Law finding, duality and irrationality: rethinking trial by ordeal in Weber’s Economy and Society

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Abstract

In On Law and Economy in Society, Weber presents trial by ordeal as being the archetype of formal irrationality. Drawing on illustrations of ordeal from the ancient Near East to the present day, this article critiques Weber and argues that a more nuanced understanding of the operation of ordeal reveals flaws and inconsistencies in Weber’s understanding of the ordeal, and consequently his classification of the phenomenon as being formally irrational. Ordeal is also a phenomenon of duality; the first aspect of human and magico-religious judges works with power dramas and sleight of hand to conceal the bias of a law-finding judge in a multiplex society. The second duality of nature bridges what participants in the ordeal believe is happening and its operation in practice. This means that ordeal cannot readily be categorised as being formally irrational as Weber claims and instead bridges both formal irrationality and substantive irrationality.
Original languageEnglish
Number of pages20
JournalLaw and Humanities
Volume11
Issue number1
Early online date9 Feb 2017
DOIs
Publication statusE-pub ahead of print - 9 Feb 2017

Keywords

  • Weber
  • ordeal
  • oracle
  • rationality
  • irrationality
  • awfinding
  • arbitrariness

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