TERM PAPER

ON

FORMAL LEGAL RATIONALITY

Submitted By:

ANIRUDDHA PRATAP
M. Phil. 1st Semester
Centre for Study of Law and Governance
JNU
 INTRODUCTION

According to Weber, the rationalization of modern law in Western societies takes on

the specific form of formal rationalization. In simple words, modern law only makes sense
when it is ‘formally’ rational. This requires, first, that adjudication is efficient and regular in
its autonomous proceedings and, second, that decisions are logically referable to authoritative
normative rationales transparent to trained professionals. 1 The aforesaid statement
immediately invokes our interest in the words ‘formal’ and ‘rational’ used by Weber.
Rationality means the use of explicit, abstract, intellectually calculable rules and procedures
(instead of)….sentiment, tradition and rule of thumb. 2 To be simpler in deliberation by
rational he means governed by rules or principles. As noted by various scholars that Weber’s
use of word ‘rational’ has been a source of perpetual confusion to the readers and as author
himself states repeatedly that ‘rationalism is an historical concept which covers a whole
world of different things’.3 Kronman asserts that “for a legal order to be rational in this sense,
it is only necessary that the rights and obligations of individuals be determined by principles
having some degree of generality and that the principles in question be identifiable. The
closer a legal order comes to being a collection of idiosyncratic judgments or decrees, each
tailored to a particular case and incapable of being subsumed under a limited number of
identifiable rules the less rational it is in this sense.” 4 Similarly Trubek also argues that the
primary axis, rationality/irrationality, refers to the presence or absence of general rules as a
means of deciding cases: the greater the extent of the generality and universality of the rules
employed, the greater degree of rationality by the system.5

Thus rationality in this sense relates to the idea of being governed by rules or principles,
though this is not the only sense in which Weber uses this term. Kronman acknowledges
atleast four distinct ways in which the term has been used by Weber which is as follows: (1)
governed by rules or principles; (2) the systematic nature of the legal order; (3) based upon
the logical interpretation of meaning; and (4) control by the intellect in reference to the
dispute resolution. Though the term has been used in the aforesaid ways but they are inter-
related and taken together they manifest the necessary condition for existence of formal legal
rationality.
1
Max Weber, Economy and Society: An Outline of Interpretive Sociology, ed. Guenther Roth and Claus Wittich
New York, 1968, pp. 812-13
2
Dennis Wrong, Max Weber, New Jersy, 1970, p. 13
3
Max Weber, The Protestant Ethic and the Spirit of Capitalism, tr. Talcott Parsonsn New York, I958, p. 78.
4
Anthony T. Kronman, Max Weber, Stanford, 1983, p. 73
5
David M. Trubek, "Max Weber on law and the rise of capitalism" Wisconsin Law Review 1972:720-753.
 In a similar manner, Eisen recognizes half dozen component elements of the term
‘rationality’. The first is purpose i.e. conscious intent of actor to achieve a given end. In all
rational action there is the denial of arbitrariness, because the actor acts for a known purpose,
and because this action in concert with others increases (or attempts to) the extent of control
exercised over the world, and so diminishes (or attempts to) the sway of unpredictable, i.e.
chance event. The second is calculability. Calculation is directed at certainty through the
computation of 'chances' in a reliable (again, proven statistically in experience to be so)
manner. For this reason other attempts to achieve certainty (magic and divination, for
example) are 'irrational': they neither employ calculation, nor are they efficient in achieving
the certainty sought. The third is control, which is related to both calculation and purpose but
differs in degree of logic. Control is all about freedom from contingency and the unexpected
and therefore brings a greater measure of predictability. The fourth is logical. A legal system
which has its own 'logic' and purports to be 'gapless' is logical to that extent. The fifth is
universality which is often employed in assessing the rationality of institutions. The last,
rational connotes systematic methodical organization which relates parts to whole in the
manner most efficacious for the achievement of desired results, a usage especially applied to
the study of organization.6

But a legal order to make more sense need to be ‘formally’ rational and not simply
rational. Matza argues that in legal systems that use formal rationality, decision making
should use highly abstract rules to deduce decisions in particular cases. Ideally, these rules
are general, address broadly defined categories of acts, and are applied without personal or
class favouritism. The goal of formal rationality is to treat like cases in a like manners o that
arbitrariness in decision making is minimized.7 If the dispute-settlement is by truly legal
procedures, the system can be designated as ‘formal’. In contrast, if the reliance on extra-
legal grounds is more the system will be less formal and more substantive. This brings us to
the second distinction of Weber’s typology (first being the rational/irrational) i.e. formal and
substantive type of legal thinking. Sterling and Moore present these typologies in a more
systematic manner with the help of a table given below.

TABLE 1. Typology of Law and Legal Decision Making8

6
Arnold Eisen, The Meanings and Confusions of Weberian 'Rationality' The British Journal of Sociology, Vol.
29, No. 1 (Mar., 1978), pp. 57-70
7
D. Matza, Delinquency and Drift, New York, 1964, p 21
8
Joyce S. Sterling and Wilbert E. Moore, ‘Weber's Analysis of Legal Rationalization: A Critique and Constructive
Modification’ Sociological Forum, Vol. 2, No. 1 (Winter, 1987), p 74
 Legal Rules Employed are:
Irrational Rational

Formal Formal Irrationality Formal Rationality

1. Lack of general rules; 1. Use of general rules

no control by intellect. to decide cases.
2. Decisions determined by 2. Rules derived from
Supernatural forces: oracles fixed legal concepts
and ordeals. independent of moral,
religious and other
criteria.
3. Characterized as: 3. Characterized as
“Charismatic” or revealed positive law.
Law.

Substantive Substantive Irrationality Substantive Rationality

1. Case-by-case decision 1. Use of general rules
making. to decide cases.
2. Decision guided by 2. General rules
extra-legal principles- derived from religion,
ethical, emotional or ideology, economics,
political grounds. etc. rather than law.
3. Characterized as 3. Characterized as
traditional law. deduced or natural law.
Weber discusses these four categories of adjudication viz. formally irrational, formally
rational, substantively irrational and substantively rational. He gives examples for each
category, e.g. formally irrational adjudication is exemplified by primitive procedures for
deciding disputes on the basis of oracular pronouncements, substantively irrational
adjudication is similar to ‘khadi-justice’, substantively rational is exemplified by certain
priestly or theocratic legal systems and by what he calls ‘the patriarchal system of justice’,
and the formally rational is equated to the modern civilian codes derived from Roman law
and based upon the teachings of the Pandectists. The reasons for the aforesaid categorization
are summed in the above-mentioned table given by Sterling and Moore.

Since Weber’s death there has been a dramatic expansion of substantive adjudication, as
welfare state regulations and rights bring purposive principles and informal procedures into
prominence, overshadowing the systematized norms and technical litigation of Weber’s
formal rationality model.9 Also the model is not as independent of political process as it
pretends to be.

INFORMALISM IN LOK ADALATS

We now move to the second part of the paper which tries to examine the experience
with informalism in the sphere of Lok Adalats in post-independent India. In words of Unger
formalism is a “commitment to, and therefore also a belief in the possibility of, a method of
legal justification that can be clearly contrasted to open-ended disputes about the basic terms
of social life, disputes that people call ideological, philosophical or visionary.” 10 In simple
words formalism talks of decision-making which is according to rules and is free from extra-
legal principles such as emotions, ethics, politics etc.
The term informalism has been used to explore the effects of power exerted by different
forms of judicial innovations in the realm of state law whether these function under the sign
of alternate dispute resolution or through alternate state courts such as lok adalats (literally,
peoples courts).11 Galanter and Krishnan argue that informalism introduced by Lok Adalats is
debased informalism as in place of getting justice what the litigants get is a lower quality of
dispute resolution which ends up in offering quiet less than what the litigants deserve. 12 Lok
Adalat literally means “people’s court”, it is basically a system of alternate dispute resolution
9
Niklas Luhman, Political Theory in Welfare State, (Berlin and New York: De Gruytor, 1990)
10
Roberto Unger, The Critical Legal Studies Movement, 96 Harv. L. Rev., 1983, pp. 563, 564
11
Pratiksha Baxi, Acess to Justice and Rule-of-(Good) Law: The Cunning of Judicial Reform in India, p. 13, See
[Link]
12_India/12_4_Access_to_Justice.pdf (visited on 26-10-10)
which was introduced even before The Legal Services Authority Act of 1987 which
specifically provides for it. The Act visualizes a regime of Lok Adalats with jurisdiction over
“any matter”, composed of judicial officers and other qualified members, authorized to
proceed according to its own procedures, which need not be uniform and to be “guided by the
principles of justice, equity, fair play and other legal principles”. Rather than an award in
accordance with the law, the Lok Adalat is instructed to “arrive at a compromise or
settlement”. The 1994 amendments to the act mandate that the compromise “shall be final
and binding on all the parties to the dispute, and no appeal shall lie to any court against the
award.”13 There have been numerous works on the functioning of Lok Adalats and the bulk of
criticisms associated with it, I do not intend to discuss them here. I would rather talk about
some contentions made against the Lok Adalats which I feel are not that healthy.
To start with there is this notion that Lok Adalats involve lot of costs in dispute
resolution, to be more specific Galanter and Krishnan argue that “Lok Adalats consume
scarce resources of money, personnel, attention, and energy. These resources might be better
employed to address the fundamental problems facing the courts in India.” 14 I fail to see what
kind costs the authors are talking about. If we talk of money then for holding of Lok Adalats
firstly, the district court premises are used for which no extra expenses in my knowledge are
incurred. Secondly, the judges and the personnel are not paid any extra salary for holding of
Lok Adalats because in practice the district level or the lower judiciary is used to dispense
such cases and usually such Lok Adalats are held on Sunday. So in fact the district level
judiciary along with their personnel are supposed to hold of Lok Adalats with no additional
incentives on their salary (these are the arrangements in actual practice which scholars never
talk of appreciate). Moreover it is more feasible for the litigants or parties to attend the court
on Sunday rather than on weekdays which normally is for the litigants as it results in loss of
leaves for the working people and loss in business for the businessman. Thirdly, if a case
goes to Lok Adalat the total amount of court fees paid by the parties during the course of the
proceedings is paid back to the parties. And in a Lok Adalat the fines imposed on the parties
are very minimal as compared to the normal proceedings in a court of law.

12
Galanter, Marc and Jayanth K. Krishnan, Debased Informalism: Lok Adalats and Legal Rights in Modern India,
2002, Paper Presented at the First South Asian Regional Judicial Colloquium on Access to Justice, New Delhi, 1-
3 November.
13
Galanter, Marc and Jayanth K. Krishnan, “Bread for the Poor”: Access to Justice and the rights of the needy
in India, Hastings Law Journal, Vol. 55, No. 4, 2004, p. 804
14
Id. at p. 829
 Another criticism against Lok Adalats is that the decision is imposed upon the parties
and they are having little say in the matter. I disagree with the aforesaid, the only discretion a
judge is having is when he has to decide whether he should send the case to Lok Adalat or
not. Once a case goes to a Lok Adalat the dispute is resolved only with the consent of the
parties and if they do not wish to resolve the case will go back to the normal course i.e. to the
district level courts. And it is hard to believe that parties compromise under the fear of judges
because if that was the case then judge can exercise their influence at the very institution of a
suit and ask the parties to compromise. If the parties are ignorant of their rights about the
consent part then who is to blame, the informal structure or lack of awareness? Or the
reluctant lawyers who discourage dispute resolution via Lok Adalats?

Next criticism which I would like to mention is that Lok Adalats are accused of taking up
only a particular kind of cases e.g. petty criminal cases and judges in normal courts without
any reasonable grounds send cases to Lok Adalats (which can be decided then and there).
Well I would say that there are actually cases in which nothing considerable has to be done
apart from minimal fine or which are in a state of being compromised. Such cases increase
the burden of the regular courts and are better dealt in Lok Adalats. As per judges arbitrarily
sending the cases to Lok Adalats I will put forward that in judges of district level are every
month assigned a quota (number) of cases which they have to adjudicate. So more they
adjudicate better it is for them to satisfy that quota. Under such scheme if a dispute which can
be decided then and there and the adjudication of which will help the judge to meet his quota
it is hard to believe that a judge will avoid that and send it to Lok Adalat.

CONCLUSION

I would like to conclude by saying that a legal order to be more sensible needs
formalism as well as informalism. I feel that formalism promotes mechanical interpretation
and application of law which may result in the miscarriage of justice on occasions as
sometimes technicalities of law prevents justice from being done. Though this is not to
suggest that informalism promotes a model which is perfect or flawless, what would be ideal
will be a blend of both rather than having strictly formal structures. To end the discussion I
would quote Thomas Shaffer who says that the world we teach about is a world built on
rights and duties; the world of practice is a world built upon human needs and emotions - it is
relatively irrational, unsolomonic, and fluid. The world we teach about is a world which
invokes lawyers as advocates, in the real professional world the lawyer is a manipulator who
knows how to get what the client wants with subtle, unpublic, and unjudicial intrusions into
the power structure....The world we teach about is, finally, a world in which standards of
decision relate more or less to fairness; the real professional world, in property-settlement
practice especially, is a world of decisions in which standards of decision relate to love and
hate.