Formal and Substantive Rationality in Law: Legacies of the Axial Age?

In his essay on The Developmental Conditions of Law, Max Weber identified a cluster of factors that contributed to the emergence of formal rationality in law. Crucially-important, in his view, were legacies from Roman law. Building on these legacies, a new set of rationalizing culture-carriers (“jurists”) emerged during the high middle ages. Formal rationality in law, which Weber sharply distinguished from substantive legal ideals of justice and righteousness, was their unique legacy. Drawing on early work in evolutionary anthropology, Weber located the deepest roots of this legal rationalization process in magic and animism.

In his essay on Ancient Judaism, however, Weber offered another possibility, one that aligns well with the scholarship of Raymond Westbrook, who argued that Biblical and Roman law should be seen as separate strands of a common legal tradition, one that draws on intellectual legacies from the ancient near east. Rather than locating the origins of legal rationalization in questionable assertions of anthropological universality, perhaps we can instead trace an historical line of development leading from ancient near eastern legal casuistry to Roman law and Abrahamic faith traditions. This historicized alternative for the earliest roots of legal rationalization is one that could potentially align with an Axial Age hypothesis. Might law itself be, in certain respects, a legacy of the Axial Age? Is it possible to see the emergence of substantive ideals for law – justice and righteousness – emerging against an older background of casuistic formal rationality, as part of transformative developments connected with the Axial Age? My paper will explore these possibilities, drawing particularly on the scholarship of Raymond Westbrook, on Weber’s writing about law in Ancient Judaism, and on criticisms that scholars of Roman religion have leveled at anthropological theories, especially the notion that magic and animism rest at the heart of ancient religions.