Weber’s Misunderstanding of Traditional Chinese Law

Using his ideal‐types of the rationalization of legal systems, Max Weber classified modern Western European law as formally rational, traditional Chinese law as substantively irrational. In light of recent research by specialists in pre‐20th‐century Chinese law, Weber is shown to have had several serious misunderstandings. Chinese officials’ arbitrary discretion in judicial decision making was much more limited than Weber thought, and what limited it was not primarily “sacred tradition,” but officials’ obligation to adjudicate according to the written law. There was more legal expertise in the system than Weber realized. By the time of the Ch’ing dynasty (1644–1912), China’s legal system approximated Weber’s substantively rational type more than the substantively irrational type. Finally, Weber’s model for formally rational law—the “conceptual jurisprudence” of late‐19th‐century German civil law—is no longer regarded as the model for modern law. Therefore, students of comparative law who wish to build from Weber’s ideal‐types need to rethink what the defining characteristics of “modern law” should be.