application of law and permits the court to take into account the special and subjective circumstances of a consumer in a dispute against a business. In the absence of informal logic, Weber’s fear of dominant business laws favouring businesses would be realized.31 It can therefore be concluded that although Weber’s ideal type of law contemplates avoiding legal outcomes that unfairly favour business practices, formal approaches will not accomplish a fairer outcome. Although contemporary society is heavily driven by a consumer society, the law and legal studies have identified ways in which businesses can and do take advantage of consumers and is therefore heavily geared toward consumer protection. Formal codes do not always contemplate every scenario or situation that might arise in contemporary business dealings. Therefore gaps will always exist in the law and informal practices such as judge law making and flexible interpretation of statutes and previous rulings are necessary for achieving fair outcomes. Conclusion The ideal type of law is ambitious in its desire to promote certainty and predictability in law. This approach to legal studies and law in contemporary society however is virtually impossible. In contemporary society, changes occur due to consumption patterns and demands and globalization. Many of these changes are unpredictable and cannot always be contemplated by legislators. Therefore, a formal approach to law is not always possible, even in circumstances where it may seem so. A law today may need amendment or repeal tomorrow based on new technologies which change the way the law can be strictly applied. In order to avoid legislating each new development, it is necessary for laws to be left open to interpretation in many cases. Therefore the ideal type of law is inconsistent with the constant and persistent changes in contemporary society. Bibliography Textbooks Holton, R. and Turner, B.S. Max Weber on Economy and Society. (Oxon: Routledge, 1989). Kronman, A. T. Max Weber. (Stanford, California: Stanford University Press, 1983). Lempert, R.O. and Sanders, J. An Invitation to Law and Social Science. (Pennsylvania, Philadelphia: University of Pennsylvania Press, 1989). Journal Articles Barrozo, P. ‘The Great Alliance: History, Reason, and Will in Modern Law.’ (2015) 78(1) Law and Contemporary Problems, 235-270. De Sousa Santos, B. ‘Law: A Map of Misreading. Toward a Postmodern Conception of Law.’ (Autumn 1987) 4(3) Journal of Law and Society, 279-302. Desautels-Stein, J. and Kennedy, D. ‘Foreword: Theorizing Contemporary Legal Thought.’ (8 April 2015) 78(1) Law and Contemporary Problems, i-x. Ewing, S. ‘Formal Justice and the Spirit of Capitalism: Max Weber’s Sociology of Law.’ (1987) 21(3) Law & Society, 487-512, 488. Kennedy, D. ‘The Disenchantment of Logically Formal Legal Rationality or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought.’ (May 2004) 55 Hastings Law Journal, 1031-1076. McIntosh, D. ‘The Objective Bases of Max Weber’s Ideal Types.’ (October 1977) 16(3) History and Theory, 265-279. Trubek, D.M. ‘Toward a Social Theory of Law: An Essay on the Study of Law and Development.’ (November 1972) 82(1) The Yale Law Journal, 1-50. Statutes Indictments Act 1915. Read More