Research On Weber's Theory Of Formal Rational Law And Its Implications For The Construction Of Fully Rational Chinese Law

Formal rational law is the core of Weber's legal analysis and his most representative proposition of sociology of law. Weber believed that formal rational law is a unique feature of modern capitalist society and has a tremendous impact on the formation and development of Western capitalism. In his analysis of the ideal types of law, he proposed the concept of formal rational law and discussed the influence of economic, political, religious and legal factors on the formation and development of formal rational law. The most essential feature of formal rational law is the logical analysis of meanings of a strict system of rules. This type of law is a system of rules guided by universal rules with calculablity and oriented to formal justice. Moreover, it is unrelated to ethical and moral considerations in the process of intentional creation. It originated in the rational legal education in the schools and is compatible with modern capitalism. Weber's formal rational law has theoretical depth and provides the basis for social practice, but there are also many limitations. A correct understanding and evaluation of the reasonableness and limitations of his formal rational law can help construct fully rational Chinese law. Full rationality requires not only the development of both formal rationalitity and substantive rationality at the theoretical level, but also the harmonious unity of formal rationality and substantive rationality in legislative and judicial fields at the practical level.This dissertation consists of five chapters.Chapter One is the Introduction. In the introduction, the author first shows that Weber's formal rational law is the most important part of his sociology of law and then briefly introduces the proposition and content of this theory. The focus is on the tremendous influence of this theory on China and the West, especially its implications for the development of China's legal system. Then the author examines the representative views of Western scholars on Weber's theory and the status quo of this field of research in China. Based on the theoretical overview, this study attempts to carry out comprehensive, systematic analysis and evaluation of Weber's formal rational law theory in order to provide reference to the construction of fully rational Chinese law. Finally, the author briefly explains the framework of ideas and discussion of this research.Chapter Two provides an overview of Weber's formal rational law theory. In this chapter, the author starts the discussion with a key concept in Weber's theory, the rationality of law. The two components of the rationality of law, namely formal rationality and substantive rationality, are discussed. Then the relationship between the two is explained. In Weber's view, formal rationality and substantive rationality are always in irreconcilable tensions. On this basis, the author details the ideal types of law based on which formal rational law was proposed. Weber divided the legal system into four ideal types: formal rational law, formal irrational law, substantive rational law and substantive irrational law. The aim is to reveal the unique process of legal rationalization of Western law which is characterized by growing formal rationality, i.e., the process of gradually transforming from substantive rational law to formal rational law. The author then carries out a comprehensive study of the factors shaping the formation of formal rational law, including not only external factors such as economic, political, religious and others but also internal legal factors, among which the most important one is the way of legal education.Chapter Three analyzes the nature and main features of Weber's formal rational law. In this chapter, the author tries to clearly outline a theoretical picture of formal rational law, define the nature of this law, and summarize its main features based on Weber's complex legal thoughts. Firstly, the nature of formal rational law lies in the logical analysis of meaning of a strict system of rules. The combination of these two elements gives contemporary law the characteristic of formal rationality. Secondly, the main features of formal rational law are as follows: This type of law is a system of rules guided by universal rules; it has calculablity which is compatible with modern capitalism; it is formal justice oriented, which means that specific formal rules are applied to specific cases in the administration of justice; it is worked out intentionally based on a variety of reasons which serve the needs of changing the existing practice of social life; no ethical and other substantive factors were taken into consideration in the process of intentional creation; it comes from the rational legal education in schools, which directly affects the formation and development of formal rational law; it is consistent with the demands of formation and development of modern capitalism, and coexists with modern capitalism. The close links between them is also the focus of Weber's legal research.Chapter Four is analysis and critique of the limitations of Weber's formal rational law, on the basis of which, the construction of fully rational Chinese law is proposed. The limitations of formal rational law are discussed in three aspects. In terms of real world limitations, formal rational law as an ideal type of law is considered by Weber to be the premise for the formation and development of capitalism, but it is difficult to explain in the real world that the United Kingdom has become the birthplace of capitalism without formal rational law. In terms of historical limitations, since Weber's legal thoughts were constrained by the historical background, social reality and the status of legal research of the time, his formal rational law theory bears obvious mark of the times. In terms of system limitations, Weber focused only on the close relationship between formal rational law and modern capitalism and excluded other types of law, thus failing to notice this purely legal type may not be the most reasonable in other social systems. Through the analysis of Weber's formal rational law, the author believes that the development of laws in China must be based on our specific national conditions. It is necessary to give full consideration and proper treatment of our country's legal and cultural traditions, and at the same time, construct fully rational Chinese law based on the actual needs of the current social and economic development. Full rationality requires not only the promotion of both formal rationality and substantive rationality at the theoretical level, but more importantly the harmonious integration of them in legislative and judicial fields at the practical level.Chapter Five is the conclusion. It is both a summary of the whole study and a confident prospect of the legal development of China.