Thematic Pillar III
Genesis, Entwinement and Clash of Legal Cultures (Year 4)
Contrary to the strong presence of ‘cultural science’ within 19th century legal analysis, a new cultural scientific and cultural sociological access to the law is necessary, which not only conceives of law as a system of norms, but also as a symbolically and ritualistically transmitted normative order of the legal community (Rechtsgemeinschaft), which is strongly determined by religiously informed world-views and their practices. This fact will hereinafter be referred to as legal cultures. Against the backdrop of the knowledge on the context and background of this comparative cultural sociology of law acquired while working on the edition of Max Weber’s so-called sociology of law (MWG I/22-3) in Bonn, not only Weber’s historical-comparative argumentation is to be elucidated. Rather, the typifying profiles found in the images of different legal cultures he 
Werner Gephart: Max Weber in Indien (2004)created are to be extended to present-day interpretations. However, the goal should be to adopt a transcivilizational perspective, as opposed to Weber’s view, which tends to isolate cultures. Here, it is indispensable to cooperate with Islam studies, Indology, Japanology and Sinology, particularly with a view to the dramatic lacunae within the leading text books on comparative law for these legal cultures. Faced with the challenges to the Eurocentric view formulated by ‘postcolonial studies’, seeking exchange with scholars who understand how to reverse Weber’s view of the ‘other’ is paramount. Such scholars would investigate and discuss Weber’s respective legal cultural bias when analyzing Chinese, Islamic, and other legal cultures from the respective interior view.
Weber set himself the task of isolating the peculiarities of the development of law in the occident by comparing legal cultures. In doing so, he both investigated the inner motivation for the rationalization of law, especially of the places in which law is imparted, and specified the exogenous developmental conditions in the political, economic, and religious sphere. This task, however, was not targeted at the conflict, the areas of contact, fault lines and hybrid mixtures of idealized and fairly isolated legal cultures. To this extent Weber’s analysis needs to be supplemented: instead of relying on a comparative approach focusing on the idiosyncrasies of the occident, the interdependencies and entwinements between legal orders need to be addressed.
Yet does this mean that we forego Weber’s insights when dealing with the clash of cultures, including their normative orders, particularly as ordinary comparative law tends to disregard the legal cultures of Asia, India, Africa, and especially of Islam?
Even though Weber disputes having delivered a “comprehensive cultural analysis – however concise” in his introductory comments to the ‘collected essays on sociology of religion’ (‘Gesammelte Aufsätze zur Religionssoziologie’), the number of comments on law in the comparative studies on sociology of religion are considerable. For instance, in the study on China the decisive question is related to the idiosyncrasy of law: “Why did the administration and law remain so irrational” – despite its bureaucratic underpinning, which might have been conducive to a rationalization. Weber’s response goes beyond the logic of pure legal rationalization processes. For it is the religious ethics of Confucianism coupled with the idiosyncrasies of the structure of Chinese society which prevented the formation of a professional legal profession as bearers of rationalization, on the one hand; and kept practical social ethics rooted in a pattern of organic relationships of deference. The latter were not amenable to the development of impersonal ethics of business and law according to Weber, just as much as any “obligation towards ‘factual’ communities” is unthinkable. How then, should a rule of impersonal, abstract law – as is required in the international exchange of economic actors and the relationship of states – emerge from such a tradition? Further, how can different legal cultures and legal languages be translated into one another at all, so as to not only make the comparative lawyer’s work easier, but to attain a mutual understanding or even a communicative agreement?