Weber, Kelsen, and the Rule of Law: Liberal Ideologiekritik?

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Weber, Kelsen, and the Rule of Law: Liberal Ideologiekritik?

Stephen P. Turner, Department of Philosophy FAO 226, University of South Florida,
4202 E. Fowler Ave., Tampa, Fl 33620
turner@usf.edu

Stephen Turner is Graduate Research Professor of Philosophy at the University of South Florida, the co-author of Max Weber: the Lawyer as Social Thinker, the editor of The Cambridge Companion to Weber, as well as twenty other books in the history and philosophy of social science, political theory, and methodology; most recently Making Democratic Theory Democratic: Democracy, Law, and Administration after Weber and Kelsen (Routledge, 2023).

Max Weber and Hans Kelsen may seem unexpected sources for a discussion of the rule of law. Neither addresses the issue directly, despite being contemporaries of people like Dicey who made it a central concern. Both, however, were engaged in projects that bear directly on the concept of the Rechtsstaat, the German language version of the rule of law1. Both approached the problem of law from the point of view of methodology, a rarity in the rule of law literature. Indeed, what Kelsen and Weber share is their agreement that the starting point for a discussion of the law is epistemic: a discussion of what the law is, as a knowable object. This is a question that is largely missing from the extensive literature on the rule of law. Each had strong methodological reasons for avoiding the terms Rechtsstaat and Rule of Law: they regarded them, and many of the other terms in the discourse of law and legal philosophy, as ideological and problematic.

Yet both Weber and Kelsen haunt this literature. The distinctive language they used in discussing the law reappears with regularity in the literature, usually without mentioning them by name2. So do their distinctive concerns3. So why did they decline to embrace what has become a standard topic in discussions not only of the nature of legal order but of social and political orders as well? For Weber, the answer is straightforward: he discusses it under a different heading. As part of his typology of forms of legitimate rule, he included “rational-legal

authority,” which is a formulation of the main features of the Rechtsstaat with the valuative overtones removed. His account of rational-legal authority placed “calculability,” which appears as “predictability” in standard lists of characteristics of the rule of law, in a central position, and his historical writings treat the separation of office and person as one of the defining features that distinguish Occidental political and legal orders from those found elsewhere4: this is the distinction between the rule of law and the rule of men as it can be grounded in the history of law and administration. As we will see, for Kelsen, there is a similar answer, grounded elsewhere: in purely legal considerations.

Core Methodological Issues

To the extent that they figure in the discussion of the rule of law, these accounts have generally been dismissed as insufficient, though they have rarely been critiqued as accounts of the rule of law itself. Instead, the critics have objected to the approaches themselves. The critiques often have a straw man character, but they nevertheless reflect fundamental metaphilosophical or methodological issues. For someone like Joseph Raz, a former student of H. L. A. Hart and a Kelsen revisionist, understanding the rule of law can be treated as an exercise in analytic philosophy: one can give or debate definitions, and refine the definitions through counterexamples which we have intuitions about5. Weber and Kelsen approached the problem in a radically different way. For them, such notions as the Rechtsstaat were ideologically encrusted, historical half-truths, only partially emancipated from their origins in religiously-tinged natural law thinking, with misleading affective associations that had developed in the longue durée of political and philosophical contestation, which sufficed neither as sociological nor legal ideas– nor indeed as adequate factual descriptions in any wissenschaftliche or disinterested scholarly setting6. Having intuitions about such things or their essences was of no interest to either of them: their goal was to strip them of their ideological content to get down to their factual core.

They pursued this project systematically under the heading of the relation between sociology and jurisprudence. Weber, who was both a lawyer and trained and habilitated as a historian of law in a faculty of law, repeatedly returned to the theme. It was the subject of his Critique of Stammler7 and appears in many of his other writings8. It was also, perhaps surprisingly, a major concern for Kelsen, who also took it up repeatedly throughout his writings9 and even devoted a separate book to it,10 and to an astonishing extent it was a concern to Kelsen’s circle in Vienna, many of whose participants were interested in the possible relations of Sozialwissenschaft to the law and to the idea of a realistic study of the law11. Moreover, it was a concern for Kelsen from the start of his career. He wrote an extensive critique of Eugen Ehrlich’s supposedly “sociological” approach to legal theory in 1915 on the grounds of Ehrlich’s confusion of fact and value12. His reasoning was identical to that found in the arguments that Weber had been presenting over the previous decade, and was published in the journal with which Weber was associated. At the end of his life, Kelsen wrote a highly polemical response to Eric Voegelin’s critique of Weber which reiterated the same themes—themes that were also central to Kelsen’s conception of the subject matter of legal philosophy13.

To what extent, and how, did Kelsen diverge from Weber, and what are the implications of the intellectual division of labor between sociology and jurisprudence? A preliminary answer to this question that can orient the discussion of the methodological issues would be this: there is a sharp difference, but behind the difference there is substantial common ground14. The sharp difference is over “validity.” Kelsen’s “pure theory of the law” was an attempt to retain some concept of legal validity in a theory of the law that was otherwise purged of ideological, valuative, and non-legal elements. Weber treated “validity” as itself an ideological or valuative concept, though he said, as we will see, a great deal about the subject that is closer to Kelsen than it initially seems.

Weber’s account of the fact-value distinction reflected basic considerations about rationality. Rationality for him was limited to determining consistency (which could include the consistency of value choices and the explication of value-axioms), causal analysis, which included the factual determination of whether the means could produce the relevant ends (instrumental rationality), and calculation and deduction15. One valuative claim can, for Weber, justify another, but ultimate values themselves cannot be rationally justified. A passage from Weber’s close Viennese friend and admirer Joseph Schumpeter is quoted by Isaiah Berlin: “to realize the relative validity of ones convictions, and yet stand for them unflinchingly is what distinguishes a civilized man from a barbarian.” Berlin comments that “To demand more than this is perhaps a deep and incurable metaphysical need; but to allow it to determine one’s practice is a symptom of an equally deep, and more dangerous moral and political immaturity.”16 These are Weber’s views. They were also Kelsen’s views with respect to value questions, as he reiterated in many places17. Value choices are often concealed, for example in notions like “progress,”18 and it is part of the task of the “scientific” analyst to expose these hidden value commitments. Weber and Kelsen agreed on this as well. But Kelsen was a normativist with respect to the law itself. This places him in a unique position, and its uniqueness is central to understanding how he differed from his peers and also how he relates to Weber.

Weber formulated the distinction between the normative and factual aspects of the law in terms of the contrast between the history of the law and jurisprudence, which he understands in terms of the distinction between “nature” and “ideal meanings”: “‘nature’ refers to the totality of empirical being in general. Therefore it follows that, from the standpoint of logic, the ‘history of law’ is a ‘naturalistic’ discipline too. This is because its object is the facticity of the legal norm and not its ideal meaning.”19 Traditional jurisprudence, in contrast, is a dogmatic science, which “establishes what is valid according to the rules of juristic thought, which is partly bound by logically compelling arguments and partly by conventionally given schemata. Juridical thought holds when certain legal rules and certain methods of interpretations are recognized as binding.”20 In dogmatic “sciences” the relevant dogmas could be systematized, made consistent, and so forth, and this could be done “scientifically” by treating the structure of legal dogma as the intellectual object of interest.

The juridical point of view or, more precisely that of legal dogmatics, aims at the correct meaning of propositions the content of which constitutes an order supposedly determinative for the conduct of a defined group of persons: in other words, it tries to define the facts to which this order applies and the way in which it bears upon them.

Toward this end, the jurist, taking for granted the empirical validity of the legal propositions examines each of them and tries to determine its logically correct meaning in such a way that all of them can be combined in a system which is logically coherent, that is, free from internal contradictions. This system is the “legal order” in the juridical sense of the word.21

Kelsen says virtually the same thing about the idea of a science concerning the normative meaning of the law, in virtually the same language:

The possibility and necessity of such a discipline directed toward the law as a normative meaning is proved by the fact that the science of law has been in existence for millennia—a science which, as dogmatic jurisprudence, serves the intellectual needs of those who deal with the law. There is no reason to leave these entirely legitimate needs unsatisfied and to give up such a science of the law.22

In short, they share an understanding of the kind of subject which jurisprudence is: a dogmatic science concerned with normative meanings and validity. The difference between the two comes down to a question about the status of “normative meaning.”

Kelsen’s original arguments directed at Weber as the representative of the sociological approach to the law involved the claim that the sociological approach to the law presupposed the normative conception of the law, and that without the use of specifically normative concepts sociology could only describe a kind of parallel event in nature rather than anything specifically legal.23

By the time of the Pure Theory of Law, Kelsen formulated this issue as follows:

The object of [the sociologist’s] cognition, then, is not actually the law itself, but certain parallel phenomena in nature. Similarly with the physiologist; he investigates the chemical or physical processes that accompany certain feelings or give rise to conditions under which these feelings occur, but he does not comprehend the feelings themselves, which, as psychological phenomena, cannot be comprehended chemically or physiologically. The Pure Theory of Law, as a specifically legal science, directs its attention not to legal norms as the data of consciousness, and not to the intending or imagining of legal norms either, but rather to legal norms qua (intended or imagined) meaning. And the Pure Theory encompasses material facts only where these facts are the content of legal norms, that is, are governed by legal norms. The problem of the Pure Theory of Law is the specific autonomy of a realm of meaning (i.e., the meaning of positive laws).24

There are, for Kelsen at this point, two realms of meaning: the normatively valid one, which corresponds to the objective, and the subjective. Weber uses exactly the same distinction between subjective and objective meaning, but distinguishes a third kind of meaningful object:

“Meaning” [in the factual sense] may be of two kinds. The term may refer first to the actual existing meaning in the given concrete case of a particular actor, or to the average or approximate meaning attributable to a given plurality of actors; or secondly to the theoretically conceived pure type of subjective meaning attributed to the hypothetical actor or actors in a given type of action. In no case does it refer to an objectively “correct” meaning or one which is “true” in some metaphysical sense. It is this which distinguishes the empirical sciences of action, such as sociology and history, from the dogmatic disciplines in that area, such as jurisprudence, logic, ethics, and esthetics, which seek to ascertain the “true” and “valid” meanings associated with the objects of their investigation.25

This gives us three kinds of meaning: the individual subjective kind, which can be “averaged”; the theoretically pure type invented as a means for interpreting action, and the type of meaning to which Kelsen refers, the meaning appropriate to a dogmatic science concerned with the truth and validity of meanings.26

Here we arrive at a sharp difference between sociology and jurisprudence. As Weber summarizes the issue: “When we speak of ‘law’, ‘legal order’, or ‘legal proposition’ (Rechtssatze), close attention must be paid to the distinction between the legal and the sociological points of view.” The legal point of view asks “What is intrinsically valid as law? That is to say: What significance, or in other words what normative meaning ought to be attributed in correct logic to a verbal pattern having the form of a legal proposition?” From the sociological point of view we ask the different question: “What actually happens” when people, and especially people with power, “subjectively consider a norm as valid and . . . orient their conduct toward these norms”?27 The objective meaning of the law is a matter of the normative meaning of the law itself as a cultural artifact, ideology, and system of logically and meaningfully interrelated ideas. The gap between this system and what actually happens may be large. The way in which people “orient” themselves to this order may involve attitudes other than acceptance or devotion– the orientation may simply be a matter of seeing the norms as something to evade or manipulate for their own benefit.

So what can one make, in Weberian terms, of Kelsen’s claim that the sociology of the law presupposes the normative concept of the law? Weber gives the following answer.

Insofar as it looks at the law, sociology deals not with determining the logically correct «objective» meaning of legal propositions but with action, for which, naturally among other things, the ideas of men about the “meaning” and the “validity” of certain legal propositions play a significant role both as determinants and consequences.28

The ideas of men, meaning the subjective ideas of the people involved, do all the explaining of action: actual validity adds nothing to explanation. This pattern holds all the way through: ideas about the state explain the patterns of action, not the state as a real thing, and ideas of validity, not real validity, determine what people actually do in the name of the law. Validity fails the test of explanatory necessity. The idea of validity or rather the ideas of validity held by the people whose actions are being explained account for action, and nothing more is needed.

empirically, certain people hold certain views about the meaning of a valid legal proposition, and under certain specifiable conditions, the result is that action can be rationally oriented toward specific expectations, thus giving specific opportunities to particular individuals. Their behavior can thereby be substantially influenced. This is the conceptual sociological meaning of the empirical “validity” of a legal proposition.29

Validity, in short, is a normative, not an explanatory concept. Similarly for “the state” as a real entity: everything that needs to be explained can be explained by talking about what people believe and do. The rest of the concept of the state, Weber implies, is ideological or metaphysical.

This might seem to be an uncongenial form of argument for Kelsen. But in fact he embraces it, with one modification. The difference is this: Kelsen accepts the juristic point of view as a starting point, and asks the same kinds of questions about whether a given concept, such as the state, adds anything or is necessary to explain anything, above and beyond what is explained by the normative considerations of law. He draws the same kinds of conclusions as Weber does.

Weber’s point in these passages parallels Kelsen’s translations of the terms that appear in political ideologies into their legally meaningful contents: they show that there is nothing explanatory added by these collective notions. For Kelsen, for example, the meaningful content of the notion of representation in a given state is exhausted by the legal procedures of voting for office holders. The rest is ideology:

If political writers insist on characterizing the parliament of modern democracy, in spite of its legal independence from the electorate, as a “representative” organ, if some writers even declare that the mandat impératif is contrary to the principle of representative government, they do not present a scientific theory but advocate a political ideology. The function of this ideology is to conceal the real situation, to maintain the illusion that the legislator is the people, in spite of the fact that, in reality, the function of the people– or, more correctly formulated, of the electorate– is limited to the creation of the legislative organ.30

For Weber, the explanatory content of the concept of “state” is exhausted by the subjectively meaningful actions of the individuals whose actions form the relevant patterns. The subjective meaning that is relevant for states is a belief in the legitimacy of the order. Kelsen asks an added question:

What is the criterion by which those relations of domination that constitute the State are distinguished from those which do not? Let us consider the relatively simple case of a State where one single individual rules in an autocratic or tyrannic way. Even in such a State, there are many “tyrants,” many people who impose their will upon others. But only one is essential to the existence of the State. Who? The one who commands “in the name of the State.” How then do we distinguish between commands “in the name of the State” and other commands? Hardly otherwise than by means of the legal order which constitutes the State. Commands “in the name of the State” are such as are issued in accordance with an order whose validity the sociologist must presuppose when he distinguishes between commands which are acts of state and commands which do not have this character.31

For Kelsen, at least in this early text, there is notion of real validity implied by the notion of belief in validity—or as Kelsen puts it “the individuals living within the State have an idea of law in their minds, and this idea is—as a matter of fact—the idea of a body of valid norms.”32 Kelsen’s account of this fact changes throughout his career. Eventually this becomes a presupposition of a meaningful order, then an ‘as if,’ in the sense of Vaihinger. For Weber, from the start, the question of validity is subjective. The sociologist might, for his own interpretive purposes, “presuppose” an ideal-type which he constructs, but it would be an error to confuse this purified type with anything real—and this holds also for the ideal type of a modern legal order, to which we now turn.

The Rule of Law within the Limits of the Fact-Value Distinction

These strictures place a particular significance on the fact that Weber and Kelsen do not use the predominantly Anglo-American term “rule of law.” Both, as noted, were engaged in projects that bear directly on the concept of the Rechtsstaat, or “state of laws.” But what they say reflects the intellectual division of labor discussed above, and their joint insistence on a value-free description of the domain of fact with which they were concerned. The division of labor reflects their division of the objects of knowledge among the domain of the factual, as constructed by reality sciences such as sociology, the domain of the legal and legally meaningful, as constructed by the dogmatic or normative science of law, and the ideological or valuative, a domain of subjective meaning and ungroundable individual value choice. The separation of these domains is complicated by the fact that the second is itself “ideological” as Kelsen acknowledges, and Weber would as well. The project of the Pure Theory of Law is one of refining law of extraneous or extra-legal ideological elements, of ideology in the second sense. This raises five questions about the notion of the rule of law: a) is there a meaning for this term within the limits either of an account of law that is stripped of subjective value-commitments or of a value-free sociology of the law; b) what would a Kelsenian translation of the rule of law into legally meaningful terms look like; c) what can one say about the rule of law within the limits of reason, or reason construed in this way; d) how exactly does one strip ideological, political, and historical elements from the concept of law; e) and how do Weber and Kelsen do this. It is perhaps simplest to begin to answer these questions by considering their very similar conclusions.

Weber creates a sociological “ideal-type,” an abstraction designed to provide an interpretive entry point for analysis, of a distinctive form of legitimating belief, which he calls “rational-legal domination (legal authority).” He contrasts it to two other conceptually purified

forms, charismatic and traditional domination. Kelsen has a parallel list, adding religious, customary, and statutory law.33 Weber treats these as ideal-types, rarely or never found in reality in their pure forms, and regards actual present legal orders as mixtures; Kelsen describes modern constitutions as mixtures of customary and statutory law, and uses the language of ideal-type as well.34 Rational-Legal authority rests on the acceptance of the validity of the following (three) mutually dependent ideas:

  1. That any given legal norm may be established by agreement or by imposition, on grounds of expediency or value-rationality or both, with a claim to obedience at least on the part of the members of the organization. This is, however, usually extended to include all persons within the sphere of power in question– which in the case of territorial bodies is the territorial area– who stand in certain social relationships or carry out forms of social action which in the order governing the organization have been declared to be relevant.
  2. That every body of law consists essentially in a consistent system of abstract rules which have normally been intentionally established. Furthermore, administration of law is held to consist in the application of these rules to particular cases; the administrative process is the rational pursuit of the interests which are specified in the order governing the organization within the limits laid down by legal precepts and following principles which are capable of generalized formulation, and are approved in the order governing the group, or at least not disapproved in it.
  3. That thus the typical person in authority, the “superior,” is himself (still) subject to an impersonal order by orienting his actions to it (this order) in his own dispositions and commands. (This is true not only of persons exercising legal authority who are in the usual sense “officials,” but, for instance the elected president of a state.)35

Kelsen puts the same issues in a very slightly different way, reflecting his different purposes, and the difference between a sociological de-ideologization and one based on normative minimalism.

The first item concerns “sovereignty,” and extends Weber’s famous definition of a state: “A Compulsory political association will be called a state insofar as its administrative staff successfully upholds the claim to the monopoly of the legitimate use of force.”36 This is a “sociologized” restatement of the concept of sovereignty, and one that radically demystifies it. “Legitimacy” for Weber is no more than the belief by at least some of the affected population, the members of the ruling organization themselves, in the right of the rulers to rule. Elsewhere Weber speaks of legitimacy in terms of the combination of this belief and the probability that the rules in question will be obeyed37.

For Kelsen, the core idea is that the law consists in the production of norms in accordance with norms, that legality is a matter of action in accordance with legal norms, norms which in turn are produced in accordance with other norms. State action is the action of individuals or bodies that are authorized by norms to produce norms according to norms. The acts of the state are no more than these norm-governed or authorized acts. The “state” and state power, accordingly, is not the source of law, the law is the source of the state and state power: Kelsen’s famous thesis of the identity of the law and the state is precisely this: there is nothing more to the state than is given in the law. Kelsen’s distinctive contribution to the philosophy of law is his relentless insistence on the idea that law is norms created in accordance with norms, and the key implication of this idea, the hierarchical structure of the normative order itself, the Stauffenbautheorie, which was part of the Vienna background:

Law regulates its own creation inasmuch as one legal norm determines the way in which another norm is created, and also, to some extent, the contents of that norm. Since a legal norm is valid because it is created in a way determined by another legal norm, the latter is the reason of validity of the former. The relation between the norm regulating the creation of another norm and this other norm may be presented as a relationship of super- and sub-ordination, which is a spatial figure of speech. The norm determining the creation of another norm is the superior, the norm created according to this regulation, the inferior norm. The legal order, especially the legal order the personification of which is the State, is therefore not a system of norms coordinated to each other, standing, so to speak, side by side on the same level, but a hierarchy of different levels of norms. The unity of these norms is constituted by the fact that the creation of one norm—the lower one—is determined by another—the higher—the creation of which is determined by a still higher norm, and that this regressus is terminated by a highest, the basic norm which, being the supreme reason of validity of the whole legal order, constitutes its unity.38

The two definitions are closely related. For Weber, the characteristic of rational legal authority is the existence of a body of laws—similar to Kelsen’s “positive law”—that constitutes a consistent, abstract, impersonal order. Kelsen also uses the “term” intentional.39 Officials are governed by or “oriented” to this order, and this includes the officials and political authorities who exercise the authority of administration, but also elected officials, such as Presidents and legislators. Kelsen makes the same points: that the law is a consistent normative order, that it is a system of norms, rather than one of personal authority. Weber does not say precisely that law is norms produced in accordance with norms, but the third item in his list implies something very close to it. Officials, including elected ones, are oriented in their actions to an impersonal order, a “consistent system of abstract rules which have normally been intentionally established,”40 to which they are subject. This system of rules is the law: the legitimating principle which characterizes the orientation to the law that gives these rules a specifically “legal” meaning is the belief in the validity and authority of the impersonal order itself, and not merely a belief in its contents.

Whether a “belief” in this impersonal order as such is different than a belief in Kelsen’s Grundnorm is a question which can be asked in two ways: sociologically, there seems to be no difference; legally, from the point of view of Kelsen’s own account of the problem of international recognition of legal authority, there seems to be no difference either, because Kelsen’s account of the recognition of legal authority under international law requires only effective authority, a version of Weber’s first item, and the existence of the Grundnorm can be inferred back via regression from any functioning legal authority.41 The difference comes down to the difference in disciplinary purposes: the sociologist explains without justifying; the jurisprudential thinker seeks the ultimate ground of justification. For Weber the principle of rational-legal legitimacy must be accepted as an absolute or ultimate value: it is not possible to ground it on anything deeper. Similarly for Kelsen, with this difference: for Kelsen the ground of the law cannot be outside of the law, but must be itself a legal norm. So the legitimating principle must be a law itself, a law presupposed by the law as a normative system of positive laws, without which the law would not be normative.

The “Nothing More” Question

Kelsen’s point in the Pure Theory of Law, and in other texts, is that not only is the Grundnorm or Basic Law the normative ground of a dynamic legal system, it is the sole and sufficient normative ground. Kelsen pursued this argument by systematically re-analyzing traditional legal notions in order to show that the implications for legal and political thought that had been read into them by previous theorists did not follow from what was logically required to account for the law. Kelsen’s claim was that the complete legal meaning of the concepts could be adequately analyzed in terms of the idea that norms are produced by norms. The project in this sense resembles, though in a different sphere and by means of different kinds of arguments, Weber’s own procedure of systematically stripping traditional terminology for teleological thinking about human action and society of any teleological content.42

So where does the rule of law fit into their picture? As has been already noted, many of the properties of legal orders that the label “rule of law” has been applied to appear in their accounts already. Both of them emphasize 1) the subordination of officials to the law. This consideration alone accounts for much of the traditional notion of the rule of law: a state in which the laws are largely obeyed, in which official power is circumscribed by the law, and that authorizes the use of the coercive power of the state only within limits. Writers like Lon Fuller add to the rule of law such notions as the idea that 2) the laws should not be contradictory,43 a consideration explicitly addressed both in Weber’s definition and inter alia by Kelsen. The idea of legal rationality and the idea of non-contradiction seem inseparable. Both also add 3) the consideration of effectiveness: whether the legal order actually commands obedience. If we limit ourselves to these three very simple considerations, we have the following: the rule of law is the effective operation of a state under an impersonal rationally organized order that is accepted as valid by a significant number of people, especially officials, and that has a reasonably high level of compliance, especially by officials. Deviations from the rule of law are illegal acts, and the abrogation of the rule of law would consist in the commission of acts not authorized by the law or forbidden by it, especially by officials, in significant numbers.

These argumentative strategies raise a simple question about the rule of law and whether it can be understood within the limits of the fact-value distinction. Is the rule of law “nothing more” than some set of either legally meaningful or sociological facts? Do the approaches of either Kelsen or Weber, or Kelsen and Weber together, have the conceptual resources to account for the phenomenon usually described as the rule of law? Or does the application of their conceptual resources to the phenomenon expose the rule of law as a muddled notion with no explanatory value? The initial answer to this question is that the elements of a “rule of law” regime that are at the core of most conceptions of the rule of law are accounted for by the notion of an effective impersonal order in which officials act and generate norms according to norms.

Much, if not most, of what is casually referred to as failures of the rule of law, for example, in the developing world, is a matter of ineffectiveness in enforcing the law, and especially ineffectiveness in enforcing the laws relating to official conduct. All of this fits comfortably within the fact-value distinction as “fact,” either in Weber’s sense or Kelsen’s slightly more inclusive sense, which includes the normative facts of positive law.

But without going beyond this we cannot capture the more elusive and ambiguous sense that writers on the rule of law appeal to but struggle to define. In particular, one could imagine a highly aggressive and intrusive legal regime that conformed to this core notion of the rule of law that afforded little protection for the individual against the state: a well-oiled police state. Indeed, Weber’s hostility to the inexorable rise of a bureaucratic order based on rational-legal authority and his sense that the last vestiges of human freedom had to be protected from it, indicate that he agreed with this concern. So there is a question of whether there are additional conceptual resources available to Weber and Kelsen which pertain to this more elusive sense, or whether their account is antithetical or in conflict with any form of the elusive sense. But there is also a question of whether any politically neutral notion of the rule of law which respects the fact-value distinction can capture the elusive sense—or whether the concept of the rule of law is inevitably ideological or valuative, or a concealed political preference.

Hayek and his followers exemplify the elusive and ambiguous sense, and it is in Hayek that one ought to find a formulation of the elusive sense that allows us to make a sharp distinction between what Weber and Kelsen describe and the genuine rule of law. An influential tradition stemming from Hayek is concerned with administrative discretion44 and the idea that the central feature of the rule of law is the limitation of administrative discretion: this is the practical form or modern meaning of the idea of the rule of law not men. There is a variant of this tradition concerned with the increasing role of administrative law and administrative courts for the supervision of administration.45 This tradition has its roots in the experience of the Obrigkeitstaat or magistrate state, where there was a wide range of discretionary power and consequently arbitrariness of legal process and state action. Weber in particular contrasts this more traditional form with the modern bureaucracy, whose hallmark is predictability, and with modern rational-legal authority, which also achieves the maximum degree of predictability.46 This comes very close to Hayek’s concerns. What is the difference between predictability and restricted discretion? One could of course have predictable outcomes which result from the biases of the decision-making process or the decision-makers, and these could be distinguishable from the predictability that results from the rule of law, which in turn could be affirmed by appeals courts. But a significant theme of the literature is this: that some discretion is unavoidable, and that even the courts regularly acknowledge this and defer to administrators.47 If administrative discretion is the stand-in for the elusive sense, it remains elusive.

The predictability of bureaucratic decision-making results in a significant degree from something other than the rules to be applied—the informal discipline provided by the career structure of bureaucratic organizations, which use tests, reward those who conform to the bureaucracy’s culture in their decision-making, and so forth. Weber was highly sensitive to the importance of these mechanisms. Legitimacy, in any case, is an informal fact—composed of the beliefs and motives for acceptance of authority, which include convenience, habituation, and the like. These are aspects of Kelsen’s problem of effectiveness, rather than the law itself.

There is an important conceptual resource that both Weber and Kelsen employ that has not yet been discussed that provides at least a partial answer to this question: the idea of technical flaws and technical improvement. “Improvement” is a notion that skates along the edge of the fact-value distinction. Weber treats the notion of progress as ideological or valuative.

Progress is a teleological notion, and the end-point selected is necessarily valuative. He nevertheless distinguishes this from technical progress.48 Weber’s thought seems to be this: that techniques or means operate within the causal logic of the selection of means to ends that is itself value free. So one can identify technical progress here, in the form of improved means to ends, where improvement is a matter of providing a choice that achieves the goals that are intended in a way that accords with the pre-established intentions– more efficiently, for example, if efficiency is one of the originally intended goals. When Kelsen discusses such things as the technical inadequacy of the “law” of the League of Nations, he is primarily concerned to exclude ideological elements with no legal meaning.49 But his positive proposals for legal structures making ineffective treaties like the Briand-Kellogg pact effective conforms to Weber’s usage: the “pact” was technically inadequate because it lacked a court with compulsory jurisdiction– this was “error of construction.”50

One could treat the “independent” judiciary as a technical improvement in legal institutions. But matters are not so simple. The concept, and the concept of the separation of powers with which it is associated, however, is, for Kelsen and Weber, shrouded in a haze of myth and legally misleading historical associations, which are ripe for Ideologiekritik. Kelsen’s discussion of the problem is, indeed, a paradigm of this kind of critique, and a good indication of the way he would treat other aspects of the idea of the rule of law. Kelsen distinguishes legally meaningful facts from historical and political ones in relation to the separation of powers.

The legal facts, Kelsen argues are these: the judiciary issues norms, sometimes general and sometimes “individual,” as when a judge decides a case and imposes an outcome. The idea that the judge merely applies the law and makes “decisions” is an illusion. Judicial action is an exercise of executive power. So there are, in any legally meaningful sense, only two powers– legislative and executive, rather than three. Kelsen acknowledges the historical role of the judiciary in restraining royal power in England, but suggests that these events created an illusion of independence: in fact the selection of judges and their control by the administration was a matter governed by law just as other executive functions were. In each case, the decision makers were producing norms in accordance with norms, including norms that authorize them to take particular kinds of actions. It is, and should be, a technical issue as to the distribution of executive powers of this kind, but it should not be pretended that the courts are outside of politics. The notion of “powers” and thus the idea of the independent power of the judiciary is a mystification: there are no “powers” here other than the ones produced under norms: the same body of norms that authorizes legislatures and executives to produce norms.51 One can turn the idea of separation of powers into a political ideology—and indeed the use of the extra-legal metaphysical language of “powers” facilitates its absorption into a political theory or ideology. But the phrasing has no legal meaning beyond the sense of legal authorization.

In Kelsen’s own constitution writing52, he acknowledged the executive character of constitutional court action by compelling the parties in the legislature to agree on appointments. But his understanding of the creation of judicial competencies can be made to fit squarely into the limits of the category of technical improvements in the law. That is, that the existence of these courts makes it more likely that the law will be carried out consistently and that the legal order will be effective. The point of an “independent,” meaning indirectly controlled, judiciary is to assure the effective enforcement of the law—to protect against failures by the executive to behave legally. Similarly for judicial review, which protects against failures of the courts to follow the law. One can say the same for the rights associated with the legal process, the demand for due process itself, and for other elements of the legal order that have been associated with the rule of law in the elusive sense. These are instrumental legal values, a point made by Raz.53 And such values as transparency may also be understood as instrumental. Transparency, under some circumstances, will make it more likely that the law will be followed, and also that it will be accepted as legitimate and thus that the legal regime will be effective. But whether this is true in a given situation is a contingent, empirical fact. Weber points to the universal phenomenon of bureaucratic secrecy,54 and it must be said that secrecy may also, in some circumstances, promote legitimacy and effectiveness: instrumentality cuts both ways, here as elsewhere.

Conclusion

Why would it matter that one could construct an alternative description of the rule of law which strips it of its ideological elements? One superficial reason is obvious, and would have been obvious to Weber and Kelsen. The ideas of the rule of law and the Rechtsstaat both present themselves as something other than political programs, ideologies, or personal value-choices.

The terms purport to refer to something broader—a way of life, a spirit animating the legal life of a society, and a means of protecting other important values, of basic equity and fairness, rights, and so forth. The contrast to tyranny and the rule of men and the frequent claim that the rule of law is under threat testify to the emotive power of these notions. Yet the power of this idea is matched only by its elusiveness. Once the idea is separated into its non-ideological meanings, either as a sociological fact, as in Weber, or a legal idea, as in Kelsen, things look different. The non-ideological meanings don’t have the magic of the idea of the rule of law. From one point of view, the non-ideological descriptions are irrelevant: if we treat the rule of law as a frankly valuative notion, we can ignore these considerations, and justify and analyze the concept by grounding it in more general normative ideas. This is the approach of Raz: the values that compose the rule of law are instrumental values, and the further ends can be grounded in general normativity. But the lists of values that are supposed to make up the rule of law are not especially impressive on their own, and their instrumental value seems to be, as we have seen, largely contingent. Moreover, to accept this reasoning we would have to also accept that beyond the instrumental values there is some sort of general consensus about normative truth, a claim that both Weber and Kelsen would reject. Where the idea of the rule of law is most compelling is not when it is reconstructed as a list of values, but when it appears as a whole. But this sense of the rule of law is the most elusive, as well. Out of the long discussion of the rule of law, no coherent account of this whole has emerged.

Weber at one point comments that the meaning of the phrase the “socialism of the future” is “the rationalization of economic life by combining future bureaucratization with interest-group administration.”55 To describe what “socialism” would amount to as an administrative reality is sobering. But it is sobering precisely because the ideological phrase conceals the factual reality of the means by which socialism would operate and what actual human existence under socialism would be like. This is the way in which Weber’s ideal types of authority work as well: they show how an idea is carried out in actual human practice. What it would actually mean to organize the state according to the principles of rational-legal authority is this: bureaucratization, and the social mechanisms for the selection of bureaucrats and the enforcement of their conformity which predictable rule-governed decision-making would require.

The rule of law, because of its historical associations, is a concept that promises a great deal. But if we ask what the rule of law actually consists of, within a sociological reality, we get a less alluring answer. There is nothing in the subordination of officials to an abstract order that guarantees the achievement of values of freedom or protection from state power. States which operate under the strict observance of an abstract order are states as machines that can be turned to many purposes. The preservation of the values that we ordinarily group under the notion of the rule of law must come from someplace other than the notion of law itself. To be sure, adherence to the law does matter. Life in a law-abiding society is different from life in a lawless one, and life under unpredictable or corrupt officials is different from life without them. These differences are what the rule of law delivers, not what the elusive sense of the rule of law seems to promise. And they are differences that we can make valuative judgments about, and contest. Weber, for his part, was not enthusiastic about a future of bureaucratic rule. And we too could prefer a state with a human face, or a world in which the law had a smaller place.

Kelsen was relentless in separating the legally meaningless ideological provisions of treaties and constitutions from those which had actual legal force.56 He regarded the flowery but empty promises of such constitutions as a kind of fraud. The rule of law is a concept with similar properties. It is usually treated as an unalloyed good, seen through the haze of associations with English freedom, the rise of democratic constitutionalism, liberal rights, and the achievement of a decent society in which everyone is accorded the equal respect of the law. But the legal meaning of the rule of law is simply that the law is obeyed and effective. And this is consistent with many values and policies, including those that oppress and deny dignity. Weber and Kelsen allow us to cut through the haze to see that the law is a coercive order, that the rule of law is consistent with a wide range of values, and intrinsically connected to few of the political ideas and values with which it is normally associated.

The failure to construct a fully coherent account of the rule of law that displays these associations and shows their rational and empirical connections contrasts with the success that Weber and Kelsen have in constructing their sociological and jurisprudential accounts. But why do these different accounts matter for controversies about the rule of law? In itself, the fact that the rule of law can be redescribed in a disenchanted way proves nothing. But it does prove something against a certain kind of argument, and the elusive sense of the rule of law trades on this kind of argument. The kind of argument was highly familiar to Weber and Kelsen in the form of the case for the reality of the collective concept of the state, and the supposed implications of the reality of the state, both of which they rejected. They responded by showing that the facts– sociological and legal– did not require that the state be described in a way that had these implications. For Kelsen this would become the basis of his celebrated identity theory for law and state.

The notion of the rule of law is given as a description of reality. The descriptive concept suggests that there is some sort of intrinsic or necessary connection between the elements associated with the concept: that they are not merely accidentally connected, or historical coincidences, or ideological decoration. The difficulty with the concept is that both the connections and the list of elements have been impossible to clearly establish. Weber and Kelsen demonstration that the needed connections exist neither in sociological fact nor in the logic of the law itself shows that the connections are not necessary, and that the implications of an intentionally disenchanted description, in terms either of the legally or the sociologically meaningful. They then implicitly ask the question of whether the rule of law is nothing more than effective adherence to an abstract order. The elusive sense insists there is more, but the “more” cannot be made into anything coherent: the connections between the elements of the concept that the concept promises and requires in order to be a unified object are not there. The elusive sense is an illusion. The associations are decorative and historical. With Kelsen and Weber, we have something startling: an impeccably liberal Ideologiekritik of a liberal shibboleth.

  1. The differences between the two concepts have been widely discussed: see Loammi Blaau, “The Rechsstaat Idea Compared with the Rule of Law as a Paradigm for Protecting Rights,” New Contrast 107, 1990, 76-96; Pietro Costa and Danilo Zolo, eds., The Rule of Law: History, Theory, and Criticism (Dordrecht: Springer), 2007; Paul Craig, “Formal and Substantive Conceptions of the Rule of Law,” Public Law Autumn, 1997, 467-487; Gottfried Dietze, Liberalism Proper and Proper Liberalism (Baltimore: Johns Hopkins University Press), 1985; Gottfried Dietze, Two Concepts of the Rule of Law (Indianapolis: Liberty Fund), 1973; Richard A. Fallon, “‘The Rule of Law’ as a Concept in Constitutional Discourse,” Columbia Law Review 97, n.1, 1997, 1-56; Gustave Gozzi, Rechsstaat and Individual Rights in German Constitutional History, in Pietro Costa and Danilo Zolo (eds.) The Rule of Law: History, Theory, and Criticism, (Dordrecht: Springer), 2007, 237-259; Michel Rosenfeld, “Rule of Law versus Rechsstaat,” Menschenrechte und Bürgerrechte in einer vielgestaltigen Welt 21, n. 24, 2000, 49-71. Despite the discussion, there is little agreement. Both concepts imply some sort of intuited normative content beyond the statutes that make up the written law: something that tells us what law is in accord with the rule of law. Both can be construed as constraints on the state. Both are afflicted with the paradox that the only way in which the law can regulate the state is through the state itself: stated in this way, the question of which does the regulating can only end in either a circle or a regress. ↩︎
  2. Paul Craig, for example, discusses “Formal and Substantive Conceptions of the Rule of Law,” Public Law Autumn, 1997, 467-487; the distinction is central to Weber=s sociology of law. ↩︎
  3. In “Rule of Law versus Rechsstaat,” (op. cit.) Michel Rosenfeld considers the problem of the irrationality of the common law, one of Weber=s themes. Cf. Emmanuel Melissaris, “Is Common Law Irrational?: The Weberian ‘England Problem’ Revisited,” Northern Ireland Legal Quarterly 55, n. 4, 2004, 378-395. ↩︎
  4. Max Weber, Economy and Society: An Outline of Interpretive Sociology, edited by G. Roth and C. Wittich (Berkeley and Los Angeles, University of California Press), [1968] 1978, 957-958. ↩︎
  5. For recent discussion of the status of intuitions and of this strategy, see Alvin Goldman, “Philosophical Intuitions: Their Target, Their Source, and Their Epistemic Status,” Grazer Philosophisiche Studien 74, 2007, 1-26; Ernest Sosa, “A Defense of the Use of Intuitions in Philosophy,” in Dominic Murphy and Michael Bishop (eds.), Stich and His Critics (Malden, MA: Blackwell) 2009, 101-112; Jonathan M. Weinberg, Shaun Nichols, and Stephen Stich, “Normativity and Epistemic Institutions,” Philosophical Topics 29, n. 1&2, 2001, 429-460. ↩︎
  6. Nor was this surprising. Leonard Kreiger’s The German Idea of Freedom documents the endless confusions surrounding the concept of the Rechtsstaat in the writings of nineteenth century thinkers, especially in connection with its use to obscure the issue of the conflict between state power and individual freedom (Boston: Beacon Press), 1957. ↩︎
  7. Max Weber, Critique of Stammler, trans. Guy Oakes (New York: The Free Press), [1907] 1977. ↩︎
  8. Max Weber, “Some Categories of Interpretive Sociology,” The Sociological Quarterly 22, n. 2, 1981, 158; Economy and Society (op. cit.), 311. ↩︎
  9. For example, Hans Kelsen, General Theory of Law and State, trans. Anders Wedberg (New Brunswick, NJ: Transaction Publishers), [1925] 2006, 181-166. ↩︎
  10. Hans Kelsen, Der soziologische und der juristische Staatsbegriff. Kritische Untersuchung des Ver hältnisses zwischen Staat und Recht 2nd edn (Tübingen: J. C. B. Mohr), [1922] 1928. ↩︎
  11. Cf. Jörg Kammerhofer, Leo Gross, in Robert Walter, Clemens Jabloner, Klaus Zeleny (eds), Der Kreis um Hans Kelsen: Die Anfangsjahre der Reinen Rechtslehre (Vienna: Manz), 2008, 115-133. This collection includes sketches of the jurisprudential collaborators, followers, and associates of Kelsen in Vienna. The names of contemporary sociologists—a tiny community at the time—abound in this collection. They appear as people with whom Kelsen’s followers interacted, engaged, and had a strong interest. ↩︎
  12. Eugen Ehrlich, Fundamental Principles of the Sociology of Law (Cambridge, MA: Harvard University Press) [1913] 1936. Kelsen’s article was “Eine Grundlegung der Rechtssoziologie” Archiv für Sozialwissenschaft und Sozialpolitik 39, 1915, 839-876. ↩︎
  13. Hans Kelsen, A New Science of Politics: Hans Kelsen’s reply to Eric Voegelin’s “New Science of Politics”: A Contribution to the Critique of Ideology, ed. Eckhart Arnold (Frankfurt: Ontos Verlag), 2004. ↩︎
  14. The similarities have been observed before, notably in a famous paper by Bobbio, who notes the complementary character of their conceptions of their domains of interest; Norberto Bobbio, “Max Weber e Hans Kelsen,” Sociologia del Diritto 8, n. 1, 1981, 135-154. ↩︎
  15. Max Weber, “The Meaning of ‘Ethical Neutrality’ in Sociology and Economics,” in E.A. Shils & H. A. Finch (eds.) The Methodology of the Social Sciences (New York: The Free Press) 1949, 20-21. ↩︎
  16. Isaiah Berlin, Two Concepts of Liberty (Oxford: Clarendon Press) 1958, 57; cf. Henry Hardy, “Skeptical Isaiah Berlin” Letter to the Editor, The New York Review of Books LVII, n. 6, 8 April, 2010, 89-90. For a more elaborate discussion of Weber’s value theory, see Stephen Turner and Regis Factor, Max Weber and the Dispute over Reason and Value: A Study in Philosophy Ethics, and Politics (London: Routledge & Kegan Paul, Ltd.), 1984. ↩︎
  17. Hans Kelsen, What Is Justice?: Justice, Law, and Politics in the Mirror of Science; collected essays (Berkeley: University of California Press) 1957; Hans Kelsen, On the Essence and Value of Democracy, in Arthur J. Jacobson and Bernhard Schlink (eds.) Weimar: A Jurisprudence of Crisis (Berkeley: University of California Press) [1929] 2000, 84-109. ↩︎
  18. Cf. Max Weber, “The Meaning of ‘Ethical Neutrality’ in Sociology and Economics” 27, 34-5, 38-9. ↩︎
  19. Max Weber, Critique of Stammler (op. cit.), 141. ↩︎
  20. Max Weber, “Science as a Vocation,” in H. H. Gerth and C. W. Mills (eds.) From Max Weber: Essays in Sociology (New York: Oxford University Press) [1919] 1946, 144. ↩︎
  21. Max Weber, Economy and Society (op. cit.) 311. ↩︎
  22. Hans Kelsen, Pure Theory of Law (Reine Rechtslehre 2nd edn), trans. Max Knight (Berkeley: University of California Press) [1960]1967, 105. ↩︎
  23. These arguments are discussed at length in Stephen Turner, Explaining the Normative (Cambridge: Polity Press) 2010, 66-94. ↩︎
  24. Hans Kelsen, Introduction to the Problems of Legal Theory (Reine Rechtslehre 1st edn), trans. B. Paulson and S. Paulson (Oxford: Clarendon Press) [1934] 2002, 12-13. ↩︎
  25. Max Weber, Economy and Society (op. cit.), 4; emphasis in the original. ↩︎
  26. One of Kelsen’s later defenders suggested that Kelsen’s argument could have been saved had he reinterpreted his pure theory as itself an ideal type of Weber’s second kind, rather than a claim about a realm of actual legal validity; Dhananjai Shivakumar, “The Pure Theory as Ideal-Type: Defending Kelsen on the Basis of Weberian Methodology,” The Yale Law Journal 105, n. 5, 1996, 1383-1414. ↩︎
  27. Max Weber, Economy and Society (op. cit.), 311; emphasis in the original. ↩︎
  28. Max Weber, “Some Categories of Interpretive Sociology” (op. cit.), 158; emphasis in the original. ↩︎
  29. Max Weber, “Some Categories of Interpretive Sociology” (op. cit.), 159. ↩︎
  30. Hans Kelsen, General Theory of Law and State (op. cit.), 291. ↩︎
  31. Hans Kelsen, General Theory of Law and State (op. cit.), 186-187. ↩︎
  32. Hans Kelsen, General Theory of Law and State (op. cit.), 177. ↩︎
  33. Hans Kelsen, General Theory of Law and State (op. cit.), 110-116. ↩︎
  34. The term comes from Georg Jellinek, whose lectures Kelsen attended in Heidelberg, who uses it to represent a valuative ideal. Weber uses the term non-valuatively, as a value- neutral means of interpretation and aid to conceptually clear description. This is also how Kelsen uses the term; Hans Kelsen, General Theory of Law and State (op. cit.), 284, 288, 441-44. ↩︎
  35. Max Weber, Economy and Society (op. cit.), 217. ↩︎
  36. Max Weber, Economy and Societyn (op. cit.), 54. ↩︎
  37. Max Weber, Economy and Society (op. cit.), 37, 53-4; Max Weber, “Some Categories of Interpretive Sociology (op. cit.),” 175-79 and passim. ↩︎
  38. Hans Kelsen, General Theory of Law and State (op. cit.), 124. ↩︎
  39. Hans Kelsen, General Theory of Law and State (op. cit.), 71, 105, 311, 361, 362. ↩︎
  40. Max Weber, Economy and Society (op. cit.) 217. ↩︎
  41. This problematic is discussed at length in Stephen Turner, Explaining the Normative (op. cit.), 74-77. ↩︎
  42. Weber’s anti-teleological project, directed at prior philosophy of law, especially Ihering’s Zweck im Recht (Rudolph Ihering, Law as Means to an End, translation of the 4th German edn. by Isaac Husik (Macmillan, New York), [1877-83] 1924, is documented in Stephen Turner and Regis A. Factor, Max Weber: The Lawyer as Social Thinker (London: Routledge), 1994. ↩︎
  43. Lon Fuller, The Morality of Law (New Haven, CT: Yale University Press), 1964. ↩︎
  44. F. A. Hayek, Constitution of Liberty (Chicago: The University of Chicago Press), [1960] 1978, 212-15, 225. ↩︎
  45. Cf. Albert Venn Dicey, Law & Public Opinion in England: During the Nineteenth Century 2nd edn. (London: Macmillan and Company), [1914] 1962. ↩︎
  46. Max Weber, Economy and Society (op. cit.), 1394-95. ↩︎
  47. Hayek himself makes this concession: F. A. Hayek, Constitution of Liberty (Chicago: The University of Chicago Press), [1960] 1978, 213. ↩︎
  48. Max Weber, The Methodology of the Social Sciences, trans. and ed. Edward A. Shils and Henry A. Finch (New York: The Free Press), 1949, 27-39. ↩︎
  49. Hans Kelsen, Legal Technique in International Law: A Textual Critique of the League Covenant (Geneva: Geneva Research Centre), 1939. ↩︎
  50. Hans Kelsen, Law and Peace in International Relations; the Oliver Wendell Holmes lectures, 1940-41 (Cambridge, MA: Harvard University Press), 1942, 45 ↩︎
  51. Hans Kelsen, General Theory of Law and State (op. cit.), 255. ↩︎
  52. The Austrian Constitution (the B-VG) was based on a draft by Hans Kelsen and first enacted on October 1, 1920. Cf. Hans Kelsen, “Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution,” The Journal of Politics 4, n. 2, 1942, 183- 2000. ↩︎
  53. Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press), 1979, 225-26. ↩︎
  54. Max Weber, Economy and Society (op. cit.), 992-993. ↩︎
  55. Max Weber, “The Meaning of ‘Ethical Neutrality’ in Sociology and Economics” (op. cit.), 47. ↩︎
  56. This is especially visible in his discussion of the treaties creating the League of Nations; Hans Kelsen, Legal Technique in International Law: A Textual Critique of the League Covenant (Geneva: Geneva Research Centre), 1939. ↩︎