In the Grip of Freedom

by Boucock, Cary

• ISBN13: 9780802048042
• ISBN10: 0802048048
• Format: Hardcover
• Copyright: 2000-09-01
• Publisher: Univ of Toronto Pr

Summary

Faith in the utility and value of legal rights forms the political common sense of our age. With its profound breadth and insight into the modern condition, Max Weber's social and political thought is widely considered to be the most influential of the era. Legal phenomena play a centre-stage role in his account of the development of the West and the rationalism of modern social arrangements. Cary Boucock's "In the Grip of Freedom" examines the relationship between Max Weber's "Sociology of Law" and his interpretation of the structure and meaning of modern society. Weber's social and political thought is investigated in the context of developments in Canada which have followed the 1982 enactment of the Canadian Charter of Rights and Freedoms-namely, the movement toward a rights-oriented nation where broad social issues are routed through the courts, and the political self-understanding of the citizen becomes increasingly tied to a conception of the individual as a rights-bearing subject. Professor Boucock's text runs against the grain of conventional assessments of Weber's legal theory and its applicability to understanding contemporary legal developments. He explores the significance of Weber's sociology of law theories within the larger compass of his sociological thought and illustrates the significance of Weber's sociology for interpreting the social dimensions of present-day legal developments in Canada. Weber's work is a vehicle for understanding the social and legal practices of our own time, and thus, goes far beyond a simple interpretation of the great German thinker.

Author Biography

CARY BOUCOCK is Assistant Professor in the Department of Sociology and Anthropology at Concordia University in QuTbec.

Table of Contents

Acknowledgments	xi
Abbreviations	xiii
Introduction: Law and Modernity in Max Weber	3	(16)
The `Specific and Peculiar Rationalism of Western Culture'	19	(22)
The Formal Rationality of Modern Economic and Political Arrangements	19	(10)
Capitalism and the Instrumental Calculus of Profit	22	(4)
Bureaucracy and the Methodical Observance of Rules	26	(3)
Weber's Existential Epistemology	29	(10)
The Positivistic Character of Modern Values	33	(2)
The Normative Power of Individual Choice and Consent	35	(4)
The Conceptual Nexus of Formal Rationality and Value-Positivism	39	(2)
The `Specific and Peculiar Rationalism' of Modern Authority: The Problematic Relation between Modern Freedom and Domination	41	(40)
Weber's Typology of Legal Rationality	41	(3)
The `Specific and Peculiar Rationalism' of Modern Law	44	(10)
The Positivism of Legal Norms	45	(3)
The Formalism of Legal Relations	48	(3)
The Legalism of Modern Authority	51	(3)
Individual Autonomy and Formal Legal Rationality	54	(11)
The Legal-Rational Reconstitution of Normative Power	54	(5)
The Legal-Rational Reconstitution of Social Arrangements	59	(6)
Formal Legal Rationality versus Individual Autonomy	65	(11)
Contractual Association and the Problem of Substantive Autonomy	67	(4)
Modern Authority and the Problem of Substantive Justification	71	(5)
Weber's Disillusioned Affirmation of Formal Legal Rationality	76	(5)
The Developmental History of Modern Law	81	(25)
Legal Rationalization and the Rise of Modern Capitalism	82	(12)
The Belief in a Theodicy of Higher Law	86	(2)
Legal Domination and the Societalization of Power	88	(3)
The Demise of the Metaphysical Dignity of Law	91	(3)
The `Thorn' of Weber: Habermas and the Problem of Modern Authority	94	(7)
Legal Rationalization and the Juridification of Power and Authority	97	(2)
Recovering the Normative Rationality of Modern Law	99	(2)
The Heuristic Value of Weber's Disillusioned Realism	101	(5)
The `Dynamic' of Legal Rationalization: An Interpretation of Recent Trends in Legal Development	106	(25)
The Developmental Directions of Legal Rationalization	107	(17)
The Formalization of Social Arrangements	109	(7)
The Positivization of Value-Orientations	116	(8)
The Developmental `Dynamic' of Legal Rationalization: The Entanglement of Detached Selves and the Detachment of Entangled Individuals	124	(7)
The Constitutionalization of Individual Rights in Canada: A Case Study in the `Dynamic' of Legal Rationalization	131	(25)
The Rise of Judicial Forms of Political Power in the Rights-Oriented Polity	133	(11)
Formal Legal Rationality and the Problem of Value-Setting	136	(5)
Judicial Review and the Depoliticization of Value-setting	141	(3)
The Underlying Substantive Coherence of Charter Adjudication	144	(12)
The Selective Protection and Promotion of Individual Autonomy	145	(4)
The `Dynamic' of Legal Rationalization	149	(7)
The Limits of Formal Legal Rationality: An Interpretation of Weber's Theory of Modern Politics	156	(26)
The Countertendencies of Rationalization	157	(11)
The Dynamic of Charisma and Routinization: The Role of Value-Oriented Conduct in Cultural Innovation	159	(3)
Cultural Devitalization and the Reification of Values	162	(3)
Political Servitude and the Depoliticization of Value-Setting	165	(3)
Weber's Political Response to the Modern Condition: Articulating the Limits of Formal Legal Rationality	168	(14)
Weber's Institutional Formula for Subordinating Legal Rationality and Resisting the Routinization of Value-Setting	171	(5)
A Decisionist Ethic for the Politicization of Value-Setting	176	(6)
Conclusion: In the Grip of Freedom	182	(9)
Notes	191	(22)
Bibliography	213	(10)
Legal Cases	223	(2)
Index	225