막스 베버의 R. 슈탐러 비판과 법사회학 기초

This article examines the departing point of Max Weber’s sociology of law by closely examining his critique of ‘Wirtschaft und Recht,’ written by the neo-Kantian legal philosopher Rudolf Stammler. Stammler’s argument to propose law as the ultimate a priori premise of social life conflicts with Weber’s perspective that focuses on the empirical reality of legal action. By adopting various logics, Stammler attempted to redefine the relationship between economy and law in social life, through which he experimented to overcome the deficiencies of the Materialist Concept of History and ultimately established a new social science. However, Weber argues that Stammler’s endeavors were not successful because of his confusion between “axiom” and “category,” the conglomeration of “being” and “ought,” and an incomplete logic seen from his separation between “form” and “matter.” Weber strongly criticizes how Stammler’s argument fell into the fallacy of “legal scholasticism.” Based on these cognitive views, Stammler suggested an independent and formal norm which judges and orders the action and social life of individuals as an intrinsic characteristic of social life. In this regard, Weber discussed “maxim”, an empirical legal concept, in relation with the actor's meaning of action. Furthermore, he categorized “idea,” “the dogmatic of meaning,” and “the complex of empirical motives” as the three methods of analyzing the meaning of action. The core of Weber’s criticism on Stammler’s theory is that one needs to reinterpret legal rule –which Stammler premised as an ought—into a more concrete meaning of action from the perspective of the actors, while explaining empirically the basis of causal analysis in order to acquire the authority of social life and study the legal rule in reality.