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Max Weber on the Labour Contract: Between Realism and Formal Legal Thought

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Abstract:

Although Max Weber's review essay of the first part of Philipp Lotmar's The Labour Contract may appear peripheral to his overall contribution to legal sociology, it contains important insights on the relationship of law to economics, the utility of sociological empirical research for jurisprudence, the epistemological gap between ‘legal dogmatics’ and the sociology of law, and the fundamental distinction between state and non-state law in properly understanding the developmental logic of labour law.

In the review, far from appearing as a rigid partisan of positivistic legal formalism, Weber admits of a kind of ‘legal pluralism’ as a necessary path to the sociology of law, and allows some measure of realism, when celebrating Lotmar's analysis of the social facts of law as a precondition for proper juristic treatment of the labour contract. Nevertheless, Weber remained distrustful of legal realism which, for him, was founded on an epistemological confusion between ‘is’ and ‘ought’.

Document Type: Research Article

DOI: http://dx.doi.org/10.1111/j.1467-6478.2009.00483.x

Affiliations: École de relations industrielles (School of Industrial Relations), Université de Montréal, Montréal, Québec H3C 3J7, Canada., Email: michel.coutu@umontreal.ca

Publication date: December 1, 2009

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