TITLE:
Weber’s Concept of Modern Law and Labor Law: A Critical View
AUTHORS:
Pablo Biondi
KEYWORDS:
Weber, Modern Law, Legal Formalism, Labor Law, Marxist Critique of Law
JOURNAL NAME:
Beijing Law Review,
Vol.15 No.3,
September
19,
2024
ABSTRACT: The current article presents a critique of Max Weber’s sociology of law, specifically in what concerns the concept of modern law. It is argued, as the core of the critical appraisal, that Weberian notion of modern law is restricted to 19th century formalist approaches. There is a clear contrast between Weber’s theoretical proposal and the anti-formalist tendency that emerged as hegemonic in the first decades of the 20th century. If we consider the emerging branches of law at the period, such as labor law, it is possible to note that legal systems were increasingly open to contents that proved to be incompatible with a formal legal rationality. In order to correctly understand labor law’s legality, it is necessary to adopt the perspective of legal subjectivity, a Marxist analysis provided by Evgeny Pashukanis. Such approach is able to explain the nature of both classic private law (praised by legal formalism) and labor law (endorsed by anti-formalist legal thinking).