Max Weber (1864-1920) is a famous sociologist in the modern West, he is profound in thought, knowledgeable, and has a special discussion of legal issues, called "legal sociology", extensively discussing the law, especially the legality and rationality of law, and has a far-reaching impact.
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(1) Human society
When Weber studied society, he had two characteristics in methodology: First, the attitude of scientific socialism. He tried to construct his social theory with the narrow understanding of the word "science" by the scientific trend of the time: only the study of value facts does not study value; only explanation and no evaluation, also known as "interpretive sociology". The second is to introduce legitimacy and rationality as tools to analyze human behavior and social order. He believed that human behavior is characterized by purposefulness, but not all purposes are justified, only with the purposes of others, only the purposes that can promote the common interests of society are legitimate.
(2) Human behavior and social type
1. Charismatic (Chrismatic Karima or Karisma) type rule. It is "built on the sanctity, or heroism, or the italic board of extraordinary devotion to a man and the institutions he has inspired and created." Weber believed that this kind of domination, both in substance and form, was irrational and unspeakable, and was the purest kind of man-ruled society.
2. Traditional rule. It is based on universally recognized traditions of sanctity that have always existed and on the legitimacy of rulers who have been ordained by tradition to exercise authority. Weber believes that this kind of rule has substantive rationality, but its legal form has not yet been rationalized, the status of law is not high, and it still belongs to the society ruled by man.
3. Legal society. That is, the modern rule of law society, which is ruled by a professional legal person according to a set of legal rules of formal rationality, in which the position of individual factors in the rule is reduced or excluded, that is, only by the well-trained legal person by implementing a set of logical and rigorous rules to govern.
Weber points out that all three types are idealistic pure types, and they have often been intertwined throughout history, but modern society is the era of great development of the rule of legitimacy.
(3) Law
1. Law and legal order. Weber understands law from the perspective of social order, saying that law is only a part of social order, and legal order is the activity of specific institutions to formulate and enforce rules, including legislative, law enforcement, executive, and judicial activities. The peculiarity of the legal order is that its enforcement is carried out through a set of specialized institutions.
2. Historical types of law. According to the concept of rationality, Weber divided the development of law into four types: one is the divinely enlightened legal stage, that is, the law of formal irrationality, which is conveyed by the prophets of law; the second is the legal stage declared by the legal sage, that is, the law of substantive irrationality; the third is the law imposed by secular or religious authority on the civil stage, that is, the law of substantive rationality; and the fourth is the elaborate systematic legal stage by professional jurists, that is, the law of formal rationality. These four types of laws are actually the four historical stages of the development of law, which means that the development of law has gone through a process from irrational to rational, from substantive rationality to formal rationality.
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(1) The legality of the law
Marx Weber's discourse begins with the general concept of legitimacy. He argues that any kind of political rule must try its best to advertise itself as "legitimate" and evoke faith in the "legitimacy" of its rule. This is because any true relationship of domination involves a minimum desire to obey, that is, to reap the benefits of obedience.
This legal rule is linked to the state and the law, and only the "state" can "legally" exercise any coercive force available to other communities by way of order and permission. The implementation of this coercive force has formed a set of "legal order". The political community that exercises coercion is seen as the sole formulator of this legal order, because in modern times it already has a monopoly power to apply these rules backed by coercive power.
According to Marx Weber, the question of legitimacy actually refers to the question of the application of the system. Whether a system can be applied or recognized depends on several factors: a. based on tradition; b. dedication based on emotional beliefs; c. beliefs based on the rationality of values; and d. based on existing charters.
(2) The reasonableness of the law
The first person in the West to discuss the rationality of law was Max Weber. He said that law was formal in that only facts of a conclusive general character were considered in both substantive and procedural terms. This form has the following four characteristics:
(1) It consists of a formalized set of legal provisions of clear meaning, rather than religious orders, ethical norms and customs;
2. These provisions have been systematized;
(3) The legal concepts that make up these regulations are semantically clear and can withstand logical analysis;
4. These regulations can be "rationally controlled", freed from mysterious methods and means.
In short, the law of formal rationality by Max Weber refers to a set of logically rigorous, operable and clear rules formulated by modern legislatures with strict procedures and applied by specialized judicial organs.