Another way in which law allows domination to occur is by the way law is made. In Australia people participate in a political system that places law-making power in the hands of a government.
However, these same people that create laws also create various bureaucratic bodies with which executive power is exercised. Thus, the makers of law are inextricably linked with bureaucratic process. Not only does law provide a framework for which bureaucracies can work within, the law also serves as a tool by which bureaucracies can exercise their will.Take for example the excising of Melville Island for the purposes of excluding refugees the rights normally afforded to those that land on Australian territory. This exercise of legal power, actively reducing the area of Australia’s legal territory, was for the benefit of executive and bureaucratic process, to exclude these people from the rights they would otherwise have. At this stage it should also be noted that law has also been identified with rationalization. Many of its characteristics are akin to highly rationalized forces: unemotional, impersonal, technical.
Cases brought before courts are determined by judges applying pre-laid principles and calling upon trained higher level rational thinking. Each case is determined by the facts as presented and examined by the court, a kind of empirical process. An emphasis on facts propagates the search for the truth, one of the characteristics of cognitive instrumental rationality.
Once again this rationalization leads to disenchantment. Although most people do no know of the specifics of every law, the law is in the public domain to be read and studied.There is no mystery, no magic surrounding it. The rules are also applied universally to every person – they are not completely discretionary.
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That said, the law does provide some alleviation from the Iron Cage and Disenchantment. The accessibility of the law and its principles, and its universal applicability brings predictability to the law which can be used by individuals to move within15. So while it sets the outer boundaries, within these boundaries people are free to move. A good example of this can be found within contract law and its role in the private sector.People regularly contract with each other for a variety of things, without too much regard to relevant contractual laws. If there are mistakes, often both parties will negotiate to rectify the situation. Only where the damage is substantial does the law step in.
Else, these people operate in a relatively sheltered environment, free from the ‘harsh’ restrictions of an Iron Cage. Another argument that can be advanced is that the law is created by humans, thus retaining some kind of human element.Laws regarding fraud are enacted to prevent people from ‘cheating’ others, and bringing them to ‘justice’. While the notion of ‘justice’ will not be explored here, these laws serve to fulfil expectations that the law is not completely rationalized in a cognitive instrumentalist sense, but also incorporates some moral and ethical elements as well. This creates faith in the legal system, and reduces the chance that law is always seeking to help create a “cold and uninspiring world”.The common factor in both of these situations is the role that humans play in shaping their own world. The importance of the individual actor was recognized by Weber, and I would agree with this proposition.
Humans will always be influenced by values or beliefs, morals, and other seemingly irrational bases. Although rationalization appears to be spiralling out of control, there will be some point where it will continue on no further, simply because of its human element.Societal rationalization and personal rationalization cannot exist in there extremes together, since you cannot have something completely in control of society and allow people to be in complete control of themselves.
As for my original plight, well, perhaps I am stuck in, disenchanted and confined to an iron cage. But, as with the role that law plays, there seems to be more than one dimension to everything. And at least that knowledge, although obtained in a logical and rational sense, gives me hope. Irrational isn’t it? I guess I’m only human.ReferencesBennett, Jane, ‘The Enchantment of Modern Life: Attachments, Crossings, and Ethics’ (2001) Princeton University Press, Princeton, pp. 56-109. Boucock, Cary, ‘In the Grip of Freedom: Law and Modernity in Max Weber’ (2000) University of Toronto, Toronto, pp. 19-189.
Brubaker, R. ‘The Limits of Rationality: An Essay on the Social and Moral Thought of Max Weber’ (1984) Allen and Unwin, London, pp. 8-35, 44-45.
