The Promise and Paradox of Max Weber‘s Legal Sociology: the ―categories of Legal Thought‖ as Types of Meaningful Action and the Persistence of the Problem of Judicial Legislation

Unsurpassed in its ambition and historical scope, Max Weber‘s legal sociology centers around the four ―categories of legal thought‖ that follow from his distinction between formal and substantive modes of rationality and irrationality in the conduct of lawfinding and lawmaking activity. At the same time, Weber‘s general sociology is built around four ideal types of possible meaningful conduct by individual actors, ranging from the instrumentally rational to the affective. Despite its visibility, the lack of meaningful connection Weber makes between these two categorical schemes has never adequately been remedied or even explained by his inheritors. This article seeks to do both by arguing that a clearer perspective can be gained on Weber‘s sociology of law by reconstructing his categories of legal thought in terms of his ideal types of meaningful action. Considered, instead, as ideal types of legal action by juristic actors in the course of undertaking lawmaking and lawfinding activity, Weber‘s categories of legal thought not only are rendered more intelligible but also more powerful in scope. For viewed in this way, Weber‘s choice of conceptually segregating the categories of legal thought from his general sociology of meaningful action is revealed as a precocious, even if ultimately unsuccessful, tactic for solving the problem of judicial legislation. In this way, Weber‘s legal scholarship was not just sociological but driven by much of the same concern that continues to preoccupy scholars of legal theory and jurisprudence into our own day. Therefore, the limitations of his solution are not simply of historical interest but vitally relevant to understanding the ongoing difficulties that have plagued our * Class of 2011, Ph.D. in History, Department of History, Harvard University, focusing on the relationship between legal change in British India between the late eighteenth and late nineteenth centuries; J.D. 2003, Harvard Law School. Thanks goes to the several colleagues and fellow researchers at Columbia Law School, where the first completed draft of this article was circulated and presented for comment while the author was a fellow at Columbia Law School‘s Center for the Study of Law and Culture. 250 Southern California Interdisciplinary Law Journal [Vol. 20:249 own contemporary attempts at elaborating an adequate philosophy of legal reason.