In the Grip of Freedom: Law and Modernity in Max Weber. (Book Reviews/Comptes Rendus)

Article excerpt

Cary Boucock, In the Grip of Freedom: Law and Modernity in Max Weber. Toronto: University of Toronto Press, 2000, 230 pp., $60 cloth; $24.95 paper.

Max Weber's analysis of modern law is among the least familiar aspects of his sociological oeuvre. This is not surprising. Unlike Weber himself, who was a qualified lawyer accredited to practice in Berlin, most sociologists lack both legal training and, it would appear, legal curiosity. Combine that with the forbidding character of Weber's dense and convoluted propositions, and you have a kind of collective incomprehension that does not apply to, for instance, the writings on the sociology of religion. For a long time, we have needed a book that both clarifies the intricacies of Weber's legal theory and connects them to his wider comparative sociology. Gary Boucock's in the Grip of Freedom does just that--and more, by offering a bracing reconstruction of one of Weber's more disturbing findings.

The first two thirds of the book comprise a lucid account of a paradox that Weber discerned at the heart of modern life. Modern, capitalist society enables an unprecedented degree of freedom. The formal-positive legal rationality, that both preceded capitalism and that is now symbiotically bound up with it, helps produce a self that is typically unencumbered by fixed, ascribed role expectations. Under such a regime, individuals are deemed autonomous to the extent that they are socially atomistic, mobile, and purposively oriented by mean-ends calculation. Rational legality is formal in the sense that it is depersonalised and abstract, indifferent to the substantive normative obligations of kin and community, and aimed at maximizing the predictability, calculability and transparency of social arrangements. Correspondingly, rational legality is positive in the sense that it derives legitimacy from the belief that legal norms are derived from "correct enactment and individual consent" (p. 10).

Taken together, formal-positive legal rationality enjoins us to obey the rule of law not the rule of man, to comply with paragraphs not sentiments, and to treat judicial idiosyncrasy as a blot on the social landscape. This legal development and its associated model of personhood have enabled modern people to escape the injuries and rigidities of tradition-bound societies. In such ways, we are free to exercise choices that, previously, did not exist. The problem is that the quest to liberate the ostensibly sovereign self from unwelcome encumbrances, to enhance control over our relationships and our environments, entraps us within legal and other rules that create new forms of coercion and dehumanisation. Just as bureaucratization has spread over most forms of modern organizations, so, with it, legal impersonality has become the template of our relationship with others. Modern individuals, caught "in the grip of freedom," are liberated from traditional ascriptions and personal domination. Yet divested of commun al attachments and existential certainties, they are obliged to inhabit a world that is inhospitable, governed by techno-managerial forms of reason, and ever more subject to rules and regulations of baffling and proliferating complexity.

The rights-oriented polity, far from loosening the grip of freedom, actually serves to tighten it. In an epoch where sacred norms have been disenchanted and secularised, the quest for rights is a post-traditional means of grounding "objective" validity claims. Yet in seeking to acquire such rights so as to expand or entrench autonomy, individuals give increasing power to the regulatory state apparatus and to the judiciary. The regulatory state is, of course, required to sanction the law; the judiciary has a vital role to play in establishing justice. But a major concern of Weber's is the developmental tendency of modern states to remove issues properly disputed in a political arena, among citizens and their legislative representatives, and to make them instead the province of judicial decision-making. …