Book Review: Boucock, Law and Modernity in Max Weber

Cary Boucock.
In the Grip of Freedom: Law and Modernity in Max Weber.
Toronto: University of Toronto Press, 2000, 230 pp.
$Cdn. 60.00 (cloth) $Cdn. 24.95 (paper)

Cary Boucock has made an interesting contribution to the sociology of law in this exploration of the assistance which Weber’s work might offer us in understanding and explaining developments in the modern legal order. He has written a tight, occasionally dense, but mostly pithy account of Weber’s sociology of law and modernity and sets out a provocative thesis about the role and significance of fundamental human rights and a ‘rights’ culture in the increasing formal rationality of modern Western legal systems.

Boucock contends, in short, that the concept of human rights – “the centrality of rights conceptions in contemporary moral vocabulary” (p. 117) – clothes individual autonomy with moral significance in a secular modernity. Following the disintegration of the shared values of tradition and custom, individuals have been set free to choose values. Individuals must now choose the ends or purposes which are to be served by increasingly formally rational legal systems. The notion of fundamental legal rights lends weight to and supports this individual autonomy.

Legal rights facilitate individual autonomy by providing moral authority for individuals to take a variety of value-oriented stances that would otherwise suffer from a deficit of authority. (p. 117)

Human rights, however, have the additional function of protecting individuals from the potentially oppressive ends or purposes chosen by other individuals in society – a protection from the tyranny of the majority. At this point in Boucock’s argument there seems to be an obvious problem. Surely, the introduction of fundamental human rights into our legal systems signifies a shift towards substantive rationality in law – an assertion which sits in tension with his central defence of Weber’s sociology of law which states that the legal systems of modern capitalist countries are in the process of an increasingly formal legal rationalisation. Boucock resolves this tension, however, by examining the actual operation of fundamental rights in our legal systems. When we actually look at how fundamental legal rights are adjudicated, he contends, we can see that they function to increase the formal rationality of the legal system and in reality increase the predictability and calculability of the legal environment for capitalist enterprise. Boucock does not regard the rise of human rights as part of an inevitable tension between formal and substantive rationality within law even where formal rationality dominates. 1 He takes the stronger line that the rise of human rights is instrumental to the increasing formal rationality of law.

He supports this contention by examining Canadian Supreme Court decision-making regarding the fundamental rights enshrined in Canada’s Charter of Rights and Freedoms. The Charter rights have been interpreted as relating only to public agencies and enterprises. The ‘private’ operations of big business, then, have been exempted from the ambit of the Charter. In areas of social and economic policy, therefore, the Charter increases the legal predictability and calculability of economic transactions and represents an instrument for increasing the formal rationality of economic relations:

By limiting Charter application to the public realm and government activities, the major source of inequality and individual powerlessness in Canadian society – the distribution of wealth and the lack of accountability for how wealth is made and deployed – is excluded from Charter scrutiny. As a result, the judiciary ignores primary causes of social injustice in its determination to restrain the arm of the state best equipped to redress those causes: the democratic limb represented by the legislature and the executive (p. 150).

Boucock thus presents a challenging thesis concerning the function of legal rights in supporting individual autonomy and increasing formal legal rationality. There are, however, some criticisms which can be made of his argument. Boucock is making a general point about developments in modern Western legal systems. His particular focus on Canada is intended to illustrate a general point. His discussion of Canadian jurisprudence, however, constitutes too narrow a focus. An exploration of Europe and of the UK in particular (where human rights have recently been introduced into our constitution) would, for example, be an important test of his thesis about the functioning of human rights. Unlike the position in Canada, human rights in Europe do apply to private matters, in part because the courts as public bodies are required to develop the law (including private law) in a way which is compatible with Convention rights.2 Boucock’s thesis is, accordingly, weakened by the lack of a comparative perspective.

However, there is a second, perhaps more important, sense in which Boucock’s focus is too narrow. He claims that Charter adjudication has increased the predictability and calculability of the legal environment for capitalist enterprise. This is an empirical claim. However, the only data he offers in support are the decisions of the Supreme Court. This is insufficient for such a strong claim. One must look at the impact of court decisions upon the operations of business and government. Indeed, one must first explore the legal consciousness within business and government agencies and the significance of that consciousness to routine operations. ((Empirical work suggests that the predictability of law which assists capitalist enterprise may arise by virtue of law’s manipulability rather than any formal rationality.3) Further, consciousness about legal rights does not simply emanate from the Supreme Court. Although doctrinally the Supreme Court is of primary significance for the development of the law, actors’ encounters with ‘law’ are likely to come from alternative and multifarious sources – inter-party negotiation, regulation, ombudsmen, tribunals, etc. This opens up the possibilities of differing conceptions of legal rights and potentially reduces the empirical significance of Supreme Court jurisprudence. In short there is a large empirical element missing from Boucock’s thesis which would substantially strengthen or weaken his argument.

Nevertheless, Boucock has offered the sociological literature a considered and challenging thesis which is very much worthy of our attention and which will hopefully provoke detailed empirical reflection.

Simon Halliday
Centre for Socio-Legal Studies
Oxford University
simon.halliday@csls.ox.ac.uk

²See, for example, Starmer, K. European Human Rights Law (London: Legal Action Group, 1999)

³ See, for example, McBarnet and Whelan (1991) ‘The Elusive Spirit of the Law: Formalism and the Struggle for Legal Control’ Modern Law Review, vol. 54, pp. 848-73



		Canadian Journal of Sociology Online September - Octobert 2001 Cary Boucock. In the Grip of Freedom: Law and Modernity in Max Weber. Toronto: University of Toronto Press, 2000, 230 pp. $Cdn. 60.00 (cloth) $Cdn. 24.95 (paper) Cary Boucock has made an interesting contribution to the sociology of law in this exploration of the assistance which Weber’s work might offer us in understanding and explaining developments in the modern legal order. He has written a tight, occasionally dense, but mostly pithy account of Weber’s sociology of law and modernity and sets out a provocative thesis about the role and significance of fundamental human rights and a ‘rights’ culture in the increasing formal rationality of modern Western legal systems. Boucock contends, in short, that the concept of human rights – “the centrality of rights conceptions in contemporary moral vocabulary” (p. 117) – clothes individual autonomy with moral significance in a secular modernity. Following the disintegration of the shared values of tradition and custom, individuals have been set free to choose values. Individuals must now choose the ends or purposes which are to be served by increasingly formally rational legal systems. The notion of fundamental legal rights lends weight to and supports this individual autonomy. Legal rights facilitate individual autonomy by providing moral authority for individuals to take a variety of value-oriented stances that would otherwise suffer from a deficit of authority. (p. 117) Human rights, however, have the additional function of protecting individuals from the potentially oppressive ends or purposes chosen by other individuals in society – a protection from the tyranny of the majority. At this point in Boucock’s argument there seems to be an obvious problem. Surely, the introduction of fundamental human rights into our legal systems signifies a shift towards substantive rationality in law – an assertion which sits in tension with his central defence of Weber’s sociology of law which states that the legal systems of modern capitalist countries are in the process of an increasingly formal legal rationalisation. Boucock resolves this tension, however, by examining the actual operation of fundamental rights in our legal systems. When we actually look at how fundamental legal rights are adjudicated, he contends, we can see that they function to increase the formal rationality of the legal system and in reality increase the predictability and calculability of the legal environment for capitalist enterprise. Boucock does not regard the rise of human rights as part of an inevitable tension between formal and substantive rationality within law even where formal rationality dominates. 1 He takes the stronger line that the rise of human rights is instrumental to the increasing formal rationality of law. He supports this contention by examining Canadian Supreme Court decision-making regarding the fundamental rights enshrined in Canada’s Charter of Rights and Freedoms. The Charter rights have been interpreted as relating only to public agencies and enterprises. The ‘private’ operations of big business, then, have been exempted from the ambit of the Charter. In areas of social and economic policy, therefore, the Charter increases the legal predictability and calculability of economic transactions and represents an instrument for increasing the formal rationality of economic relations: By limiting Charter application to the public realm and government activities, the major source of inequality and individual powerlessness in Canadian society – the distribution of wealth and the lack of accountability for how wealth is made and deployed – is excluded from Charter scrutiny. As a result, the judiciary ignores primary causes of social injustice in its determination to restrain the arm of the state best equipped to redress those causes: the democratic limb represented by the legislature and the executive (p. 150). Boucock thus presents a challenging thesis concerning the function of legal rights in supporting individual autonomy and increasing formal legal rationality. There are, however, some criticisms which can be made of his argument. Boucock is making a general point about developments in modern Western legal systems. His particular focus on Canada is intended to illustrate a general point. His discussion of Canadian jurisprudence, however, constitutes too narrow a focus. An exploration of Europe and of the UK in particular (where human rights have recently been introduced into our constitution) would, for example, be an important test of his thesis about the functioning of human rights. Unlike the position in Canada, human rights in Europe do apply to private matters, in part because the courts as public bodies are required to develop the law (including private law) in a way which is compatible with Convention rights.2 Boucock’s thesis is, accordingly, weakened by the lack of a comparative perspective. However, there is a second, perhaps more important, sense in which Boucock’s focus is too narrow. He claims that Charter adjudication has increased the predictability and calculability of the legal environment for capitalist enterprise. This is an empirical claim. However, the only data he offers in support are the decisions of the Supreme Court. This is insufficient for such a strong claim. One must look at the impact of court decisions upon the operations of business and government. Indeed, one must first explore the legal consciousness within business and government agencies and the significance of that consciousness to routine operations. ((Empirical work suggests that the predictability of law which assists capitalist enterprise may arise by virtue of law’s manipulability rather than any formal rationality.3) Further, consciousness about legal rights does not simply emanate from the Supreme Court. Although doctrinally the Supreme Court is of primary significance for the development of the law, actors’ encounters with ‘law’ are likely to come from alternative and multifarious sources – inter-party negotiation, regulation, ombudsmen, tribunals, etc. This opens up the possibilities of differing conceptions of legal rights and potentially reduces the empirical significance of Supreme Court jurisprudence. In short there is a large empirical element missing from Boucock’s thesis which would substantially strengthen or weaken his argument. Nevertheless, Boucock has offered the sociological literature a considered and challenging thesis which is very much worthy of our attention and which will hopefully provoke detailed empirical reflection. Simon Halliday Centre for Socio-Legal Studies Oxford University simon.halliday@csls.ox.ac.uk ¹See, for example, Economy and Society, pp. 885-89 ²See, for example, Starmer, K. European Human Rights Law (London: Legal Action Group, 1999) ³ See, for example, McBarnet and Whelan (1991) ‘The Elusive Spirit of the Law: Formalism and the Struggle for Legal Control’ Modern Law Review, vol. 54, pp. 848-73 http://www.arts.ualberta.ca/cjscopy/reviews/grip.html September 2001 © CJS Online