[author]Stephen M. Feld

[content]

An Interpretation of Max Weber’s Theory of Law: Metaphysics, Economics, and the Iron Cage of Constitutional Law

 Stephen M. Feldman

Among legal scholars, Anthony T. Kronman and David M. Trubek have provided the leading interpretations of Weber's theory of law. Kronman and Trubek agree on two important points: Weber's theory is fundamentally contradictory, and Weber's theory relates primarily to private law subjects such as contracts. This article contests both of these points. Building on a foundation of Weber's neo-Kantian metaphysics and his sociological categories of economic action, this article shows that Weber's theory of law is not fundamentally inconsistent; rather it explores the inconsistencies that are inherent within Western society itself, including its legal systems. Furthermore, Weber's insights can be applied to modern constitutional jurisprudence. Weberian theory reveals that modern constitutional law is riddled with irreconcilable tensions between process and substance-between formal and substantive rationality. In the context of racial discrimination cases involving equal protection and the Fifteenth Amendment, the Supreme Court's acceptance of John Hart Ely's theory of representation-reinforcement demonstrates the Court's resolute pursuit of formal rationality, which insures that the substantive values and needs of minorities will remain unsatisfied.

Max Weber's sociology is a modernist critique of Western liberal institutions and thought. Weber bores in on liberal dichotomies: free will versus determinism, rationality versus irrationality, form versus substance, and fact versus value. He traces these dichotomies, explores their benefits, and then unmercifully uncovers their costs. While performing his task, however, Weber knowingly and self-consciously accepts the liberal vision of the world: Weber is the "liberal in despair".

In recent years, scholars have rediscovered Weber's theory of law. Among legal scholars, Anthony T. Kronman and David M. Trubek have provided the leading interpretations of Weber.3 Kronman and Trubek agree on two important points: first, Weber's theory is fundamentally contradictory, reflecting "his apparent 'intellectual or moral schizophrenia,' " and, second, Weber's theory relates primarily to private law subjects such as contracts. This article offers a fresh reading of Weber's theory of law that contests both of these points. Weber is not fundamentally inconsis- tent, rather he explores the inconsistencies or tensions that are inherent within Western society and its legal systems. Furthermore, Weber's insights into law can be profitably applied to modern constitutional jurisprudence, even though he himself focused on contract law. His theory allows us to approach constitutional law from within: A Weberian critique accepts the current conceptions of constitutional law, acknowledges their advantages, but then underscores their dehumanizing disadvantages. In particular, Weberian theory reveals that modern constitutional law is riddled with irreconcilable tensions between process and substance-between formal and substantive rationality. Yet, because a Weberian critique accepts the present constitutional conceptions, it refuses to offer revolutionary or utopian alternatives to contemporary constitutional jurisprudence. Instead, Weber offers only despair.

Part I of this article explores Weber's neo-Kantian metaphysics and his sociological categories of economic action.6 An understanding of these two foundations is a prerequisite to a proper understanding of Weber's theory of law. Weber's metaphysics-the first foundation-informs his critique of Western liberal institutions, leading him to emphasize their inherent or structural tensions, such as the tension between abstract calculability and the satisfaction of ultimate values and needs. Weber's categories of economic action-the second foundation-parallel his categories of legal thought. When discussing both economic action and legal thought, he defines four categories: formally rational, formally irrational, substantively rational, and substantively irrational. Despite this correspondence between the categories, Weber's description of the categories of legal thought is unrefined and difficult to understand, while his description of the categories of economic action is lucid and precise. Thus, a preliminary discussion of the definitions of and relationships between the categories of economic action facilitates an understanding of the categories of legal thought.

Part II offers an interpretation of Weber's theory of law, built on the earlier discussions of Weber's metaphysics and his categories of economic action. Part II begins by defining Weber's categories of legal thought- formal and substantive rationality, and formal and substantive irrationality-and then focuses on one of Weber's central themes: the increasing formal rationality of law. In the course of this discussion, both the causal relationship between law and economy and the tension between formal and substantive rationality are explored.

Part III illustrates the current significance of Weber's theory of law in the context of modern constitutional theory and adjudication. Part III begins by linking the historical development of process-oriented theory in constitutional law to Weber's vision of the increasing formal rationality of legal thought. Part III then focuses on the apotheosis of process-oriented constitutional theories, John Hart Ely's theory of representation-reinforcement, and how the Supreme Court has applied this approach in cases of racial discrimination. Through representation-reinforcement, the Court, in an effort to avoid imposing its own substantive values on society, attempts to do no more than ensure that the political process is fair and open. Part III concludes with a Weberian critique of this process-oriented approach: The Court's pursuit of fair process may lead to formal rationality, but it simultaneously and necessarily causes substantive irrationality, and the suppression of ultimate values and needs.

Ⅰ. FOUNDATIONS OF WEBER'S THEORY OF LAW

The dominant purpose of Weber's work-the thread that weaves through all his varied writings-is to explore the increasing rationalization of Western society. Weber defines this increasing rationalization as, in essence, the increasing ability to calculate one's means and ends. Calculabil- ity has increased, according to Weber, as the Western world has become disenchanted, growing increasingly secularized; as humans are freed from the constraints of mysterious forces, they turn to technical mechanisms to understand and determine their world.10 The corpus of Weber's writing is devoted to exploring how capitalism and the rule of law contribute to and are shaped by this increasing rationalization." And the foundation for his exploration of Western society is his neo-Kantian metaphysics.

A. Neo,Kantian Metaphysics

Weber's definition of sociology begins to reveal his commitment to a neo-Kantian metaphysics. He defines sociology as "a science concerning itself with the interpretive understanding of social action and thereby with a causal explanation of its course and consequences."' An action, according to Weber, occurs when "the acting individual attaches subjective meaning to his behavior-be it overt or covert, omission or acquiescence." An action is social when "its subjective meaning takes account of the behavior of others and is thereby oriented in its course." These definitions reveal Weber's fundamental and immediate commitment to the tensions or dichotomies at the core of Western liberal thought: He seeks to understand the meaning of action, which the individual subjectively attaches to his or her behavior, while simultaneously seeking to explain the causes and consequences of that action. Thus, Weber is consciously attempting to straddle the chasm between free will- the belief in the subjective creation of meaning and action-and determinism-the belief that human actions are caused. He states in his essay, "'Objectivity' in Social Science and Social Policy," "We wish to understand on the one hand the relationships and the cultural significance of individual events in their contemporary manifestations and on the other the causes of their being historically so and not otherwise."

Weber, however, does not simply assume that he can bridge the gap between free will and determinism. To the contrary, he instead explicitly identifies the metaphysical commitments supporting his bridge. He describes reality and our experience of reality in a largely Kantian manner, which is rooted in the Cartesian opposition of subject and object.16 Thus, like Kant, Weber expressly begins with the assumption that there is an "infinite reality"'-a "meaningless infinity." Each event, consequently, has an infinite number of causes; one cannot possibly know every cause of any particular event. Weber gives the example of a boulder that falls from the side of a cliff during a storm and splinters into thousands of scattered fragments. He asks whether one can answer certain questions regarding this event: "Into how many fragments was the boulder broken? How are the fragments shaped? And into what groups did the scattered fragments fall?" His response is that while the event is not "'inexplicable'... , a genuine causal 'regress' would be quite impossible." Moreover, Weber adds, "an exhaustive causal investigation of any concrete phenomena in its full reality is not only practically impossible-it is simply nonsense." Consequently, according to Weber, a monocausal or reductionist approach cannot explain the development of society; instead we must understand society as resulting from a complex interaction of many factors, including law, religion, and economy.

If reality is a "meaningless infinity," and each event flows from an "infinite causal web," then, asks Weber, how can one's life be meaningful and how can one objectively know anything? He again adopts a Kantian viewpoint: "The objective validity of all empirical knowledge rests exclusively upon the ordering of the given reality according to categories which are subjective in a specific sense, namely, in that they present the presuppositions of our knowledge." That is, humans experience and understand the infinite reality only through certain categories or presuppositions that humans, themselves, impose on that reality. Direct knowledge of the infinite reality is impossible: All experience and understanding are filtered through the categories or presuppositions. Weber, therefore, explicitly and consciously accepts the fundamental Kantian opposition- rooted in Descartes-between the thinking subject and the objective external world of the infinite reality. Moreover, Weber also explicitly and consciously accepts Kant's so-called Copernican revolution: The objects of the infinite reality do not directly shape human knowledge and experience, rather humans impose form and structure on the objects of experience. Weber and Kant, however, sharply differ on one point. Kant argues that the categories of experience and understanding are inherent to human thought or reason. The categories, identified by Kant, are static: They do not change during history or in different cultures. Weber, on the other hand, identifies the categories or presuppositions as cultural; for this reason, Weber is more neo-Kantian than Kantian. As Weber says, "we are cultural beings:" "Order is brought into this chaos only on the condition that in every case only a part of concrete reality is interesting and significant to us, because only it is related to the cultural values with which we approach reality." Thus, for Weber, reality is necessarily experienced and known only through our categories and presuppositions, but these categories and presuppositions are culturally constructed and thus culturally contingent.

Weber's commitment to a neo-Kantian metaphysics resonates throughout his writing. Because Weber knowingly accepts the fundamental tension between a thinking subject and an external and infinite reality, he can more easily identify and explore the many other characteristic dichotomies or tensions within Western society. For example, he writes: "At the very origin of all legal history there thus prevailed ... an important dualism, i.e., a dualism of the autonomously created law between groups, and the norms determinative of disputes among group members." In other words, Weber identifies a dualism or dichotomy at the core of legal history: the distinction between, on the one hand, subjectively created laws that regulated activities between social groups or communities, and, on the other hand, preexisting or natural norms, rooted in tradition from "time out of mind," that regulated members within a group.

Weber's sensitivity to the tensions within Western society is the animating force behind his writings. Because of that sensitivity, he can recognize and sensibly argue that capitalism simultaneously has distinct advantages and dehumanizing disadvantages. Moreover, he can reasonably conclude that there is an "insoluble conflict between the formal and substantive principles of justice." Weber's entire analysis of Western society indeed is laced with these apparent ambivalences, which, despite the arguments of Kronman and Trubek, do not reflect any inconsistencies on Weber's part. To the contrary, they demonstrate his firm and consistent commitment to his neo-Kantian metaphysics and to a critique of the structural tensions at the heart of Western liberal thought.

B. Sociological Categories of Economic Action

Weber defines four categories of economic action: formally rational, formally irrational, substantively rational, and substantively irrational. The degree of formally rational economic action increases as the calculability of means and ends increases. The more that the means and ends of economic activity are calculated-quantified and then compared-the more that the activity is formally rational. To achieve the highest level of formal rationality, which Weber calls purpose-rational social action, an individual first must rationally choose an end or goal based on factors such as opportunity costs-the costs of forgoing one end for another-and marginal utility calculations-ranking ends on a scale of urgency. After choosing an end or goal, the individual must rationally choose the most efficient means for attaining that chosen end. Since the core of formal rationality is calculability, the hallmark of formal irrationality is incalculability. An economic action is formally irrational to the extent that the indi- vidual acts without calculating the advantages and disadvantages of various means and ends.

Substantive rationality is based on the extent that an economic action satisfies certain ultimate values or needs.38 The degree of substantive rationality thus does not correspond to the degree of calculation. Instead, the degree of substantive rationality increases as one's activity increasingly satisfies one's ultimate values or needs, derived from sources such as an internal moral framework, religious faith, or political commitments. On the other hand, an economic action is substantively irrational to the degree that these ultimate values or needs remain unfulfilled.

Appreciating Weber's fundamental distinction between formal and substantive rationality of economic action clarifies much of his writing. For example, as discussed earlier, the dominant purpose of Weber's work is to explore the increasing rationalization of Western society as reflected in an increasing ability to calculate one's means and ends. The distinction between formal and substantive rationality now reveals that when Weber argues that Western society has become increasingly rational, he means that the degree of formal rationality has increased. Moreover-and this is one of Weber's most significant points-the degree of substantive rationality is distinct from the degree of formal rationality. Thus, an increase in formal rationality does not necessarily correspond with an increase in substantive rationality. Indeed, his analysis suggests that formal rationality is at times inversely related to substantive rationality: In some circumstances, increasing formal rationality of economic action inevitably causes substantive irrationality! "Inevitability," in this context, does not mean that every instance of formal rationality leads to substantive irrationality, rather that pervasive formal rationality, in the end, necessarily causes many instances of substantive irrationality.

Weber illustrates this counterintuitive relationship between formal and substantive rationality when he discusses the rise of capitalism. According to Weber, the degree of formally rational economic action is highest in capitalist economies; money and capital accounting allow capitalist enterprises to attain the highest possible degree of calculability. In one sense, then, human freedom is maximized: People are free insofar as they can calculate the advantages and disadvantages of various economic options and then choose the most advantageous course. Weber emphasizes, however, that despite creating a high degree of formal rationality, capitalism ultimately leads to substantive irrationality. Capitalist enterprises aim to earn profit, not to fulfill people's ultimate values or needs. Indeed, the only needs that are satisfied are those of individuals who have the resources (money) to purchase products. Consequently, the benefit of capitalism is calculability and thus a high degree of formal rationality, but the cost of capitalism is the dissatisfaction of ultimate human values and needs and thus a high degree of substantive irrationality.

The attractive side of capitalism-its high degree of calculability- ironically drives its repugnant side-the suppression of human values and needs. While in one sense, capitalism appears to maximize human freedom, in another sense, it undermines freedom: Individuals are unable to pursue and satisfy their ultimate values and needs. Formally rational techniques that once were no more than the means to attain substantively rational ends have bizarrely become ends in themselves. Moreover, the entire system constantly regenerates itself. In The Protestant Ethic and the Spirit of Capitalism, Weber writes:

The Puritan wanted to work in a calling; we are forced to do so. For when asceticism was carried out of monastic cells into everyday life, and began to dominate worldly morality, it did its part in building the tremendous cosmos of the modern economic order. This order is now bound to the technical and economic conditions of machine production which to-day determine the lives of all the individuals who are born into this mechanism, not only those directly concerned with economic acquisition, with irresistible force. Perhaps it will so determine them until the last ton of fossilized coal is burnt. In Baxter's view the care for external goods should only lie on the shoulders of the "saint like a light cloak, which can be thrown aside at any moment." But fate decreed that the cloak should become an iron cage.

The drive in Western society toward the increasing formal rationality of economic action that lies at the heart of capitalism is, according to Weber, systematically pervasive-perhaps even inexorable. And consequently, Weber argues, substantive irrationality is similarly inevitable: The capitalist calculation of means and ends largely ignores the ultimate values and needs of all.

Weber's analysis of capitalism flows naturally from his commitment to a neo-Kantian metaphysics. Weber's metaphysics focuses on the fundamental tension between the subject and the infinite reality and thus facilitates his recognition of the many other tensions or oppositions within Western society and thought, including the tensions within capitalism. Capitalism is premised on a commitment to human autonomy in the free marketplace, yet capitalism appears to undermine human freedom. The strength of capitalism is its power to maximize formally rational economic action, yet a pervasive increase in formal rationality inevitably causes substantive irrationality. Weber does not, however, take an additional step to conclude that capitalism is doomed because of these internal tensions. That conclusion would be Marxian utopianism. To the contrary, Weber maintains that the increasing formal rationality of Western society, of which capitalism is merely one symptom, has created an "iron cage." His conclusion is thus merely what flows from his analysis: that capitalism is laced with ironic tensions that bond together to form an inescapable prison.

Ⅱ. WEBER'S THEORY OF LAW

A. The Categories of Legal Thought

Weber's description of the categories of legal thought is confusing and uncharacteristically imprecise.47 As stated previously, however, his categories of legal thought parallel in name the categories of economic action. The four categories of legal thought, as well as economic action, are formal rationality, formal irrationality, substantive rationality, and substantive irrationality. This section argues that Weber reasonably intends the legal categories to parallel the economic categories not only in name but also in content. If true, his lucid description of the categories of economic action clarifies his confusing and unfinished description of the categories of legal thought.

Weber writes that law is formally rational to the extent that "only unambiguous general characteristics of the facts of the case are taken into account." Weber appears to be emphasizing clarity-lack of ambiguity- and generality as being essential to a formally rational legal system. When he focuses on economic action, on the other hand, he emphasizes calculability, stating that the degree of formal rationality of economic action in- creases as the calculability of means and ends increases. His emphases on clarity and generality in legal thought and on calculability in economic action are not, however, opposed. To the contrary, in the realm of legal thought, Weber intends to suggest that the calculability of judicial decisions increases as the clarity and generality of legal rules increase. He believes that as the generality of legal rules increases, the number of cases covered by those rules increases, and so long as the rules are clear, their application in the cases is also theoretically clear and predictable. Consequently, the calculability of judicial results corresponds directly with the clarity and generality of legal rules. In most instances, the formal rationality of legal thought therefore increases as the degree of calculability in- creases. This interpretation of Weber's category of formally rational legal thought not only parallels his category of formally rational economic action but also parallels his general description of the increasing rationalization of Western society-increasing rationalization generally means increasing calculability. In the realm of legal thought, the correspondence between formal rationality and calculability means that a formally rational legal system theoretically has largely noncontroversial judicial results.

Weber distinguishes two different types of formally rational legal thought. With regard to the first type-called extrinsically formal rational legal thought-he writes that "the legally relevant characteristics are of a tangible nature, i.e., that they are perceptible as sense data." Thus, the results in cases are clearly determined by the existence or nonexistence of particular tangible facts. For example, a contract is not enforceable if it is not in writing. A will is not enforceable if it is not witnessed by at least two people. With regard to the second type of formally rational legal thought-called logically formal rational legal thought-Weber writes that it "is found where the legally relevant characteristics of the facts are disclosed through the logical analysis of meaning and where, accordingly, definitely fixed legal concepts in the form of highly abstract rules are formulated and applied." In other words, judicial results are highly calculable because the legal system consists of conceptually ordered, logically consistent, and abstract rules. As Weber states, a formally rational system of the second type allows "the collection and rationalization by logical means of all the several rules recognized as legally valid into an internally consistent complex of abstract legal propositions."

Legal thought, according to Weber, is formally irrational "when one applies in lawmaking or lawfinding means which cannot be controlled by the intellect, for instance when recourse is had to oracles or substitutes therefor."56 When lawmaking and lawfinding cannot be controlled by the intellect, when recourse is had to oracles or similar irrational sources, then the law is unpredictable. Weber, again paralleling the categories of economic action, is suggesting that law is formally irrational when it is unpredictable, when judicial decisions are incalculable.

Legal thought is substantively rational if "the decision of legal problems is influenced by norms different from those obtained through logical generalization of abstract interpretations of meaning. The norms to which substantive rationality accords predominance include ethical imperatives, utilitarian and other expediential rules, and political maxims." This description of substantively rational legal thought is nearly identical to Weber's description of substantively rational economic action.58 Thus, for both legal thought and economic action, the degree of substantive rationality increases as one's activity increasingly satisfies one's ultimate values or needs, derived from sources such as an internal moral framework, religious faith, or political commitments-but not derived from and indeed unrelated to the rules and principles of the legal system itself.

Finally, legal thought is substantively irrational "to the extent that decision is influenced by concrete factors of the particular case as evaluated upon an ethical, emotional, or political basis rather than by general norms." Weber here appears to be distinguishing between judicial decisions based on general norms or ultimate values, on the one hand, and decisions based on any other factors (including legal rules), on the other. In other words, judicial decision making-like economic action-is substantively irrational when it does not satisfy ultimate values or needs but is instead influenced by other factors, which are often arbitrary and unique to the particular case.

B. Increasing Formal Rationality of Legal Thought

Weber uses the four categories of legal thought to analyze the development of the law in Western society, just as he had earlier used the four categories of economic action to analyze the economic development of capitalism in Western society. And just as he had earlier demonstrated that Western society has been marked by an ever increasing degree of formally rational economic action, he now demonstrates an ever increasing degree of formally rational legal thought-in particular, logically formal rational legal thought.

One example of this rise of formally rational law is, according to Weber, in the field of contracts. He argues that Western society has moved from "status contracts"62 to "purposive contracts."63 Pursuant to a status contract, a person can "become somebody's child, father, wife, brother, master, slave, kin, comrade-in-arms, protector, client, follower, vassal, subject, friend, or, quite generally, comrade."64 Thus, a status contract allows a person actually to become someone else, to change significantly his or her status or role in society.65 Weber emphasizes, moreover, that the foundation for most status contracts is a reliance on magical or divine powers, which support the new "fraternal" relationship and often threaten punishment in case of "antifraternal conduct."

Purposive contracts, on the other hand, "neither [affect] the status of the parties nor [give] rise to new qualities of comradeship but [aim] solely, as, for instance, barter, at some specific (especially economic) performance or result." The prototypical purposive contract is the "money contract." Initially involving only immediate exchanges, these contracts eventually developed "promissory elements oriented towards the future." Money contracts, according to Weber, contributed to the secularization of the law, undermining a reliance on magical foundations for legal transactions. Since, as stated earlier, calculability increases as the world be- comes secularized or disenchanted, the transition from status contracts to purposive contracts corresponds with an increase in formally rational legal thought.

The creation and growth of the purposive contract, in conjunction with the development of a market exchange economy, leads to the modern concept of freedom of contract. The high degree of logically formal rationality in modern contract law means, according to Weber, that individuals can accurately predict or calculate the likely outcomes of various possible arrangements, and then intentionally choose the one arrangement with the best likely outcome. Modern contract law, in other words, has increased human freedom. Generalizing beyond contract law, Weber states: "Juridical formalism enables the legal system to operate like a technically rational machine. Thus it guarantees to individuals and groups within the system a relative maximum of freedom, and greatly increases for them the possibility of predicting the legal consequences of their actions." Thus, according to Weber, the increase of logically formal rational legal thought has, at least in one sense, maximized human freedom. On this point, he agrees with the many Enlightenment and post-Enlightenment thinkers who have equated reason with human freedom. The parallel between the developments of law and economy in Western society-namely, the ever increasing degree of formal rationality of both legal thought and economic action-raises two significant questions for Weber. First, what is the causal relationship between the law and the economy? Second, does the increasing degree of formal rationality in legal thought correspond with an increasing degree of substantive irrationality, similar to the counterintuitive relationship in the economic sphere?

1. Causal Relationship of Law and Economy

Weber is interested in two aspects of the causal relationship of law and economy: How does law influence the development of capitalism, and how does capitalism influence the development of formally rational law? Weber, rejecting Marx's reductionist approach to history, refuses to reduce either legal or economic developments to simple monocausal relationships. Instead, consistent with his neo-Kantian belief in an infinite reality, Weber argues that a complex web of causal factors contributes to the increasing formal rationality of legal thought and economic action.77 He thus suggests, for example, that to understand legal developments, one must recognize the influences of politics, economics, and law itself.

Weber's identification of the many factors that contributed to the decline of slavery as a legal institution starkly illustrates the causal complexity of legal developments. He focuses on broad economic trends, such as the development of capitalist wage labor, as well as more localized economic developments, such as the exhaustion of free land in the American South. He focuses on the various roles that religion has played in different societies, suggesting that certain religious beliefs had contributed, but were not necessary, to the fall of slavery. He focuses, too, on how political commitments contributed to the decline of slavery. For example, in the United States, the political divergence of southern planters and northern manufacturers accelerated the coming of the Civil War and the end of American slavery. And finally, he focuses on how certain legal developments-namely, a commitment to natural law-strongly contributed to the decline of the legal institution of slavery. Indeed, Weber argues that a legal system reflects upon itself and thus influences its own development: "[T]he specific type of techniques used in a legal system, or, in other words, its modes of thought are of far greater significance for the likelihood that a certain legal institution will be invented [or will decline] than is ordinarily believed."

Focusing on the general relationship between law and economy, Weber states that law has a "strong influence" on economic development. He adds, "Law can... function in such a manner that, in sociological terms, the prevailing norms controlling the operation of the coercive apparatus [of the state] have such a structure as to induce, in their turn, the emergence of certain economic relations."s8 Certain legal developments, in other words, directly cause certain economic developments; in particular, the development of capitalism "fare[s] best under a rigorously formal system of adjudication." At times, Weber pushes this relationship even further, arguing that formally rational legal thought is a casual prerequisite for the development of capitalism.

But Weber retreats from this strong stance, suggesting instead that formally rational law contributes to the development of capitalism but is not a prerequisite. This retreat is most evident when Weber discusses the development of capitalism in England, whose common law system is not as formally rational as the civil law systems of continental Europe. Weber writes: "[M]odern capitalism prospers equally and manifests essentially identical economic traits under legal systems containing rules and institutions which considerably differ from each other." Weber apparently concludes, therefore, that the highest degree of formally rational legal thought contributes strongly to capitalism but is not a prerequisite to its development.

Turning to the effect of the economy on the law, Weber states that economic factors have only an "indirect influence" on legal developments. What does Weber mean by an "indirect influence"? He apparently intends to suggest two related points, one general and one more specific. The general point is that capitalism can contribute to the development of formally rational legal thought, but capitalism alone does not create a formally rational legal system. As Weber states, "[elconomic conditions have . . . everywhere played an important role."88 Indeed, he says that "economic interests are among the strongest factors influencing the creation of law." In his discussion of contract law, for instance, Weber concludes that "[t]he increased importance of the private law contract in general is ... the legal reflex of the market orientation of our society."

Despite linking the development of law to capitalism in this manner, Weber insists that capitalist interests do not by themselves create formally rational law. Economic institutions merely provide the proper environment for the growth of certain legal institutions, but growth is impossible without more-without the careful prodding from other social, political, religious, and legal institutions. He writes:

Economic situations do not automatically give birth to new legal forms; they merely provide the opportunity for the actual spread of a legal technique if it is invented. Many of our specifically capitalistic legal institutions are of medieval rather than Roman origin, although Roman law was much more rationalized in a logical sense than medieval law.

Because of this weak or indirect link between the economy and the law, the legal system can, under certain conditions, remain unchanged during even a radical transformation of the economy. Weber therefore concludes that "capitalism has not been a decisive factor in the promotion of [formally rational legal thought]."

In elaborating this weak link between the economy and law, Weber more specifically identifies how economic developments only "indirectly influence" legal developments. He, in essence, identifies a causal chain. The development of capitalism generates a need for persons with specialized knowledge of the law: professional attorneys. Only professional attorneys can provide the accurate predictions of legal results that capitalists need for their economic calculations. Professional attorneys, in turn, can cause the increasing formal rationalization of the law. In particular, the method of training attorneys most strongly affects the degree of formal rationality within a legal system: "The prevailing type of legal education, i.e., the mode of training of the practitioners of the law, has been more important than any other factor."96 Thus, capitalism does not directly cause any increase in the formal rationality of legal thought. Capitalism instead directly causes the development of the legal profession, which might then directly cause an increase in the formal rationality of the legal system. Thus, capitalism only "indirectly influences" the development of the legal system.

Since the method of training attorneys is the most important direct influence on the degree of formal rationality of legal thought, Weber devotes considerable space to distinguishing different methods of training. Weber's primary distinction is between "empirical legal training," on the one hand, and "academic legal training,"98 on the other. Empirical legal training is the teaching of law as a craft: "[A]pprentices learn from practitioners more or less in the course of actual legal practice." This method of training is typified, according to Weber, by the long-standing practices of the English Inns of Court and their guild-like monopolization of the legal profession.100 Most important, Weber argues that empirical training of this sort impedes the development of a formally rational legal system. Academic legal training, on the other hand, treats law as a science:

Law teachers and students shape the law into a rational and ordered system to facilitate their studies and education. Weber writes:

The legal concepts produced by academic law-teaching bear the character of abstract norms, which, at least in principle, are formed and distinguished from one another by a rigorously formal and rational logical interpretation of meaning. Their rational, systematic character as well as their relatively small degree of concreteness of content easily result in a far-reaching emancipation of legal thinking from the everyday needs of the public. The force of the purely logical legal doctrines let loose, and a legal practice dominated by it, can considerably reduce the role played by considerations of practical needs in the formation of the law.

In short, academic legal training strongly and directly pushes legal thought to its highest degree of logically formal rationality.

In summary, Weber identifies several different components of the causal relationship between law and economy. He argues that the law strongly and directly influences the development of the economy. Thus, a high degree of formally rational legal thought contributes heavily to the development of capitalism, but, he adds cautiously, it is not a prerequisite to capitalism. On the other hand, he maintains that the economy only indirectly influences the development of the law. Capitalism thus can contribute to the development of a formally rational legal system, but capitalism alone does not result in such a system. More specifically, capitalism  creates a need for professional attorneys, and the method of training those attorneys is the strongest and most direct influence on the degree of formally rational legal thought. Weber's most important point, however, may be his rejection of simple monocausal relationships. Remaining true to his neo-Kantian commitment to an infinite reality and an infinite causal web, he insists that one factor alone rarely causes the development of either formally rational law or capitalism. Instead, a complex web of factors con- tributes to most, if not all, legal and economic developments.

2. Tension Between Formal and Substantive Rationality

In his discussion of economic development, Weber argues that Western society is marked by an increase of formally rational economic action. He then observes, counterintuitively, that the increasing formal rationality of economic action ultimately creates an increasing degree of substantive irrationality.104 When Weber discusses legal thought in Western society, he argues that the formal rationality of legal thought has also consistently increased, paralleling the development of economic action. He consequently asks whether the parallel between legal thought and economic action continues: Does the increase in formally rational legal thought also cause a parallel increase in substantively irrational law? Weber answers with a resounding "Yes!"

As discussed earlier, Weber agrees with many Enlightenment and post-Enlightenment thinkers when he argues that the high degree of calculability in a formally rational legal system increases human freedom.' According to Weber, humans can supposedly control their own lives because they can manipulate the legal system like a "technically rational machine."' Nevertheless, Weber insists again and again that "formal justice, due to its necessarily abstract character, infringes upon the ideals of substantive justice."' Indeed, he states that formal and substantive rationality of legal thought are opposed in an "insoluble conflict."' In terms of human freedom, this conflict between formal and substantive rationality means that while formal rationality might increase freedom, it does so in only one sense. In another sense, it actually decreases human freedom. At this point, then, Weber departs from most Enlightenment and post-Enlightenment thinkers who equate reason-formal rationality- with freedom. He writes:

Formal justice guarantees the maximum freedom for the interested parties to represent their formal legal interests. But because of the unequal distribution of economic power, which the system of formal justice legalizes, this very freedom must time and again produce consequences which are contrary to the substantive postulates of religious ethics or of political expediency. ... It is precisely [its] abstract character which constitutes the decisive merit of formal justice to those who wield the economic power at any given time and who are there- fore interested in its unhampered operation, but also to those who on ideological grounds attempt to break down authoritarian control or to restrain irrational mass emotions for the purpose of opening up individual opportunities and liberating capacities. To all these groups nonformal justice simply represents the likelihood of absolute arbitrariness and subjectivistic instability.... [But formal] justice and the "freedom" which it guarantees are indeed rejected by all groups ideologically interested in substantive justice.

Formally rational legal thought, in other words, theoretically increases freedom because it allows individuals to autonomously decide their own fates. Only the high degrees of abstractness and calculability inherent in formally rational legal thought create the framework necessary for choosing among various options with predictable results. Any other system appears arbitrary and subjective. Yet, formal rationality breeds substantive irrationality because it precludes the consideration of ultimate values and needs in the adjudication of disputes. Humans are trapped within the iron mesh of formality, unable to pursue their true goals. Moreover, formally rational law obscures the significant effects of economic power. The formal freedom to choose among various options is merely a cruel farce for those who, for instance, must choose between oppressive employment and starvation."' Economically disadvantaged individuals are thus, according to Weber, much more concerned with substantive rationality-the satisfaction of their ultimate values and needs-than with the abstract calculability of a formally rational legal system. Weber illustrates the tension between formal and substantive rationality in the field of contracts. As discussed earlier, he argues that one of the primary aims and results of modern contract law is to increase formal rationality and thus to increase human freedom. But he simultaneously argues that modern contract law has not "brought about an actual in- crease of the individual's freedom to shape the conditions of his own life." To the contrary, according to Weber, the formal rationality of contract law, together with the unequal distribution of economic re- sources-which contract law itself helps to protect-enables some individuals to exercise power over others. Wealthy individuals coerce poorer ones into contractual agreements that disproportionately favor the wealthier and fail to satisfy the needs and values of the poorer. And all the while the abstract and depersonalized formal rules of contract law assure all that they receive equal judgment under the rule of law." In modern contract law, concepts such as economic duress, which can render an agreement unenforceable, are based on substantive rationality, not formal rationality, and thus are considered exceptional, are few in number, and are rarely applied." Pervasive formal rationality in contract law inevitably results in substantive irrationality; formal freedom ultimately prevents the satisfaction of the substantive values and needs of many individuals.

Weber explicitly ties together his explorations of formal rationality in capitalism and in legal thought when he discusses bureaucratization. Whether in private enterprise or in government, the bureaucracy is, according to Weber, the most rational and efficient social organization. No other organizational structure so fully promotes the identification and implementation of the most formally rational means for attaining any identified end. The bureaucracy is so efficient because it facilitates quantification and calculation and is thus perfectly suited for the exercise of formal rationality, whether in economic action or in legal thought. Characterized by the technical expert who applies calculable rules in a cold, dispassionate disregard for persons as living, feeling subjects, the bureaucracy fabricates a "shell of bondage," rendering individuals powerless to pursue their own ultimate values and needs.

Moreover, the bureaucracy is intimately linked with the formally rational rule of law. Not only is the bureaucracy the organization that best facilitates the administration of a formally rational legal system, but, at least in the public sphere, the bureaucracy is itself grounded on the formally rational rule of law. Each bureaucratic official "has a clearly defined sphere of competence in the legal sense:" Legal rules delineate fixed jurisdictional areas of power for each bureaucratic official. No one per- forms any duty or owes any obedience to another because of personal status or charisma: Instead, duty and obedience flow only from legal rules.

Finally, the tension between formally and substantively rational legal thought is manifest in the operation of the bureaucracy. Weber writes:

"Equality before the law" and the demand for legal guarantees against arbitrariness demand a formal and rational "objectivity" of administration, as opposed to the personal discretion flowing from the "grace" of the old patrimonial domination. If, however, an "ethos"-not to speak of other impulses-takes hold of the masses on some individual question, its postulates of substantive justice, oriented toward some concrete instance and person, will unavoidably collide with the formalism and the rule-bound and cool "matter-of- factness" of bureaucratic administration.

The bureaucracy thus facilitates the administration of formally rational legal thought but inevitably interferes with the satisfaction of ultimate values and needs.

Hence, as in his discussion of economic action, Weber's discussion of legal thought in Western society focuses on a counterintuitive correspondence between formal rationality and substantive irrationality. This focus again flows naturally from his neo-Kantian metaphysics. His knowing commitment to the fundamental tension between a thinking subject and an infinite reality facilitates his recognition of the many tensions within Western legal systems. The calculability of formally rational law repels the substantively rational satisfaction of ultimate values and needs. Moreover, again as with economic action, Weber insists that the trend toward increasing formal rationality of legal thought is so systematically pervasive that it is perhaps inexorable: "Inevitably the notion must expand that the law is a rational technical apparatus."' The "iron cage," according to Weber, cannot be escaped. As Western society marches in time toward greater and greater degrees of formally rational law, it simultaneously and inexorably trudges into the muck of substantive irrationality.

Ⅲ. WEBER AND CONSTlTUTIONAL LAW

Weber's theory of law can illuminate many current problems of law and society. In particular, this section illustrates the significance of Weber's theory in the context of modern constitutional law. If Weber's vision of historical development is correct, then the United States should have moved toward a more formally rational legal system in the late 19th century as law schools became the predominant arena of legal training. The development of Langdellian formalism in the 19th century and, more recently, the movement toward process-oriented theories and adjudication, especially in constitutional law,' support this Weberian view. A review of modern constitutional law reveals a strong emphasis on formal rationality through the protection of fair processes. A Weberian critique, however, uncovers irreconcilable tensions between process and substance: An inevitable consequence of process-oriented constitutional law is substantive irrationality, the suppression of ultimate values and needs.

A. Historical Development of Process-based Legal

Theories With regard to legal thought in the United States, Weber observes:

In [the United States], varying significance is given to a decided case not only, as happens everywhere, in accordance with the hierarchal position of the court by which it was decided but also in accordance with the very personal authority of an individual judge. This is true for the entire common-law sphere, as illustrated, for instance, by the prestige of Lord Mansfield. But in the American view, the judgment is the very personal creation of the concrete individual judge, to whom one is accustomed to refer by name, in contrast to the impersonal "District Court" of Continental-European officialese.'

Weber does not specify which time period of American legal thought he is describing. To some extent, his description applies at least partially to all periods. Nonetheless, his emphases on the personal authority and creativity of the American judge and the prestige of Lord Mansfield-together with the knowledge that Weber wrote in the early 20th century-suggest that Weber is describing the American "Grand Style" period.

The Grand Style is a method of writing judicial opinions that predominated from the early 19th century to approximately 1870. Judges of that period showed little concern for logical consistency with precedents, but a strong concern for the practical consequences and fairness of decisions. Grand Style jurists decided cases according to justice, not according to preexisting legal doctrine; judges made law if necessary to achieve justice. Often, the opinion in a Grand Style case reads as if it were a highly personalized statement of the judge. The strength and conclusiveness of an opinion was a function, not of precedent, but of the subjective force of will of the individual judge. In Weber's terminology, the Grand Style period focused on substantive rationality, at the expense of formal rationality. In 1870, Christopher Columbus Langdell was appointed as the first dean of Harvard Law School. Langdell revolutionized the training of attorneys in the United States by introducing both the case method of teaching and, more important, the academic attorney dedicated to scholarship and teaching in a university. Moreover, Langdell also introduced a philosophy of law, often called classical orthodoxy, which quickly came to dominate American jurisprudence.' Since Weber argues that university training of lawyers, with the concomitant academic attorney, is the strongest and most direct cause of logically formal rational legal thought, it is unsurprising that classical orthodoxy represents a strong swing toward formal rationality, moving away from the substantive rationality of the Grand Style period.

Indeed, Weber's description of the German Pandectists' approach to law-which he considers to be the apotheosis of logically formal rational legal thought-is strikingly similar to most descriptions of classical orthodoxy. Weber writes:

Present day legal science, at least in those forms which have achieved the highest measure of methodological and logical rationality, i.e., those which have been produced through the legal science of the Pandectists' Civil Law, proceeds from the following five postulates: viz., first, that every concrete legal decision be the "application" of an abstract legal proposition to a concrete "fact situation;" second, that it must be possible in every concrete case to derive the decision from abstract legal propositions by means of legal logic; third, that the law must actually or virtually constitute a "gapless" system of legal pro- positions, or must, at least, be treated as if it were such a gapless system; fourth, that whatever cannot be "construed" rationally in legal terms is also legally irrelevant; and fifth, that every social action of human beings must always be visualized as either an "application" or "execution" of legal propositions, or as an "infringement" thereof, since the "gaplessness" of the legal system must result in a gapless "legal ordering" of all social conduct.

Similarly, classical orthodoxy was devoted to the logical consistency of legal rules and principles. Classical orthodoxy envisioned the study of law as a science: The legal scholar discovers indubitable and absolute principles of law. These principles, small in number, can be "classified and arranged" into a formal framework so that each is in its "proper place." These logically organized principles then serve as the foundation for the noncontroversial derivation of all other legal rules and for the resolution of all judicial disputes. A judge never makes law because the legal system is gapless: To decide a case, a judge merely discovers the relevant preexisting legal rule and applies it in a straightforward and clear manner. If a legal rule does not clearly apply to the facts, then the judge logically and noncontroversially deduces the result from the principles. For classical orthodoxy, justice became "irrelevant"136 in the quest for abstract, logical consistency. In Weberian terminology, a judge who followed the tenets of classical orthodoxy never considered substantive rationality: The legal system was instead dedicated to the tireless pursuit of logically formal rationality.'

As earlier mentioned, Weber insists that the trend toward increasing formal rationality in Western legal thought is systematically pervasive and perhaps inexorable.138 Nevertheless, he expressly recognizes that the law is sometimes drawn in "antiformal directions."' In particular, Weber focuses on the "free law" movement in Germany, a critical reaction against the formally rational Pandectists, but he adds that this attack on logically formal rational legal thought is "international in scope." One reason for this attack is the desire for substantive rationality, for the satisfaction of ultimate values and needs. So long as the legal system pursues logically formal rationality, substantive rationality is frustrated. Another reason for the attack on formal rationality is the resistance of the legal profession to increasing bureaucratization. Weber writes: "Being confined to the interpretation of statutes and contracts, like a slot machine into which one just drops the facts (plus the fee) in order to have it spew out the decision (plus opinion) appears to the modern lawyer as beneath his dignity."

In the United States, this attack on logically formal rational legal thought was manifest in the sociological jurisprudence of the early 20th century' and, even more strongly, in the legal realism of the 1920s and 1930s. American legal realists outright rejected the classically orthodox view of the law as a conceptually ordered system of absolute and certain rules and principles. According to the realists, legal rules and principles have little to do with how judges decide cases. At most, the principles and rules provide post hoc rationalizations for the decisions, which are reached either through hunches or through the pursuit of values and needs external to the legal system. In other words, insofar as adjudication is rational at all, it is substantively rational, not formally rational.

Although Weber recognizes the antiformal movements in the law, such as free law in Germany and legal realism in America, he nevertheless concludes that they only "obscure"' the inexorable march of logically formal rational legal thought, which "cannot really be stayed." Indeed, these antiformal movements tend to create reactionary movements that return to the pursuit of logically formal rationality.148 In the United States, this dialectical reaction is manifest in the legal process movement that began in the 1950s and continues today.

Henry Hart and Albert Sacks spearheaded the beginning of the legal process school of thought with their course materials entitled The Legal Process: Basic Problems in the Making and Application of Law. Hart and Sacks argue that an understanding of the law requires focusing on two factors. First, they focus on the concept of the institution. According to Hart and Sacks, society creates and designates different legal institutions to resolve different societal problems. Courts are different from legislatures, and while judges do occasionally make law, they are not free to make law in the same way that legislators are free to make law.

Second, Hart and Sacks focus on legal processes. They reason that the various legal institutions are largely defined by the different procedures or processes that are integral to them. Thus, individuals working within different legal institutions are constrained by certain processes.' The process that constrains judicial decision making is called "reasoned elaboration."'

Reasoned elaboration requires a judge always to give reasons for a decision, articulating them in a detailed and coherent manner, and always to assume that "like cases should be treated alike."' The judge must relate the decision to the relevant rule of law, and must apply the rule of law in a manner logically consistent with precedent. Furthermore, reasoned elaboration requires the judge to apply the law "in the way which best serves the principles and policies it expresses." Finally, at the appellate level, judges who together reason through a case experience a "maturing of collective thought," a rational result that somehow transcends the idiosyncratic nature of any one individual judge. Thus, the requirements of reasoned elaboration constrain judges in ways that executive officers, legislators, and administrators are not constrained.

Legal process, in other words, returns to the classically orthodox pursuit of logically formal rational legal thought. Judicial decisions must be logically consistent with abstract "neutral principles": The reasons justifying a particular decision must transcend the immediate result of that decision. Thus, according to Hart and Sacks, the judicial decision "is to be arrived at by reference to impersonal criteria of decision applicable in the same fashion in any similar case." Substantive rationality, the pursuit of ultimate values and needs, cannot overcome the quest for abstract logical consistency.

B. Representation-Reinforcement Theory

An evolving legal process theory reached its apex in the constitutional theory of John Hart Ely. In Democracy and Distrust, elegant in its simplicity, Ely develops a complete and forceful argument for a process- oriented constitutional theory, which he calls representation-reinforcement. His purpose is to resolve two central and overlapping problems. First, should the Supreme Court follow an originalist or a nonoriginalist approach when construing the Constitution? Second, how can judicial review of congressional actions be reconciled with democracy?

Under Ely's definitions of originalism and nonoriginalism, an originalist approach to the Constitution is more restrained than a nonoriginalist approach. In searching for the meaning of a constitutional provision, even an open-ended one, the originalist focuses solely on the constitutional text and the intent of the framers. As Ely phrases it, "judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution." The nonoriginalist, on the other hand, freely moves beyond the text and the framers' intentions, using other sources of substantive values in an effort to give content to open-ended constitutional provisions.

Ely notes that, initially at least, originalism appears to be the more attractive theory because it apparently resolves the second central problem for constitutional theory, reconciling judicial review with democracy. Since our government is a representative democracy, when the Court finds that a congressional act is unconstitutional, the Court-an unelected branch of the government-is theoretically overturning the expressed will of the majority. Judicial review thus creates, in Alexander Bickel's words, the "counter-majoritarian difficulty."' Nonetheless, most recognize that we cannot have pure majority rule because the majority might unfairly oppress and tyrannize the minority. The problem is to identify what values will be protected against the majority will. Originalism apparently provides an easy answer to this problem: The only values that are protected are those that are "stated or clearly implicit in the written Constitution."

Ely nonetheless proceeds to show that an originalist approach to the Constitution is unsatisfactory. First, insofar as the constitutional text represents the will of a majority, it certainly is not the will of the current majority; at best, the Constitution represents the will of a long-dead majority. Originalism itself is therefore antidemocratic. Second, and more important, several provisions of the Constitution-such as the due process clause, the equal protection clause, the privileges or immunities clause, and the Ninth Amendment-suggest that the Court should go beyond the text and the intent of the framers. In other words, the framers themselves apparently intended the Constitution to protect values other than those "stated or clearly implicit in the written Constitution."

After showing that originalism is unworkable, Ely considers its traditional alternative, nonoriginalism, as a means for injecting substantive values into the open-ended provisions of the Constitution. Ely describes and convincingly rejects seven different nonoriginalist sources and methods, ranging from familiar ones such as natural law to less familiar ones such as the prediction of progress. Ely offers many reasons for rejecting the various nonoriginalist theories, but one problem is inherent to all such approaches. All nonoriginalist theories are indeterminate and thus fail to overcome the counter-majoritarian difficulty; nonoriginalism never sufficiently constrains the Court's choice of values. Thus, Ely's colorful criticism of natural law applies equally to other nonoriginalist approaches: "The advantage [of natural law] is that you can invoke [it] to support any- thing you want. The disadvantage is that everybody understands that."'

Having rejected both the originalist and the nonoriginalist approaches to the Constitution, Ely offers in their stead his own alternative theory, representation-reinforcement. Representation-reinforcement is a process-oriented approach because it forbids the Court from making substantive value choices: The Court is limited to policing the processes of democratic representation in our society. The Court can overturn a congressional action as unconstitutional only if it resulted from a malfunction- ing or defective democratic process. Thus, the Court is able to give content to the open-ended constitutional provisions by policing the political process, yet judicial review does not undermine our commitment to representative democracy. The counter-majoritarian difficulty dissolves: judicial review actually reinforces the democratic process.

According to Ely, the Court can police the democratic process in two ways: by "clearing the channels of political change" and by "facilitating the representation of minorities." To clear the channels of political change, the Court must prevent the political "ins" from insuring their continued political power by choking the channels of political change and permanently excluding the political "outs." Keeping the political process open is essential because, according to Ely, democracy is the mechanism for determining the substantive values of society. The Court does not make substantive value choices; it merely keeps the political process open so that the people-all of the people-can make those value choices democratically. Thus, for example, denying or diluting the right to vote through legislative malapportionment is a "quintessential stoppage" in the democratic process and therefore must be prevented by the Court. On the other hand, recognizing a woman's right to choose to have an abortion is, according to Ely, an unjustified substantive value choice by the Court.

The Court further polices the democratic process by facilitating the representation of minorities: The Court must prevent representatives from systematically disadvantaging minorities because of hostility or prejudice. The democratic process is malfunctioning if everyone is not "actually or virtually represented."' Minorities that technically participate in the democratic process by voting are nonetheless excluded if their elected representatives ignore their interests merely because they are minorities. Consequently, according to Ely, when a legislature intentionally discriminates against a minority for an improper motive, such as racial hostility, "the system has malfunctioned," and the Court should find the legislative action unconstitutional, thus correcting the defect in the democratic process. On the other hand, discriminatory effect alone does not render a governmental action unconstitutional: The Court, according to Ely, should not attempt to insure any substantive values or the satisfaction of any substantive needs, unless expressly protected in the Constitution.

C. Process in Constitutional Adjudication

The Supreme Court has followed Ely's representation-reinforcement theory in several contexts. This section discusses the Court's process-oriented approach to racial discrimination cases involving equal protection and the Fifteenth Amendment.

In the context of equal protection, the Court applied the representation-reinforcement theory in Washington v. Davis, decided in 1976. All applicants for the District of Columbia police force were required to take a written test intended to measure verbal ability, vocabulary, and reading comprehension. The test had a discriminatory effect upon African Americans: Test results eliminated from consideration more African-American than white applicants. Unsuccessful African American applicants filed suit, alleging a violation of equal protection as applied to the federal government through the due process clause of the Fifth Amendment.186

The Court, finding the test to be constitutional, held against the African-American applicants. In so doing, the Court explicitly endorsed the intent requirement of representation-reinforcement theory: "Our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact." Because the African-American applicants had failed to allege or prove intentional discrimination, the Court refused to subject the governmental action to high-level scrutiny. Despite the clear discriminatory effect of the test on African-American applicants, the Court merely applied the deferential rational-basis standard.

The Court, in other words, suggested that the allegation and proof of intentional discrimination would have demonstrated that the political process had malfunctioned and thus would have justified heightened judicial scrutiny. Since the democratic process had not been infected with discriminatory intent, however, the Court could not justifiably interfere with the governmental action. If it had interfered, the Court would have been merely substituting its substantive value choice for that of another governmental unit. The Constitution, according to the Court, did not guarantee the African-American applicants any particular substantive result.

The Court has explicitly followed this process-oriented approach in subsequent equal protection cases focusing on racial discrimination. For example, in Washington v. Seattle School District No. 1, decided in 1982, the Court stated:

[W] hen the State's allocation of power places unusual burdens on the ability of racial groups to enact legislation specifically designed to overcome the "special condition" of prejudice, the governmental action seriously "curtail[s] the operation of those political processes ordinarily to be relied upon to protect minorities." ... In a most direct sense, this implicates the judiciary's special role in safeguarding the interests of those groups that are "relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process."'

And as recently as 1989, in the landmark case of City of Richmond v. J. A. Croson Co., where the Court held a minority set-aside program to be unconstitutional, a plurality cited approvingly and quoted from Ely on representation-reinforcement.

The significance of this process-oriented approach in equal protection cases was never more stark, however, than in McCleskey v. Kemp, decided in 1987. McCleskey, an African American, was convicted of murder in a Georgia state court and sentenced to death. He petitioned for habeas corpus, alleging that the Georgia capital sentencing statute was racially discriminatory and thus violated the equal protection clause of the Four-teenth Amendment. The Court rejected his claim.

The Court stated the intent requirement: "For this claim to prevail, McCleskey would have to prove that the Georgia Legislature enacted or maintained the death penalty statute because of an anticipated racially dis- criminatory effect." Without such proof of discriminatory purpose or intent, the Court could not justifiably interfere with the substantive choices made by the Georgia legislature. The Court merely polices the political process: Only a malfunction in the legislative process would justify a judicial finding of unconstitutionality.

In this case, however, McCleskey offered striking statistical evidence of racial discrimination. The Court summarized the findings of the so- called Baldus Study: "[T]he death penalty was assessed in 22% of the cases involving black defendants and white victims; 8% of the cases involving white defendants and white victims; 1% of the cases involving black defendants and black victims; and 3% of the cases involving white defend- ants and black victims." The implications of this evidence are "disturbing," in Justice Brennan's understated words of dissent. The Baldus Study strongly suggests that the two most important facts leading to McCleskey's death sentence were his race (African American) and his victim's race (white).198 Despite the strength of this evidence, the Court concluded that it merely proved discriminatory effect, not discriminatory intent. Without the showing of discriminatory intent, the Georgia capital sentencing scheme was subject to mere rational-basis review and thus was found constitutional under the equal protection clause.

The Court follows a similar process-oriented approach toward the Fif- teenth Amendment. In City of Mobile v. Bolden, decided in 1980, the Court upheld as constitutional the at-large election of a three-member city commission. The City had implemented its multimember districting scheme 69 years earlier, yet no African American had ever been elected to the commission, although approximately one-third of the electorate was African American when the case was filed. Writing for a plurality, Jus- tice Stewart stated: "Action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose." Hence, despite undisputed evidence of discriminatory effect, the plurality found that the political process was not infected with discriminatory intent when this voting scheme was adopted. Consequently, it was constitutional. Justice Stewart added: "The Fifteenth Amendment does not entail the right to have Negro candidates elected."

Cases such as Washington v. Davis, McCleskey v. Kemp, and City of Mobile v. Bolden reflect the Court's commitment to a process-oriented approach to racial discrimination cases. The Court is willing to police the democratic process, preventing discrimination from infecting that process, but the Court is unwilling to enforce or define substantive values, unwilling to ensure the fulfillment of the substantive needs or values of minorities. Any substantive value choices must, according to the Court, be decided through the democratic process. In short, the Court has adopted and follows, sometimes expressly and sometimes not, Ely's representation- reinforcement theory in racial discrimination cases involving equal protection and the Fifteenth Amendment.

D. A Weberian Critique of Process-oriented

Constitutional Law Weber's theory of law suggests an internal critique of process-oriented constitutional law. The critique is internal because it fully accepts the fundamental and characteristic dichotomy of contemporary constitutional jurisprudence: the distinction between process and substance, between the means of choosing values and the values themselves. In other words, as an internal critique, a Weberian analysis accepts the structures of constitutional law as they are usually conceived today. And the conclusion of this Weberian critique inspires only despair: Weber's theory suggests that a process-oriented approach to constitutional law inexorably leads to substantive irrationality, the failure to satisfy substantive values and needs. In the context of racial discrimination cases, Weber's theory suggests not only that a focus on process allows racial discrimination to continue, but that it makes it inevitable!

From a Weberian standpoint, a process-oriented approach is the apotheosis of logically formal rational legal thought in constitutional law. Representation-reinforcement theory reduces constitutional law to one clear and general rule: The Court should police the political process.

This rule is attractive for its simple elegance: The Court never needs to become enmeshed in the shifting sands of substantive values, never needs to make any difficult choices. Instead, the Court focuses solely on the means for making those difficult substantive value choices. In racial discrimination cases, the Court asks only whether discriminatory intent infected the governmental action. Constitutional decision making is abstracted from the plight of the victims: in Washington v. Davis, the disappointed African-American applicants for the police force who had been eliminated by a written test with clear discriminatory effects; in McCleskey, the African American criminal defendant who faced the death penalty while knowing that a white defendant probably would not have suffered the same fate; and in City of Mobile, the citizens who had never elected an African American to the multimember city commission even though one- third of the population was African American. The actual contexts of these cases were pushed aside, forced into the background, serving at best as mere evidence of discriminatory intent.

A Weberian analysis acknowledges, however, that this process-oriented approach renders constitutional law simple and predictable. Weber emphasizes that logically formal rational legal thought has this advantage. The Court's task is greatly simplified since it searches only for discriminatory intent, not for obscure substantive values. And attorneys and commentators can more easily predict judicial action when the Court limits itself to policing the political process rather than seeking to define and enforce substantive values. Thus, in one sense, process-based constitutional law increases human freedom by increasing calculability for the Court, attorneys, commentators, and governmental actors. For instance, if a governmental actor knows exactly what can and cannot be done, then he or she is free to plan for the future, confident of the consequences likely to flow from any action. With regard to racial discrimination, the govern- mental actor knows that so long as his or her action is not tinged with discernible discriminatory intent, that action will not violate equal protection or the Fifteenth Amendment. The governmental actor need not worry long over the actual effects of his or her actions.

But Weber's theory of law underscores a monumental problem: A process-oriented approach to constitutional law necessarily means that substantive values and needs are ultimately not satisfied. In the racial discrimination cases, the Court's adherence to representation-reinforcement theory necessitates the continuing oppression of disadvantaged minorities. Process-oriented constitutional law necessarily means a lack of employment opportunities (Washington v. Davis), it means a lack of actual representation in government (City of Mobile v. Bolden), and sometimes it means even death (McCleskey v. Kemp). These substantively irrational results are not merely allowed under a process-oriented approach-they necessarily flow from it.

Moreover, Weber's theory suggests that this fate is inescapable: We are trapped within an iron cage of constitutional law. Since Weber expressly argues that Western society forever marches toward increasing degrees of formally rational legal thought, his theory suggests that, in constitutional law, we are forever marching toward a stronger and stronger commitment to process-oriented theory and adjudication. And so long as we continue this march, we insure that substantive values and needs will not be satisfied. Even if we initially turned to process-based constitutional law only as a means to attain fair substantive results, then the means has bizarrely become the end. Fair process itself has become the ultimate goal and value, thus obscuring and inevitably interfering with the satisfaction of other goals and values.

But why can we not simply reject formal rationality and instead pursue substantively rational legal outcomes? In other words, when Weber argues that the commitment to formal rationality is so pervasive that a long-term pursuit of substantive rationality is impossible, perhaps Weber is wrong. Weber would undoubtedly respond by emphasizing that a repudiation of logically formal rational legal thought is especially unlikely in the United States because of the firm commitment to academic legal training. Moreover, even if the American legal system could transform and commit to substantive rationality, a Weberian analysis suggests that the transformed system would inevitably lead to formal irrationality and thus the loss of a type of human freedom-the type of freedom that corresponds to formal rationality. According to Weber, the inverse relationship between formal and substantive rationality cannot be avoided. Also, John Ely's critique of nonoriginalist constitutional theories calls into question the very possibility of finding a workable theory focusing on substantive values. Finally, in the context of racial discrimination, any theory focusing on substantive values would need to account for and somehow over- come the cultural racism that is so pervasive in American society.

Thus, the conclusion of a Weberian critique is that modern constitutional law is laced with irreconcilable tensions between formal and substantive rationality-between process and substance. This Weberian critique is an internal critique. It accepts the current conception of constitutional law, acknowledges its benefits, underscores its inherent inconsistencies, and offers no solutions. Weber details the bleakness of our current constitutional reality: We live within an iron cage, with only despair and without chance of escape.

CONCLUSION

Max Weber's sociology is a modernist critique of Western society. The foundation for Weber's analysis is his neo-Kantian metaphysics: His focus on the tension between the thinking subject and an infinite reality facilitates his examination of the many tensions within Western institutions and thought. Freedom of contract, for example, enhances human freedom by increasing calculability but simultaneously decreases freedom by preventing individuals from satisfying their ultimate values and needs. In short, Weber is resolutely consistent in his focus on the tensions embedded in Western society. Reflecting this consistency, his analysis of legal thought parallels his analysis of economic action. In both analyses, Weber's conclusions are funereal: Western society is inexorably marching toward increasing formal rationality, yet is simultaneously and inevitably sinking into substantive irrationality.

Weber's theory of law has significant implications for modern constitutional theory and adjudication. One of the leading current constitutional theories is John Ely's process-oriented theory of representation- reinforcement, which the Supreme Court has applied in several contexts, including equal protection and Fifteenth Amendment racial discrimination cases. In following this approach, the Court theoretically refuses to make substantive value choices, relegating itself to policing the means- democracy-for making those choices. But a Weberian critique of representation-reinforcement theory leads to the following conclusion: A process-oriented approach to constitutional adjudication may maximize formal rationality, but it simultaneously and inevitably increases substantive irrationality. In racial discrimination cases, representation-reinforcement ensures that the substantive values and needs of minorities remain unsatisfied. We are thus locked within an iron cage of constitutional law, furiously chasing formal rationality like a hamster on a treadmill, all the while spewing out substantively irrational results.