>Reading Max Weber to Understand Foucault and Benjamin

>Recently I’ve been reading some of Weber’s masterwork Economy and Society, edited after his death by his widow Marianne, who appears to have had a big influence on its shape.  What I’ve been looking at is the section on sociology of law, in volume 2 of a rather large work.

One reason was to get some context for Foucault’s comments in his writings on antiquity that ‘juridification’ is a Medieval phenomenon.  Law in antiquity has a different status, we can to some degree grasp through the ‘techne’ of care of the self, of a self-government and regulation which is connected with political rights but is not instituted in law.  Weber provides a synthetic historical overview, which I presume Foucault was aware of, though he does not have much to say directly about Weber.  I can’t say too much about the accuracy of Weber’s overview, but his suggestions about the way that sacred law, secretive aristocratic law, informal popular norms, merchant agreements, and so on, merge in the Medieval growth of a legal state with a unified hierarchy of courts and laws, seems convincing to me.  Weber is sometimes considered very teleological, as imposing a unified goal on history.  Maybe strangely, I feel rather more impressed by the way that Weber shows many diverse phenomena combining in a way that has no obvious preceding logic.  I’m left with the feeling that the modern juridical state is more a patchwork of fragments, that official discourse keeps trying to conceal, rather than withe seamless triumph rational legality and hierarchical norms.  That is I find Weber rather Nietzschean and Foucauldian.

Another reason, for reading that bit of Weber was for some context to Walter Benjamin’s discussion of natural and positive law in ‘Critique of Violence’.  I’m not sure how aware Benjamin was of Weber’s texts but he must have had some awareness.  Anyway, coincidentally or not, I find Weber on law illuminating in reading Benjamin.  Benjamin emphasises the ambiguities of the distinction between natural and positive law, and Weber provides one way of thinking about this, though only one way, which is to think of natural law as becoming positive law when it is codified.  So customary law, the patchwork of laws from the past are the source of the idea of a natural law, a law which precedes state codification in positive laws, starts becoming positive law as soon as it is conceived as Natural Law, as law in itself, and that is confirmed by state attempts to codify natural law.  The American Constitution and the French Declaration of the Rights of Man and Citizen are obvious examples.

I think I need to look at Carl Schmitt’s comments on law and constitutionalism to complete this contextualisation, but that will be another post.  Maybe Hayek as well, he was interested in Schmitt’s position, though not exactly an enthusiast for Schmitt;’s political philosophy.  Soon I hope.

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