THE ENGLAND PROBLEM AND ITS CONTRIBUTION TO CAPITALISM
Max Weber was an America philosopher who sought to explain the interconnection between the society, law and the economy. According to Weber, Western civilization had the most synthetic form of social structure.
Weber had pointed out that the England society had no rationality. This is because law and order in most of the western countries were according to a mixture of open procedures and impersonal rules. For instance, most of the judicial rulings were based on personal experience and were influenced mainly by factors such as ethnicity and politics. This meant that the justice was arbitrary and unpredictable.
According to Weber reasoning, the socio-legal authority Relied on charismatic authority such as an extraordinary leader who might be in possession of unique qualities.
Weber also draws some differences between irrational legal thoughts and rational legal thought. According to Weber irrational thoughts are those that are beyond the controls of the intellect. Their verdict is given with reason to justify and has minimum guidance in predicting future outcomes while a rational system is a more of egocentric system of ruling
The securitization of law paved for the growth of industrialization. The secularization of the law promoted capitalism this is because it provided a predictable and stable set of rules and the legislations favored certain economic activities.
Weber was surprised that Germany had developed industrial capitalism many years before it had was observed in other parts of the continent. The Germany law was a wrong system because the England professions were traditional and they were regarded as irrational since they were based on connections, and it was hard to join the legal profession and the judges promoted were close to the king. The laws made were mostly aimed at favoring high-class citizens and was more oppressive to the poor. The lawyers were serving the rich people, and also the judge’s ruling inclined on
MECHANICAL SOLIDARITY AND ORGANIC SOLIDARITY
According to Emile Durkheim, mechanical solidarity involves members of a small traditional community with strong bonding, and they are religious. There were little industrialization and few incidence in the division of labor. The primary economic activity was farming.In mechanical solidarity, there was strong bonding, and the collective consciousness was high (Durkheim, 2014).
Organic solidarity describes the modern society. The explanation is because people possess different talents and as such there was the division of labor. The division of labor promoted the need for cooperation. Organic solidarity was about how large industries were established. Organic solidarity brought about cultural diversity and the society lacked a common moral outlook. Organic solidarity led to increased crime rate and trafficking of illegal drugs. Durkheim pointed out that there is an evolutionary movement from mechanical to organic (Durkheim, 2014).
From the mechanical solidarity. The law in use was repressive. This law was centered on emotion and was centered on vengeance. There was also the use of ritual punishment which was aimed at allowing one to reaffirm his commitment to the community norms this law was more perceived as dictatorial (Durkheim, 2014).
The restitutive law was widely in organic solidarity. In this case, the law was aimed at restoring the society back to their organic positions; there was compensation for damage or any injury caused to an individual, Punishment was less severe as the society was more democratic and punitive measure adopted were imprisonment and loss of liberty (Durkheim, 2014).
LEGAL FORMALISM AND LEGAL REALISM
According to Professor Horwitz, legal formalism emerged as a result of the merchant class increasing their political and economic power and thus began forming alliances with the legal profession team. The merchants thus used their influence to promote liberal political theories. The United States primary legal system had the elements of non-interference that is to mean that the court could not interfere with their business and the legal outcome of the would be more predictable. Legal formalism was based on hiding the facts the law was promoting economic self-interest and discouraged competition. Formalism also gave the law the logical appearance and had a neutral body of rules (Tushnet. 1987).
The critics leveled against the formalism led to the birth of legal realism. The custodians of this school were the judiciary which was the task of creating law, and also implementing the legislation so that the society could achieve its objectives; the law was dynamic but not static as it was responding to the various changes in the society. This meant that the law required constant amendment as the society was changing faster than the law. This school has influenced the legal education and practice (Tushnet. 1987).
According to Weber, the rational law was a self-contained system of a rule while in irrational law verdicts were determined with reasons that verified them. Irrational laws had minimum guidance on how future outcomes were predicted. The rational codes were regarded as the private systems in the vast Europe continent (Satow .1975).
Charismatic v. rational -legal authority involved an extraordinary leader such as a prophet. Relied on emotions and the law given by the leaders was highly subjective and personal.
Secularization of the law enhances capitalist as it provided predictable rules and legislation was created to encourage certain economic activities (Satow .1975)
Durkheim, E. (2014). The division of labor in society. Simon and Schuster.
Satow, R. L. (1975). Value-rational authority and professional organizations: Weber’s missing type. Administrative Science Quarterly, 526-531.
Tushnet, M. (1987). The Concept of Tradition in Constitutional Historiography.Wm. & Mary L. Rev., 29, 93.
Weber, M. (2009). The theory of social and economic organization. Simon and Schuster.