Encyclopedia of SociologyVol._3

In the following decades, most Latin American countries wavered between unstable democracy and nondemocratic forms of rule. South America has been especially prone to two of these: populistcorporatist regimes and bureaucratic military dictatorships (Malloy 1977; Pike and Stritch 1974; Stepan 1978; O’Donnell 1973, 1988). Many South American polities evolved cyclically in that period: populist-corporatist regimes (such as those headed by Juan Peron in Argentina and Getulio Vargas in Brazil) were frequent from World War II to the 1960s; military regimes and their coercive counterparts in society, guerrilla warfare and terrorism, predominated in the 1960s and 1970s (in Argentina, Brazil, Chile, Uruguay, and Peru); and democratization has swept the area in the 1980s.

MODERNIZATION THEORY

Modernization perspectives shared two core assumptions that distinguished them from dependency and world-system theories. The first was that the central variables for understanding the development of a society are internal to the society; the second, that development is an evolutionary process, whose main characteristics are common to all societies. These commonalities underlie different approaches, which can be classified in terms of the variables they have considered central for the analysis of development, because of their primary causal weight, and in terms of the nature of the evolutionary process societies were supposed to undergo.

A first approach, sometimes of Parsonian or anthropological inspiration, privileged the value system, or culture, as the basic part of society, in the sense that values were expected to determine the basic traits of the economy or the polity. Change in values or culture appeared then as a key dimension in the process of transition from ‘‘traditionality’’ to ‘‘modernity.’’ Examples of this perspective are Seymour Martin Lipset’s analysis of entrepreneurship in Latin America (1967) and Howard Wiarda’s argument about the influence of the corporatist Iberian tradition on the political evolution of Latin American societies (1973).

The second approach was structural, in the sense that it viewed the social or economic structures as the determining part of society, and that it saw changes in these structures as the central

aspect of the process of development. The most elaborate versions of this perspective were inspired in Durkheim and in the most structural version of Parsonian theory: They regarded the degree of integration of society as the key characteristic of the social order and focused on the processes of differentiation and integration as the keys for the understanding of development, still conceptualized in terms of the ‘‘traditionality-mo- dernity’’ continuum. Gino Germani’s model of Latin American modernization in terms of the counterpoint between mobilization and integration is a good example of this perspective (1962, 1981; see also Kahl 1976). The typology of stages of economic development made popular by the influential Economic Commission for Latin America (ECLA) of the United Nations (Rodriguez 1980), shared these presuppositions.

These approaches spawned important types of sociological research in the 1950s and 1960s, but reality showed that the assumptions behind the evolutionary paradigm were problematic. Toward the end of the 1960s, it became clear that the predictions derived from the model of the traditionality-modernity continuum in relation to the social structure and the political system were inconsistent with the facts. In the social structure, the expansion of capitalist agriculture and the development of industry in societies with large peasantries did not lead to the dissolution of ‘‘traditional,’’ or precapitalist, rural social relations. Its survival (Stavenhagen 1970; Cotler 1970) and the emergence of what came to be known as ‘‘dualistic,’’ or structurally heterogeneous, societies meant that the patterns of social development of Latin America were not replicating those of the western European countries that were considered as the universally valid models of modernization.

Political processes in the 1960s and early 1970s were also paradoxical in relation to this theory: Lipset’s thesis that liberal democracy was a correlate of development (as measured by variables such as income, urbanization, industrialization, and education) ([1960] 1981, pp. 27–63) seemed to be contradicted by the fact that it was precisely the most ‘‘modern’’ countries (Argentina, Uruguay, and Chile) that were the most prone to instability and authoritarianism. On the basis of this propensity, Guillermo O’Donnell (1973) argued that, in the peculiar situation of Latin American industrialization, countries of this type were

the most likely candidates for bureaucratic authoritarianism. This proposition was itself questioned from different perspectives (see Collier 1979), but the lack of correlation between development and democracy seemed nevertheless obvious at that time. Later, the wave of democratization that swept Latin America in the 1980s and the revolutions of 1989–1990 in eastern Europe would indicate that the relationship proposed by Lipset does exist, even though it does not seem to be linear.

DEPENDENCY AND WORLD-SYSTEM

THEORIES

Approaches based on dependency and world-sys- tem theories were the contemporary elaboration of themes found in Marxism, the theory of imperialism in particular (Lenin 1968; Luxemburg 1968). They were based on two propositions that sharply contradicted the assumptions of modernization theory. The first was that internal characteristics of a society, such as its level of development or the nature of its political system, are determined by the society’s position in the international system. The second assumption was a corollary of the first: Since the main causes of development are external, there is no reason to expect that all societies will follow the same evolutionary trajectory. On the contrary: The world system is organized into a more dynamic, developed, and powerful core, and a more passive, backward, and dependent periphery. Beyond these commonalities, there were differences between the dependency and world-sys- tem approaches.

Dependency theory, which in itself was a Latin American product, emphasized the radical distinction between core and periphery, and it took dependent societies as its unit of analysis. Its focus was on the mechanisms it claimed were responsible for the preservation of underdevelopment, the transfer of economic surplus to the center via trade and investment in particular (Cardoso and Faletto 1979; Frank 1969, 1972). Wallerstein’s world-system approach (1974), on the other hand, singled out the world economy as the unit of analysis, and it explored the functions of different types of society (core, semiperiphery, and periphery) in that system.

These theories have generated, since the late 1960s, important pieces of research. Fernando H. Cardoso and Enzo Faletto’s comparative analysis

of Latin American societies (1979) showed how different positions in the world economy generated different class structures and different patterns of development (see also Kahl 1976). Peter Evans (1979), in a study of Brazil, showed how the peculiarities of the country’s development were shaped by the interaction among the state, foreign capital, and the domestic bourgeoisie. Gary Gereffi (1983) explored the consequences of dependency in a key industry. From a world-system perspective, Alejandro Portes and his colleagues (1981, 1985, 1989) conducted important studies of the labor flows in the world economy, and of the articulation between the formal and informal economies.

These approaches improved our understanding of Latin American development in two ways. First, by focusing on the effects of external factors and processes (those in the economy in particular, but the political and cultural ones as well), dependency and world-system perspectives corrected the assumption characteristic of modernization theory that societies could be studied in relative isolation. Second, since these theories constructed models of the world economy that were either pericentric (Doyle 1986), as in dependency theory; or that emphasized the analysis of peripheral and semiperipheral social structures alongside that of the core, as in world-system theory, they balanced the emphasis on core structures and processes characteristic of most preexisting studies of imperialism, which tended to ignore the institutions and dynamism of the periphery.

However, the basic tenets of dependency and world-system theories have also led in some cases (but not in the best research spawned by these perspectives) to simplistic assumptions, in particular to a tendency to consider internal structures and processes, especially the political and cultural ones, as transmission belts for external economic and political forces. The pendulum swung to the other extreme: from the neglect of external economic and political determinants of social change, characteristic of modernization theory, to a disregard for internal factors.

TOWARD A NEW PARADIGM

In the late 1980s the basic assumptions of dependency and world-system theories also became problematic. In the first place, research on the role of

the state in the development process led to its reconceptualization as an autonomous actor (see Evans et al. 1985; Evans 1995; and Waisman 1987 for a Latin American case). This challenged the conceptions characteristic of most approaches close to the Marxist tradition—dependency and worldsystem theories included—which tended to see the state, claims of ‘‘relative autonomy’’ notwithstanding, as basically an instrument of either domestic ruling classes or foreign forces. Second, there was a rediscovery of social movements in the region (a consequence that the redemocratization processes of the 1980s could not fail to produce). More often than in the past, agency came to be seen as relatively independent in relation to its structural and institutional context (see the essays in Eckstein [1989], for instance), a conceptualization that differs sharply from the structuralist assumption inherent in dependency and worldsystem perspectives. Finally, the proposition according to which the central determinants of the development of Latin American countries are external has also been challenged (Waisman 1987; Zeitlin 1984). In the 1990s there is a growing consensus, as there was in the 1970s, that existing paradigms do not encompass our current understanding of Latin American development.

A new theoretical synthesis should integrate the valid components of the modernization, dependency, and world-system approaches, and should also allow for the autonomy of the state and the role of agency. A point of departure should be the recognition of three facts. First, the division of the world into core, periphery, and semiperiphery is not sufficient to encompass the diversity of developmental situations and trajectories relevant for the study of the countries of Latin America. It is necessary to construct a typology of more specific kinds of peripheral societies (and of core societies as well: the core-periphery distinction is still too abstract), and to describe more systematically the structural ‘‘tracks’’ that have crystallized in the region at different stages of development of the world economy.

Second, the different developmental paths followed by Latin American societies have been determined by empirically variable constellations of external and internal processes, and of economic, political, and ideological-cognitive ones. Few propositions that privilege the causal role of specific factors are likely to be generally valid. Rather

than seeking propositions of this type, as modernization, dependency, and world-system approaches have tried to do, it would be more productive to map the specific bundles of factors that have influenced developmental outcomes in critical situations. Third, development is a discontinuous process (an instance of punctuated equilibrium, in Stephen D. Krasner’s [1984] words), but we lack a theory of the transition points, that is, of the crossroads where acceleration, stagnation, retrogression, and changes of developmental tracks have taken place. The Latin American experience indicates that these are the points in which major changes in the world system, such as depressions, wars, important technological developments, organizational changes in production or trade, and restructuring of the economic or military balance of power, have interacted with domestic processes economic, political, and cultural processes.

LATIN AMERICA IN THE PAST DECADE: THE DOUBLE TRANSFORMATION

In the past two decades, Latin America has been undergoing two simultaneous transformations: economic liberalization and democratization (Waisman 1998). The pervasive nature of these transitions is indicated by the fact that they have been independent of level of development and of political regime. Most countries in the region, from relatively underdeveloped Bolivia and Paraguay to relatively industrialized Brazil and Argentina, have moved from military rule to liberal democracy in the past decade. As for economic liberalization, it took place in authoritarian Argentina and also in democratic Argentina, in authoritarian Chile and also in democratic Chile, in state-corporatist Mexico, in social-democratic Venezuela and also in socialChristian Venezuela. Like the depressions of the 1870s or the 1930s, this is a critical juncture, a reshaping of domestic economic and political institutions, the regional manifestation of the processes of economic globalization and reconstitution of the world order following the collapse of communism.

Economic liberalization was the result of a constellation of internal and external determinants. In most cases, the former seem to be central, but in any case exogenous factors constituted a powerful set of incentives and constraints pushing countries toward the liberalization road. These

external causes can be classified into economic, political, and cultural.

The debt crisis of the 1980s was, for many Latin American countries, the central economic constraint (Felix 1990; Kahler 1986; Nelson 1990; Stallings and Kaufman 1989; Wesson 1988; Wionczek 1987). This crisis forced highly indebted countries to increase and diversify exports, which presupposed a higher rate of investment, and to reduce government spending. These objectives could have been sought with variable mixes of industrial policy (‘‘picking the winners’’) and trade liberalization, but the policies of creditors and international lending agencies produced strong incentives for privatization, deregulation, and the opening up of the economy. Saying that the debt crisis has been in the 1980s both a powerful constraint and a substantial incentive for economic liberalization does not mean, of course, that the relationship between crisis and reform was necessary or sufficient. In fact, liberalization had begun in the 1960s and 1970s, as a consequence of perceived export opportunities, of export-oriented foreign investment, or of deliberate attempts by governments to overcome stagnating tendencies in the economy. The difference is that what had been a developmental option in previous decades had now become an imperious necessity.

As for political factors, the end of the Cold War facilitated not only political liberalization, which is more or less obvious, but also large-scale economic reform, especially in democratic settings. First, the collapse of communism led to the organizational and ideological disarmament of the radical left, and this rendered armed subversion less likely. Second, and more important, in the new international conditions the fear, be it realistic or paranoid, of exogenously induced revolution either weakened or disappeared. This fear, often unrealistic, was not only a central determinant of the exclusionary policies carried out by local elites and a reason for American and European support for authoritarian regimes, but it was also a constraint on elite behavior. During the Cold War, important segments of the state and political elites in many countries espoused the view that populist and protectionist economic policies were an antidote to communism, and many believed that the drastic social consequences of

the dismantling of autarkic capitalism would be a breeding ground for revolution (Waisman 1987).

Finally, the international demonstration effects received by the segments of Latin American societies most open to outside influences (economic and political elites, middle classes, and the intelligentsia) have favored, since the early 1980s, both economic and political liberalization. The economic success of capitalist economies and the crisis in the socialist ones, as well as the eastern European revolutions, have conferred an aura of empirical validity on two propositions: first, that capitalism and liberal democracy are both efficacious, while socialism as both an economic and a political formula is not; and second, that a capitalist economy and a democratic polity presuppose each other.

These external factors interacted with endogenous determinants. The most important of these was the realization, by state and political elites, but also by economic and intellectual ones, that autarkic capitalism had run its course, and caused in many countries stagnation or retrogression in the economy and instability and illegitimacy in the polity. It was simply no longer viable as an institutional model.

Autarkic capitalism was carried to its extreme in the countries of the Southern Cone: Argentina, Chile, and Uruguay. The long-term effects of radical import-substituting industrialization could only be stagnation, or at least stagnating tendencies, because industrialization was based on the transfer of resources from the internationally competitive export sector to a manufacturing sector shielded from the world by extraordinarily high levels of protection, both tariff and nontariff (outright prohibitions to import included). Advanced autarkic industrialization led to a situation in which most of the capital and labor in the society was committed to this captive domestic market. The outcome of this massive misallocation of resources could only be, in the long run, stagnation, and even retrogression.

Instability and illegitimacy were the long-term outcome of autarkic industrialization because this pattern of growth eventually produced an explosive combination: a stagnated economy and a society made up of highly mobilized and organized social forces, labor and the intelligentsia in particular. Stagnation led to the mobilization of large

segments of the lower classes and the intelligentsia. In some countries, such as those of the Southern Cone in the 1960s and 1970s, truly revolutionary situations, in the Leninist sense of the term, appeared. Eventually, they triggered, or justified, the establishment of authoritarian regimes.

The demise of autarkic capitalism was the result, as was the case with communism, of a revolution from above. In both situations, it was the elites who dismantled the existing regimes, after having reached the conclusion that the stagnation and illegitimacy experienced by their societies were the consequence of existing institutions, and that there was no solution to the economic and political crises within these institutions. In some cases, such as Argentina and Chile, this realization took place when radical import substitution had approached its limits, and produced not only stagnation but also a revolutionary regime in Chile, and guerrillas and food riots in Argentina. In other cases, such as Brazil, the switch is taking place before these consequences appear, largely as a consequence of the demonstration effects of other Latin American countries.

THE CONTRADICTORY LOGICS OF ECONOMIC AND POLITICAL TRANSFORMATION

There are three possible sequences between economic and political liberalization (Bresser Pereira et al. 1993; Haggard and Kaufman 1995; Lijphart and Waisman 1997). To give them Latin American names, they would be the Chilean model, in which privatization, deregulation, and the opening up of the economy preceded democratization; the Venezuelan pattern, in which the liberalization of the economy takes place in the context of political institutions that have been in place for several decades; and finally the Argentine sequence, in which economic liberalization and the consolidation of democracy take place more or less at the same time. The three are fraught with dangers, but the third is the least favorable. The reason is that economic liberalization and the consolidation of democracy are governed by opposing social logics (Liphart and Waisman 1997; Waisman 1998).

Privatization, deregulation, and the opening up of the economy are governed by the logic of differentiation. Their first impact on the society is

the increase of social differentiation in both the vertical and the horizontal senses: Polarization between rich and poor as a whole intensifies, and so does polarization between ‘‘winners’’ and ‘‘losers’’ within each social class, and also between sectors of the economy and regions of the country.

On the other hand, the consolidation of democracy is governed by the logic of mobilization. The political context of a new democracy renders the mobilization of those affected by economic liberalization more likely, due to the lowering of the costs of political action in relation to what was the case in the predemocratic period. Moreover, new democracies create incentives for political entrepreneurship, for in the new political conditions political and labor activists must secure and organize social and political bases. Economic liberalization presents them with an inventory of grievances that easily translates into a political agenda. Thus, both from below and from above, institutional factors are conducive to the articulation of movements of resistance to economic liberalization.

These two logics have the potential for inhibiting each other, and consequently for blocking or derailing economic liberalization, or the consolidation of democracy, or both. And yet, economic liberalization and the consolidation of democracy are occurring simultaneously in many Latin American countries, and so far no serious blockage or derailing has occurred as a consequence of the interaction between these processes. In several countries, there is an impressive consensus, involving state and economic elites, and even labor and some of the parties in the left and center that had supported state socialism or economic nationalism in the past.

The reason that, so far, the two opposing logics discussed above have not clashed lies in the operation of three ‘‘cushions’’ or moderating factors, which inhibit political mobilization. These can be classified into structural, institutional, and cognitive-ideological.

The structural cushion consists simply in the fact that economic liberalization itself weakens and destroys the power bases of the coalitions supporting the old regime (rent-seeking entrepreneurs and unions, and in some cases managers and workers in the public sector) and in general of those hurt by trade liberalization, privatization,

and deregulation. On the one hand, these processes of economic transformation generate insecurity and economic deprivation, and thus discontent. On the other, impoverishment and marginalization also reduce social groups’ capacity for organization and mobilization in defense of their interests.

Business elites, both private and public, face the choice between recycling into competitive capitalists and dropping out from the elites. This group is usually differentiated, and its most entrepreneurial elements, and/or those endowed with large amounts of economic and social capital, usually join, or become, the elite in the open economy. Labor is also dualized: Workers in the competitive sectors of the economy, or in sectors insulated from foreign competition (e.g., those producing nontradeable goods) are likely to join the train of economic conversion, and to engage in bargain- ing-oriented unionism. Sectors weakened by deindustrialization, by the increase of unemployment, and in general by the growth of poverty, on the other hand, are more likely to develop confrontational forms of political action, but in the end their impact is likely to be modest, because of the factors discussed above. In many countries, the weakening of labor actually began before economic liberalization, for impoverishment and the growth of the labor reserve were manifestations of the crisis of the old regime itself.

In the second place, the clash between the two opposing logics discussed above has been inhibited by institutional change. The design or redesign of some of the basic economic and political institutions is in many cases a necessary component and in general an important contributing factor to successful transitions.

Finally, cognitive-ideological factors have both external and internal sources. As I argued above, economic nationalists as well as leftists have been affected by the collapse of communism (and also by the apparent success of the Thatcher-Reagan economic policies), and by a process of political learning, triggered by the experience of the economic and political consequences of the old regime. The cumulative effect of these cognitive processes has been not only the abandonment of autarkic capitalism, but also the acceptance of the liberal model, either under the form of active support, or because of ideological surrender produced by the exhaustion of alternatives.

Given this quasi-consensus, the negative consequences of the economic transformation are not conceptualized by large segments of economic, political, and intellectual elites as necessary or permanent attributes of the emerging institutional model, but to a large extent as the product of the failure of autarkic capitalism. And the new course is not perceived as a leap in the dark, but as a transition, whose undesirable side effects are in any case the inevitable and temporary cost of the only process that can ensure, in the long run, affluence and even a higher measure of equality of opportunity in the society. The most significant leftist and radical arguments, on the other hand, focus on the espousal of social democracy in opposition to the most radical forms of the market economy, often characterized as ‘‘Darwinian’’ or ‘‘savage’’ capitalism.

Both the strengthening of civil society and the enhancement of state capacity are necessary conditions not only for the consolidation of democracy but also for the success of the economic transformation.

The typical situation in the countries that are undergoing the double transformation is that the state is shrinking while its effectiveness remains questionable in many areas. At the same time, the corporatist apparatus that was characteristic of autarkic capitalism is being dismantled. Civil society has been weakened by the authoritarian experience, and by the increased social differentiation that follows economic liberalization. The consensus supporting the new course could erode unless the new model is institutionalized, something that cannot happen without a more effective state and a stronger civil society.

This is, thus, an inflection point in the relationship between state and society, a conjuncture that could be conceptualized both a danger and an opportunity. The danger resides in the fact that, in these conditions, the structural, institutional, and cognitive ‘‘cushions’’ discussed above could gradually lose their effectiveness. The social dislocation produced by economic liberalization would either increase the atomization of the society, and lead to mass anomie; or facilitate ‘‘praetorian’’ mobilization. The first outcome would entail a deterioration of the already modest quality of the new democracies, while the second would lead to disturbances. In both cases, the legitimacy of the

policies of economic transformation would fall precipitously. But this situation also represents and opportunity for social and political agency, whose goal would be the strengthening of civil society and the enhancement of state capacity.

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CARLOS H. WAISMAN

LAW AND LEGAL SYSTEMS

The term law is surprisingly difficult to define. Perhaps the best-known definition within the sociology of law community is that of Max Weber: ‘‘An order will be called law if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity or avenge violation, will be applied by a staff of people holding themselves specially ready for that purpose’’ (1954, p. 5). Similar definitions include Donald Black’s terse statement: ‘‘Law is governmental social control’’ (1976, p. 2). While these types of definitions have sometimes been attacked as employing a Westernized conception, appropriate for developed states but inappropriate for other societies, Hoebel advances a similar definition of law in all societies: ‘‘The really fundamental sine qua non of law in any society—primitive or civi- lized—is the legitimate use of physical coercion by a socially authorized agent’’ (1954, p. 26).

Definitions such as these are more interesting for what they exclude than for what they include. Weber and Hoebel each attempt to draw a line

where the boundary between law and something else is fuzziest. By including the term legitimate, Hoebel’s definition is intended to distinguish law from the brute exercise of force. The leader of a criminal gang who forces people to give him money may be doing many things, but he is not enforcing the law. He is not a socially authorized agent, and his use of force is not legitimate. Legitimacy itself is a slippery concept, and disagreements about when it is present give rise to questions such as whether the Nazis governed under the rule of law.

The inclusion of coercion and specialized agents of enforcement in both Weber’s and Hoebel’s definitions is meant to distinguish law from customs or norms, the breach of which either is not sanctioned or is sanctioned only by members of the group against which the breach occurred. The internal rules (norms and customs) governing a family’s life or an organization’s life are not law unless they are reinstitutionalized, that is, unless they are ‘‘restated in such a way that they can be applied by an institution designed (or at very least, utilized) specifically for that purpose’’ (Bohannan 1965, p. 36). Some have rejected such definitions and argued that law consists of the regularized conduct and patterns of behavior in a community or society (Ehrlich 1936: Malinowski 1926). They fear that if the study of law is restricted to legal rules enforced by specialized legal staffs, it will exclude much of what legal anthropologists and legal sociologists may find interesting. Regularized conduct definitions in turn suffer from their inability to offer a clear boundary between legal norms and other norms in the society. However, they do capture the idea that there is law-stuff everywhere. Families and organizations do generate rules and do coerce or induce compliance. These groups constitute what Moore (1973) calls ‘‘semi-autonomous fields.’’ Not only are the rules of these organizations interesting in their own right, the interaction of these rules and the state rules we call law helps to shape the fundamental choice between avoidance and compliance that is faced by all to whom rules are addressed.

The boundary maintenance functions of definitions such as those of Weber, Hoebel, and Bohannan undoubtedly have their place, but law’s empire is so large that the border skirmishes occurring out on its frontiers have limited influence on our shared understanding of the words law and

legal system. Wherever it occurs, law is a body of rules that speak to how people should behave in society (substantive law) and how the legal system itself should proceed (adjective law). The volume and complexity of rules may be expected to parallel the size and complexity of the society of which they are a part. But broad categories of substantive law—tort law, property law, criminal law—appar- ently exist in all legal orders, as do the fundamentals of adjective law—procedure and evidence. The various definitions of ‘‘law’’ exist in an uneasy tension (Tamanaha 1997). This tension can serve us well if we follow Griffiths’s advice (1984) and view ‘‘legalness’’ as a variable rather than thinking of ‘‘law’’ as a special, definable phenomenon. The complex body of substantive and adjective rules at different levels comprise a legal system.

LEGAL SYSTEMS

The comparative study of law might trace its roots to Aristotle’s comparison of Greek city-state constitutions. A more recent example is Montesquieu, who, in The Spirit of the Laws ([1748] 1962), attempted to explain legal diversity in terms of various factors in the social setting. Interspersed between these efforts were comparisons of canon law with Roman law in Europe and with the common law in England. Despite these precursors, the modern study of comparative legal systems has become a topic of sustained academic interest only during the last 100 to 150 years.

The history of comparative law is set forth in a number of works, including Zweigert and Kotz (1987) and David and Brierley (1985). The present essay discusses a small part of this history, focusing on what Zweigert and Kotz call scientific or theoretical comparative law rather than legislative comparative law, in which foreign laws are examined and invoked in the process of drafting new nationstate laws.

Early theoretical efforts, exemplified by Maine’s Ancient Law ([1861] 1963), adopted evolutionary theories of legal development. In Maine’s famous formulation, legal systems, following changes in social arrangements, move from status, wherein one’s rights and duties are determined by one’s social niche (the law of feudalism), to contract, wherein ones rights and duties are determined by

oneself and the contracts one enters into (eventually the law of capitalism).

A second well-known developmental theory of changes in legal systems is that of Durkheim ([1893] 1964). A societal movement from mechanical to organic solidarity is accompanied by a movement from repressive law (law that punishes those who violate a shared moral understanding) to restitutive law (law that attempts to facilitate cooperation and to return people to a status quo ante when rule violations occur).

From the sociological point of view, perhaps the most important contributor to the early development of comparative law was that preeminent lawyer-social scientist, Max Weber. Weber’s contribution was in three parts. First, he developed the device of an ideal type, a stylized construct that represents the perfect example of a phenomenon. The ideal type acts as a yardstick against which we might measure actual legal systems. Second, using ideal types, he provided a typology of legal systems classified by the formality and the rationality of their decision-making processes. Ideally, legal systems could be thought of as formal or substantive, rational or irrational. A legal system is formal to the extent that the norms it applies are intrinsic to the system itself. Substantive law, as the term was used earlier, should not be confused with the substantive dimension of Weber’s typology. A legal system is substantive in Weber’s sense to the extent that the source of the norms it applies is extrinsic to the legal system. For example, a legal system would be substantive if a court resolved disputes by reference to a religious rather than a legal code.

A legal system is rational if it yields results that are predictable from the facts of cases; that is, if case outcomes are determined by the reasoned analysis of action in light of a given set of norms. A legal system is irrational when outcomes are not predictable in this way. Basically, a legal system is rational to the extent that similar cases are decided similarly.

A formally irrational system exists when the legal order produces results unconstrained by reason. Classic examples are judgments following consultation with an oracle or trial by ordeal. Substantive irrationality exists when lawmakers and finders do not resort to some dominant general norms but, instead, act arbitrarily or decide

upon the basis of an emotional evaluation of a particular case. Weber apparently had in mind the justice dispensed by the Khadi, a Moslem judge who, at least as Weber saw him, sat in the marketplace and rendered judgment by making a free and idiosyncratic evaluation of the particular merits of each case.

A substantively rational legal system exists when lawmakers and finders follow a consistent set of principles derived from some source other than the legal system itself. Again, Weber thought that Moslem law tended toward this type insofar as it tried to implement the thoughts and commands of the Prophet.

Western legal systems, especially those of civil law countries such as France and Germany, most nearly approximate the formally rational ideal, a legal system where the generality of legal rules is high and where the legal rules are highly differentiated from other social norms.

The relationship between formal and substantive law is obviously more complex than can be reflected in these four Weberian types. For example, legal systems may be procedurally quite formal while incorporating substantive norms rooted in nonlegal institutions. Moreover, rational systems may incorporate potentially irrational components, as when the final judgment in a case is left to a lay jury. Nevertheless, as ideal types Weber’s categories help to locate idealized Western law in a wider universe of possible legal systems.

The importance of Weber’s categories, like those of Maine, resides in large part in his efforts to link types of rationality with different types of societies and different ways of organizing legal systems. Weber associated an irrational legal order with domination by a charismatic leader. Formal rationality, on the other hand, accompanies the rise of the bureaucratic style of organization. Weber regarded logically formal rationality as the most ‘‘advanced’’ kind of legal ordering and as particularly hospitable to the growth of the capitalist state.

Weber’s third contribution to comparative legal studies was his insight that the nature of a society’s legal system is shaped by the kinds of individuals who dominate it. On the European continent, in the absence of a powerful central