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An Interpretation of Max Weber's Theory of Law: Metaphysics, Economics, and the Iron Cage of Constitutional Law


  • Stephen M. Feldman

    1. Associate professor at the University of Tulsa College of Law. J.S.M., Stanford Law School, 1986; J.D., University of Oregon, 1982.
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  • The author thanks David Trubek, Richard Delgado, John Hart Ely, Mark Tushnet, Gero Lenhardt of the Max Planck Institute, Tom Arnold, Taunya Banks, David Clark, and Laura Feldman for their helpful comments on earlier drafts.


Among legal scholars, Anthony T. Kronman and David M. Trubek have provided the leading interpretations of Weber's theory of law. Kronman and Trubek agree on two important points: Weber's theory is fundamentally contradictory, and Weber's theory relates primarily to private law subjects such as contracts. This article contests both of these points. Building on a foundation of Weber's neo-Kantian metaphysics and his sociological categories of economic action, this article shows that Weber's theory of law is not fundamentally inconsistent; rather it explores the inconsistencies that are inherent within Western society itself, including its legal systems. Furthermore, Weber's insights can be applied to modern constitutional jurisprudence. Weberian theory reveals that modern constitutional law is riddled with irreconcilable tensions between process and substance—between formal and substantive rationality. In the context of racial discrimination cases involving equal protection and the Fifteenth Amendment, the Supreme Court's acceptance of John Hart Ely's theory of representation-reinforcement demonstrates the Court's resolute pursuit of formal rationality, which insures that the substantive values and needs of minorities will remain unsatisfied.

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