# Lecture 20 - Weber on Legal-Rational Authority [November 10, 2009]

by Iván Szelényi

## Overview

The purest form—the ideal type—of Weber's legal-rational type of authority is bureaucracy. Legal-rational authority indicates that authority is invested in a set of rules and rule-bound institutions and that the creating and changing the rules are outside of the control of those who administer them; it does not mean, however, that the authority is democratic. Monarchs and even authoritarian leaders who recognize a set of laws external to their powers govern using legal-rational authority. The characteristics of bureaucracy include a fixed salary, posts based on technical skill rather than personal connections, a well-defined hierarchy, and continuous rules which bind the behavior of administrators and citizens or clients alike.

## Chapter 1. Introduction to Weber's Theory on Legal Rational Authority

Professor Iván Szelényi: Good morning. Now today's topic is Weber's theory of legal-rational authority and his theory of bureaucracy. This is one of those questions—those topics—Weber is probably the best known for. It's also a rather complicated issue. When we are saying legal-rational authority, we briefly refer to the rule of law, and we tend to associate in our mind the rule of law with liberal market economies and the liberal democracies. Well Weber has a very complex argument about this.
Indeed, legal-rational authority is the kind of system of authority which is predictable, because there is an observable law, everybody is subordinated to, which, in fact, has the most—the clearest elective affinity with a market economy. Nevertheless, as we will see, he will argue that—which is very counterintuitive—that the purest type of legal-rational authority is bureaucracy; and this is usually what we don't have in our mind when we are thinking about a market economy, that it is bureaucratic. So we have to deal with Weber's interesting claim that the purest type of legal-rational authority, which goes together with a market capitalist economy, is actually bureaucracy.
It's also interesting that Weber does not make an assumption that bureaucracy, legal-rational authority, or capitalism necessarily goes together with democracy. How democracy fits into the picture is rather problematic for him. Of course, we have to appreciate that in Weber's--when Weber was writing about these issues, somewhere between 1914 and 1920, I mean, virtually none of the countries in the world were liberal democracies or universal suffrage. The political systems of the world changed so much in the last hundred years. But he problematizes this relationship; and it's actually quite useful.
So this is the guideline for today's lecture. Again I start with the definition of the ideal type, the purest type of legal-rational authority, and then I try to dig into this unusual but very influential Weberian argument—that bureaucracy, in fact, is the purest type of legal-rational authority. And then I will look at various kinds of limitations of the exercise of bureaucratic authority. One is collegiality. The other is functional division of labor—right?--the separation of various branches of government, which is a limitation on bureaucracy, and representation, democracy, is a limitation on government. So you can see that he sees a tension—right?--between democracy, bureaucracy, legal-rational authority and capitalism. They do not go as easily together as usually we Americans tend to think about this. And then a couple of ideas about his view about democracies.

## Chapter 2. Pure Type of Legal Rational Authority

Okay, so let me start with what is the pure type of legal-rational authority. And there are really two issues we have to very briefly talk about. There are different ways how laws and norms can be established. We're already beginning to feel our way into the problem whether the rule of law and democracy are identical, or, you know, it can be democratic, or does not have to be that democratic. And then the question is who obeys what and whom, under legal authority?
So and a bit about legal-rational authority. So the argument is—right?--that there are various ways how laws or norms can be established. And well he said, legal authority rests on the acceptance of the following ideas. Right? Well, the norms, he said, can be established by agreement—that's what we usually think when we think about rule of law—or by imposition; it can be imposed on people. Right? And it can happen on the ground of expediency. It can happen because these are the most useful laws and therefore we either agree that this is what we want to obey, or there is an authority which they impose on us. Or it can be based on value rationality. It may not be that expedient, may be not necessarily immediately useful, but on the basis of shared values, or the values of those who impose those laws—and we tend to believe it—we will—this is the way how it will be established.
And then, of course, the legal system has to be somewhat consistent—this is important for the predictability of the system—and has to be intentionally established. Right? This is not coming from accident, but intentionally established. But the major point what I wanted to make—right?--that legal-rational authority, in Weber's view, can be actually an authoritarian system. Let's say Chile under Pinochet, the later times, after he established—consolidated his power; earlier on it was a tyrannical rule. But later on, Pinochet established a legal-rational order, though it was not democratic at all. Right? It was operating with a legal system which was imposed on people. And in history we have a number of instances when we can say, "This is country is a country of law and order. We know what the laws are; we actually think the laws are not unreasonable. But it was imposed by some power upon us."
Now the next question is who obeys whom? And well I don't want to dwell on this so long. This is quite clear. You already are familiar with this. What is important—right?--the person who is in authority, who issues orders, is himself subject to an impersonal order. So we are all subject to the same order. This is the essence of legal-rational authority, at least in the ideal type. Right? We know the exceptions to this. We know that Berlusconi, for instance, in Italy, though Italy is really a legal-rational authority, for a long time managed—right?--to pass a legislation which enabled him to escape prosecution; though he's probably involved in a number of criminal activities, but somehow he managed to escape criminal prosecution. But that's the exception. The rule is—right?--that even the person who is highest in charge is subject to the same authority and has to obey the law. And this is again very obvious; we already covered this, the opposite, the mirror image of it. Right? The members of the society of obedience, to the superior, not as an individual, but to an impersonal order, to the law as such. That should be quite obvious.
Now so what are the major characteristics of a system which is based on legal-rational order? There is a continuous rule-bound conduct. It's again, I think, does not call for too much clarification. It is continuously the same rules. The rules change slowly and with a great deal of difficulties, as we can see how Congress is struggling to pass a law about health care reform. It takes months or years before an important new piece of legislation gets into place. And usually new pieces of legislations, in legal-rational authority, are grandfathered. Right? If you pass a new law, you change the rules of the game, you usually grandfather them; those who entered the game before the new law are still under the rule of the old law. We do that at the universities all the time. Right? If, for instance, the degree requirements do change in a university, almost always these degree requirements are—this new legislation is grandfathered. You know the terminology. Right? It will not apply to people who are already in the program. It will only apply to people who are entering the program. Or one way of grandfathering it, that we give people a choice. You know? If you want to operate under the new rule, you can opt for the new rule; or if you want to stay under the old rule, you can stay under old rule. Only for those are the new rules binding who are entering the system now. So that's very important—right?--that it is continuous and rule-bound.
And he also said in legal-rational authority there must be a very clear separation of spheres of competence. Right? Who is competent to carry out what? And then you can always figure out how you navigate in a legal-rational order. You will be told, "Well, this is not my table, you go somewhere else." So you go and you ask something from the director of undergraduate studies, and the director of undergraduate studies might say, "Go and see the dean of your residential college"—right?--"because that is the sphere of competence of the residential college." That's the way how legal-rational order is supposed to operate. And the same, occasionally the dean of college will say, "Well, you have to see your sociology professor, or your economics professor." Right? You want to get transfer credit, for instance, for a summer course, and then the dean of college well said, "It is the department"—be it political science or economics or anthropology--"they will be able to tell whether this can be accepted as an economics course at Yale." Right?
And this also implies that there is always a hierarchy and a right to appeal. This is—again, you are very familiar with it. You know exactly if you get a grade from your discussion section leader, you can appeal to the professor to say, "Well, I don't think it's a fair enough grade. I deserve a better grade. My section leader made an error." And if you are unhappy with the response of the professor, you go to the chair of the department and appeal to the chair. There is a whole hierarchy of appeal—right?--where you can try to correct what you think is not right. So I think it's extremely important that you know exactly what is the chain of appeal and how far you can go up.
Usually there is also some specialized training which is expected for people to occupy certain positions. So well discussion section leaders will always be at least graduate students; usually, well, people can teach their own course once they were passed—they are Ph.D. students but all what they have is a dissertation to finish, or they must have their Ph.D. Right? So there is a specialized training necessary to perform certain functions, as such. And that's an interesting and very complex idea—right?--that the staff has to be separated from the ownership of means of production and administration. This is even more important for Weber's argument. Being separated—it's not that easy to penetrate what he exactly wants to say with this. What does it mean that you do not own the means of administration? It basically means that the source of rules and laws are outside of the administrator as such. If you want to have any change in the rules, there must be some procedure which is beyond the person who is administering that rules, how the rules can be changed. Right? This in order—you have to prevent unpredictability in the system. And that's why rules change all the time. But the fundamental principle is that these rules should not be allowed to be changed by the person who administers—right?--those rules.
So just to give a very trivial example, once you got your syllabus and the course requirement and what kind of assignments you have to deliver during the course in order to get credit in this course, then well working out these rules, a professor plays a role. But we have to get approved by the Courses and Curriculum Committee, and then in a way we are bound by those rules. So on the way I could not announce you today, "Well I changed my mind and there will be an unseen final examination where you will have to get a final examination--right?--and you will not know what questions I will ask, and I can ask any question for the whole course." Right? If I would change—right?--these rules right now, you would have, I'm sure, appeal against me, against my decision. Right? I'm bound by rules. So that means that I don't own the means of administration. Right? I am administering—right?--what is in the syllabus. Well there is a little leeway. Right? Occasionally I can give you an extension, for instance, if you come to me. Therefore it's--there is a little flexibility in the system. But fundamentally the course should be taught as it is in the syllabus, and the requirements should be like it is in the syllabus. That's what it means—right?--that you do not own—right?--the means of administration, unlike in traditional authority where a feudal lord does have—does own, appropriated, some means of administration from the monarch. And a British or a French high aristocracy could make rules; not implement the rules, but could make rules as well.
The unique feature of modern legal-rational authority is that this becomes an impersonal process, which is not done—there is a separation between those who implement the rules, and there is a separate procedure—right?--how the rules are being established. Is that reasonably clear, what ownership of means of administration means? As I pointed out, it's a very Weberian idea. Right? For Marx—right?--the whole issue is the ownership of means of production. For Weber this is everything about the administrations—the means of administration.

## Chapter 3. The Bureaucracy

Okay, now we come to this very interesting Weberian theory of the bureaucracy: very interesting, very controversial, in many ways very counterintuitive. You may say it is false. Well we will see. That is a nice topic for discussion sections. And this is what I will go through—a number of issues. What is a bureaucracy? Weber makes this quite incredible claim, what first you will completely reject, that the most efficient organization is the bureaucracy. Right? That's exactly the opposite what you think. When something is very inefficient, then you say, "Well this is so bureaucratic." Right? Weber nevertheless claims that the most efficient organization is bureaucracy.
Then the question is how is bureaucracy related to capitalism and socialism? Is really capitalism a bureaucratic organization? What is the relationship between capitalist market economy and bureaucracy? What are the consequences of bureaucracy? And also then some contradiction of bureaucratization.
Now let's just quickly rush through what are the characteristics of a bureaucracy. Well, he said, "the purest type of legal authority"—this is, as I said, counterintuitive--"is that one which employs a bureaucratic administrative staff." And well what are the characteristics of this staff in order to qualify to bureaucracy? Well they have to be personally free. So it cannot be clients—right?--of a mentor. Right? They are legally free individuals. That makes it so different—right?--from a traditional organization. That's why a family is not a bureaucratic organization, because you are not there by choice. Right? And then a bureaucracy is organized into a hierarchy of offices—this is something which basically we already covered—and the offices are filled by a free contract, and in this contract what your qualification is, that's what we call—right?--meritocracy. People do have a certain degree, and that degree qualifies them to be incumbents of a certain office.
And they receive a fixed salary. It's not quite a bureaucratic organization if you are working for a commission. Right? You are really in a bureaucratic organization when you sign a contract and you know exactly what your fringe benefits will be and what your annual salary will be. Typically the office is the sole occupation of the incumbents, and it constitutes a career. This is also very important; again, very different from a traditional organization where people could actually be incumbents of a number of positions and could draw, in fact, even incomes from a number of positions. In a pure bureaucratic organization, you really can have only a single occupation. If, for instance, somebody is appointed with tenure to Yale, and is coming from another institution, he'll have to resign from his or her tenure at the other institution. If you are employed by Yale, you can be only a Yale employee; you cannot hold multiple jobs at the same time.
And it constitutes a career. The career means there is a ladder. You have some sense how you will progress in this bureaucratic hierarchy. Again, universities are classical bureaucracies—that you enter as an assistant professor; then you are, seven to nine years, depending on the institution, without tenure; then you are being promoted to tenure; then you expect at one point of time to become a full professor; blah-blah-blah. Right? This is what it meant, it is a career. And in many bureaucratic organizations, even in the business world—right?--you have a sense how you progress. In a law firm—right?--if you enter a law firm—right?--you have a pretty clear idea; it's actually very similar to the universities. Usually for seven years you are working for the law firm, and that's when you can become—right?--a partner in the law firm. Right? So you have a sense how your career will unfold. Well this is something we already kind of covered—right?--that you are separated from the means of administration, because you are subjected to discipline and control.
Now comes the very controversial idea, and that we have to talk about it. Weber's claim, which is very much against commonsense, that the purely bureaucratic type of administration is capable of attaining the highest degree of efficiency. Well let me, on the other hand, from this citation, underline an important point here. And this is—of course Weber was talking about a very specific type of organization, bureaucracies, which were, relatively speaking, historically quite efficient—right?--the Prussian type of bureaucracy. But here he emphasizes—and these are two very important words--"from the technical point of view." Right? The bureaucracy, from the technical point of view, is the most efficient organization. It does not necessarily mean that it does achieve the highest welfare for people who are seeking to navigate in a bureaucratic organization. But technically speaking, it is the most efficient. Why? Because it has a very high degree of predictability. I mean, this predictability might suggest that it will take you a long time to get through of that bloody red tape—right?--what the bureaucracy imposes on you. But you know exactly the red tape, and you know, if you are stuck, how to try to appeal and to get the process moving. And therefore the crucial issue he said, why the bureaucracy is so efficient, because it is technically competent and it is predictable. And this is what makes it actually so—to fit so well with a market.
Well he said, "And what else?" If it is not bureaucracy, how can you otherwise organize an organization? If it is not done bureaucratically, then it is dilettantism. Right? And you may want to think about this. Now here comes the question about how does bureaucracy and capitalism fits into? And now he makes a very intriguing, very provocative claim. I think it is very deep, and deserves your attention. He said, "The primary source of superiority in a bureaucratic administration lies in technical knowledge." Right? Bureaucracy is domination through knowledge. Well, a very provocative, very important claim. Right? Bureaucracy is—right?--the par excellence meritocratic organization—right?--where people who are issuing command are issuing command with the assumptions that they are the most competent people to carry this out. Well whether this is the case or not—you remember, Weber is always operating with ideal types, or pure types. The concrete cases may be different from it.
You may have people who are not competent to exercise the authority, what they do exercise. But I think it is important that you have the ideal type, because then you can be upset, and you say, "These bloody bastards." Right? "It is incompetent; cannot do the job." And then you can appeal and to say, "Why don't you remove this person, because this person does not know what his or her job is?" And actually such appeal very often is consequential. People occasionally are removed their position if their incompetence is being demonstrated. Well this is very difficult to do at a university, because universities, we have this system of tenure. You know? After you've suffered for seven years as an assistant professor, you are promoted to tenure, and then it is very difficult to get you out of the job. But even at the university this is possible. If you find out that I'm completely incompetent—right?--you document that I am incompetent—right?--that I am just misinterpreting all the authors you had here. And then you can appeal—right?--to the university, and you can say that I really should be removed; my tenure should be invoked. And if I'm found to be incompetent, I will lose my job; but the only way to do it, is through my incompetence. But actually universities very rarely do it, because it's a very painful exercise. But because they are bureaucracies there is—right?--the rule that it can happen, and it should happen in these cases.
And then he said, "Well from this point of view, it really does not matter whether an economy is organized as a capitalistic economy, based on private ownership, or whether it is organized as a socialist economy, based on public ownership." Right? And, in fact, now he goes even further; and it's very interesting what he's got to say here. He's writing somewhere in 1919, 1920. The Soviet Union already exists, Soviet Russia already exists. There is already a society which calls itself socialist, which eliminated private ownership. And he said, "Well socialism would require a still higher degree of formal bureaucratization than capitalism." That's a very interesting idea. Though until now he suggested—right?--that the bureaucratic organization fits the best with free market economy, now he said actually socialism will be even more bureaucratic.
And then I think what comes very—it's a very intriguing idea, and he said, "But the big problem with socialism is that there will be a big conflict here between the formal rationality and substantive rationality, what the bureaucracy carries out." And you know by now—right?--or you have at least a hunch what he's getting at between formal and substantive rationality. Right? Formal rationality is that you are simply implementing the rules of the game. Substantive rationality is you are actually concerned with the welfare, the substantive goals of the action. And he said, "Well, if you have a publicly owned economy, centrally planned economy, then the central planners make substantive decisions about the economy." They decide, for instance, where government or taxpayer money should go to—which branches of the economy should be investment going to. Right? In a capitalist economy, governments typically cannot do that. Right? They set the rules of the game. Well the best—they manage interest rates and they may be able to manage the currency exchange rate, but they cannot allocate resources across the economy. Of if they do, then people will say, "We are on the road to socialism." Right? To the extent substantive rationality is involved.
But he said, "Well if it is socialism, there will be this big tension." Right? You cannot be at the same time formally rational and substantively rational. You either consider the content of your decisions, or you are concerned simply with the procedures of the decision. If you are concerned with the procedure, that is formal rationality. If you are concerned with the content, that is substantive rationality.
Let me just give you one example about the legal system. Indeed, in Communist societies—and probably to some extent even China today, much less so than it was let's say thirty of forty years ago—well when justice is being served by the court, the court is not blind to who the people who are being accused of committing some crime is. The communist legal system called itself a class law; that, in fact, the purpose of the legal system is not to be blind—right?--who committed the crime. The purpose of the legal system is—that was the kind of legitimacy claim under Communism—to defend the interests of the working class. Right? And therefore that was specifically a legal system based on substantive rationality. Right?
Well capitalist legal systems tend to be procedurally—right?--rationalistic, formally rationalistic. In principle it doesn't matter who the person is when you are serving justice. This is again the ideal. Right? In concrete cases actually judges might consider some substantive characteristics of the person who is on trial, not simply to implement the law. May consider as mitigating circumstances—right?--for instance, when they are passing the law. And, of course, there are other reasons how actually substantive considerations enter the game. You know? If you are white and rich, you can hire a better defense lawyer and your chances to get off the hook within the same rules are better. So substantive considerations enter the thing. But that's the exception; that's not supposed to happen. We are angry when this happens. Right? We want to have a faceless legal system. Right? Justice is blind. Right? This blindness of justice means—right?--this is simply procedurally just—right?--and not substantively so. Right? This is why justice is shown with blind eyes.
Now what are the consequences of bureaucratization? Here are some of them. He said there is a tendency of leveling of interest; since everybody is in principle equal before the law and therefore interest will be leveled. You are not supposed to take into account people's position in it. Well there is a tendency—meritocratic tendency—that people higher up will have higher levels of training, or more training, as such. And—this is again justice is blind—what is important is that the essence of a bureaucracy has to be a formalistic impersonality: sine ira et studio, without hatred and passion. Right? This is why occasionally you are kind of upset when you are confronted with the bureaucracy. You have a special problem—you know?--and then the bureaucracy tends to be insensitive to your special problem—right?--when it is a real bureaucracy. Right? You can say, "I just had a fight with my partner and this is why I cannot take the test." Well, sine ira et studio. I mean, in a real bureaucratic, discussion leader or professor will say, "Too bad. This is your personal business. The test is right now." Right? "You take it or leave it." Well, I mean, we are usually not that stupid bureaucrats. But that's the spirit of bureaucracy. Right? Without hatred and passion; that also means that you are not motivated by personal feelings. You don't differentiate this is a person I like and then I give preferences; or dislike, and therefore give a worse grade.
All right, there are a number of contradictions of bureaucracy. It is very formalistic. And he said there is also another interesting tendency. Though it is formalistic and it's supposed to go simply by the rules, occasionally, not only under socialism, in all systems the bureaucracy tends to have some sensitivity to substantive rationality, to the welfare of the people who are under the bureaucracy. And then it can be turned into a clientalistic system; the bureaucracy can have these tendencies. And think about welfare bureaucracies—right?--which do have a great deal of clientalistic tendencies built into them.

## Chapter 4. Limitations of Bureaucratic Authority

Well, and there are these various limitations of bureaucratic authority. One is collegiality, division of powers, and representation. Well I don't want to dwell too long on the notion of collegiality. Collegiality, he says, really grows out of what we knew as professional groups or professional organizations. There are different ways how collegiality can operate. One way—that means that you are interacting with other people in the same organization, on the basis of collegiality. You can get a good sense of this collegiality; for instance, it's very important in the medical profession. If you go to a doctor for a second opinion, this doctor is really not supposed to say that his or her colleague, the other doctor, really screwed it and he gave you the wrong diagnosis or the wrong therapy. Right? Collegiality means that you stick together—right?--that the profession sticks together. There is a very strong sense of collegiality among lawyers, or at least supposed to be. The ethic of the legal profession is very much collegiality.
And it is also incidentally in the universities. I mean, faculty is not supposed to badmouth each other. Right? They certainly, towards students, they have to show that they have a collegial relationship with each other. Mutual respect binds them together. Occasionally there is what he calls veto collegiality; the collegiality does give veto right to certain people to run this organization. A single person can veto a decision, as such. Again, very typical in universities when it comes, for instance, to a decision whether somebody will be granted a permanent position in a university; so-called tenure, there is actually—the president of the university usually has a veto right and can veto. No matter that all bodies approved that, the president usually has a veto right—can veto that decision. It uses it very rarely, but occasionally it does use its veto right. So even in a collegially organized bureaucracy, there is these individual veto rights; otherwise, collegiality usually operates through the different committees and advisory boards. I mean, collegiality usually is emerging in a situation where you have a common trade or a common profession. That's when a group is being organized as a collegial bureaucracy, as such. And many of you will end up in professions in which you will have such a collegial environment, as such. Okay.
The other issue is—which is also a limitation of the functioning of the bureaucracy—right?--collegiality meant—right?--that though the bureaucracy is supposed to be blind to individual differences, it's not always, because we have loyalties towards each other, based on our profession. Lawyers are loyal to lawyers, and doctors are loyal to fellow doctors, and professors have a degree of loyalty.
Now the other one is division of powers. Well this division of powers, what Locke and Montesquieu and Rousseau were talking about, well it's a functional system—he cites Montesquieu about the separation of power—and that creates some degree of unpredictability in the system; but necessary, but creates some degree of unpredictability. Nevertheless, this is the way how to prevent tyranny. So therefore it is good for the economy; by what he means for the market economy.
And then comes the question of representations, and different forms of representations. Well there are—again, representations can be democratic, but is not necessarily all that bloody democratic. In fact, there is a possibility of representation when the representation is happening through some hereditary means. Traditional authority; people who were born in certain positions, like Montesquieu himself, was supposed to represent certain interests, which is beyond the personal interests of the person—right?; was supposed to represent the interests of the whole estate, what it was standing for. Well it's also—in modern times we do have a representation where representations can be selected by rotation or lot—in Ancient Greece this happened—and there can be a limited mandate; they are not representing necessarily the interest of the constituency and they can be recalled. This was typical of Communist bureaucracies. Or there can be what he calls free representation—it's what we would associate to democracy—where the representative is elected, rather than selected or appointed.
But it is also not bound by instructions; is only obliged to express his own conviction. So this is what we have seen in the Congress happening. Right? That Democrats voted with Republicans, because those Democrats argued, "I'm not under party discipline." Right? "I am acting out of my conscience."
Well a couple of ideas about free representation, and how it goes with a capitalist economy. Well what is crucial—right?--and Weber keeps coming back and back to this—what is vital for a capitalist economy is to be calculability and reliability. And well in early stages, in fact, there was property qualification, who could actually vote, and that was implemented in order to make the system more predictable for the propertied classes. There was a great deal of concern by the bourgeoisie to give universal suffrage, because they felt then this will be unpredictable, who will win the elections.
In fact, very often, these were monarchs and absolutist monarchs, who were pushing for extension—right?--of suffrage, because they wanted to use this against the propertied bourgeoisie. That's again something very counterintuitive, but I think historically a very accurate understanding. Right? So one has to be very careful what exactly the relationship with a capitalist economic order and democracy is. Well so Weber's fundamental argument is what many people who do the history of the democratic movement will agree; others will disagree with him. Again, a good subject for discussion. Parliamentary free representation was the product between struggles; actually struggles between monarchs and the bourgeoisie. Well I think I'll just leave this here. I probably gave us enough food for the discussion. Thank you.