On The Freedom Of Contract:The Dominance In Weber’s Theory

For Weber,the legal domination is one of the ideal domination types,and the formal rational law is the basis of its legitimacy.Under the formal rational law order,the law presents a systematic,logical and clear system,the subjective right of the person as much as possible from the law,freedom becomes the "axiom" in the law.Weber in diagnosis of modern rational system,but with the rational "cage",believed that in the modern system,as the gear,with the main wheel mechanical operation,individual freedom will be subject to the institutionalization of muzzle。There is no doubt that the theory of Weber contains a "paradox" about individual freedom and power obedience.Since Machiavelli,politics has never been considered to contain a moral virtue,but it is a power struggle in fact,Weber is deeply influenced by it."Domination and obedience " is the basis of the legitimacy of Weber’s political domination,and "obedience" has a free will factor,which is destined to be difficult to become a political purpose.This article discusses the relationship between "freedom of contract" and "dominance" in the background of modern rational law order.Weber argues that under the modern legal order,the degree of individual freedom is measured primarily by how much rights are entitled in objective law.The main principle of subjective right is "freedom of contract",That is a kind of "authorized" legal proposition.The content of the contract is changed from the "identity contract" which initially emphasizes identity and rank,and is gradually changed to the purpose of "purpose contract" which only obtains concrete resources and utility.This rational transformation makes the social relations regulated by law towards the development of the contractual society,and the free development of the law itself towards the contract.However,The pattern of political domination is often in the pursuit of the development logic of power,because The modern single state monopolizes the legislative power of other groups,become the only legal experts,the state in the request for their own "legitimacy",Subjective rights as the carrier of power,must become the object of the interest group or the dominant power,The law will also serve as a technical tool for the interests of stakeholders,which led to the result of "freedom of contract" will no longer be free.Obviously,the highly formal rational order of law has threatened Western liberalism.Theformal rational law has become a kind of technical device in the state rule mode.Under the order,the conception of subjective right means that the possession of power,the rulers often use the "authorized" proposition to achieve the sharing of political power and distribution.How to avoid the rational order of freedom control,the author believes that: First,the rational factor is injected into the formal rational law,with a full rational law as the basis of the legitimacy of modern politics;the second is to emphasize a responsibility ethics,Kind of internal social responsibility or accomplishment to achieve the continuation of political strength.