The Nature, Conditions, and Development of Bureaucratic Herrschaft

Predictability

The predictability of rules is, for a modern bureaucracy, actually of primary importance. It is a characteristic of modern culture itself, and especially its technical economic base,²² that demands “predictability” for the successful completion of tasks.
A fully developed bureaucracy embodies very specifically the principle of sine ira ac studio²³ (i.e., without anger or frustration). This specific character of bureaucracy means the complete eradication of love, hate, and all purely personal sentiments from administrative tasks. Put bluntly, this means the eradication of all sentiments that are irrational and incalculable. Capitalism welcomes this specific character and it is praised as bureaucracy’s virtue. This implies that the more bureaucracy implements this principle of “dehumanizing” its tasks, the more perfect it becomes.
Instead of personal sympathy, favor, mercy, or gratitude by gentlemen of the old system, the modern society demands a strictly objective, humanly detached, and dispassionate “specialist” for the [administrative] apparatus. The more complex and specialized modern culture becomes, the more it demands human detachment.
The bureaucratic form of administration provides all these in the most beneficial combination.
Bureaucracy and Law
The bureaucracy, in particular, regularly prepares the basis for a jurisdiction based on systematically defined and rational rights grounded in law. This type of technical perfection of jurisdiction was first produced during the late Roman Empire. The reception of such law in the Middle Ages went hand in hand with the bureaucratization of “jurisdiction.” This implied the replacement of traditional and irrational jurisdictional rules, with jurisdiction-based findings of justice by rationally trained legal specialists.
Rational legal practice based on strictly formalized legal terms contrasts with forms of legal practices that are predominately tied to sacred traditions. Based on these traditions, if a concrete jurisdiction cannot be indisputably identified to resolve the legal question, the jurisdiction will either be based on concrete “revelations” (e.g., oracles, prophecies, or trials by ordeal—“charismatic justice”) or on two other kinds of justice that are not based on subordination under rational legal terms. These are the ones of interest for us here.
1. Kadi Justice—term accurately coined by R. Schmidt, where the jurisdiction is informal and based on concrete ethical or practical value judgments.
2. Empirical Justice—judgment is passed formally but referring to analogies and by interpreting the concrete “precedents” of similar cases.
Rational reasons for judgment cannot be found in Kadi justice whatsoever and also not in Empirical justice in its purest form. It is possible that the specific characteristics of Kadi justice as “value judgments” are enhanced up to the point where prophetic rulings break away from all traditions. Empirical Justice, on the other hand, may be subliminated and rationalized into an “applied science.”²⁴
As explained elsewhere, non-bureaucratic forms of governance [Herrschaft] show a peculiar combination of strict traditionalism on the one hand, and arbitrariness and random grace on part of the Ruler on the other. Therefore, mixed and transitional forms between rational bureaucratic law, Kadi Justice and Empirical Justice are common. For instance, in England, the vast lower levels of the judicial system are still characterized as Kadi Justice to such a high degree that is unimaginable on the continent. Mendelssohn illustrated this very clearly.²⁵ Even our [German] jury system of justice, which excludes giving reasons for the verdict, quite often in practice, works the same way as we all know. We need to guard against the belief that “democratic” principles of justice are identical with “rational” (in a formal sense) findings of justice.²⁶
On the contrary, the opposite is true, as will be discussed later.
At the same time, the English (and American) justice systems, with their large centralized courts, are still based to a high degree on Empirical Justice, especially with regard to the use of “precedent” in rulings. The reason why in England all rational codification efforts and the introduction of the Roman legal system failed is that the large and uniformly organized Bar Associations resisted. They represent a strata [Stand] of Honoratioren who held a legal monopoly and from which the judges of the higher courts of justice were recruited. These Bar Associations retained control over the legal training, which was technically highly developed in the style of an empirical “applied science” [Kunstlehre]. They successfully resisted the efforts to introduce rational justice that threatened their social and material positions [i.e., their Stand-based monopoly]. The attempts to challenge the Bar Associations’ control of legal training came in the church’s ecclesiastical courts, in particular, and for a time were also carried out in universities.
The common-law advocates’ fight against Roman and church law, and the war against the powerful position of the church in general were waged primarily for economic reasons. This struggle was caused by the common-law advocates’ interest in sinecures [Sporteln], which was clearly evident from the way the king intervened. However, it was due to political centralization that common-law advocates were successful in the fight to retain power.
In Germany, a socially powerful Stand of Honoratioren in the style of the English lawyers was absent mainly for political reasons. Such a Stand in Germany could have been the bearer of a national jurisdiction²⁷ and could have developed a national training system to the rank of an “art” with regular teachings, like the English lawyer guild did. Finally, such a Stand would have prevented the intrusion of the technically superior schooling of Roman-law jurists. Thus, it was not the better alignment of Roman law dealing with material possessions needed by the emerging capitalism that was decisive for the victory of Roman law in this case—indeed, almost all specific legal institutions of modern capitalism were unknown to the Roman law, and actually only originated in the medieval times. Rather, it was the rational form and especially technical necessity that demanded that legal proceedings and rational procedures for taking evidence are carried out by trained experts (i.e., experts who were trained in Roman law by universities).²⁸ The need for rational procedures for taking evidence arose from increasingly more complex practical law cases. Further, the increasingly rationalized economy demanded rational proceedings in taking evidence instead of the simplistic finding of truth found with tangible revelation or sacred sworn oaths.²⁹ Of course, this situation was largely caused by the changes in the structure of the economy. However, this aspect was effective everywhere, even in England, where the King introduced rational procedures for taking evidence, which especially favored the merchants.
As we can see from this, The main reason that differences between England and Germany developed concerning the jurisdiction of material possessions the way they did reflected the different ways that governmental structures emerged. In England, centralized justice existed next to a domination by Honoratioren, while in Germany lack of political centralization coincided with bureaucratization. Therefore, England maintained a less rational and less bureaucratic justice system, even though it was the first country to fully develop capitalism.
The reason why capitalism nevertheless came to terms with such an under-rationalized jurisdiction in England was the particular mode in which the judiciary and the legal proceedings worked. Basically, until modern times, the economically disadvantaged were denied access to the judicial system. This fact, and also the time-consuming and expensive nature of property transfers, which again was caused by the lawyers’ economic interests, influenced England’s agrarian condition in favor of the accumulation and immobilization of land holdings.
During the Roman Republic, the legal practice itself was a peculiar mixture that included elements of rational, empirical, and even Kadi Justice. The appointment of jurors as such, and doubtlessly, at least in the beginning, the Praetor’s case-by-case rulings³⁰ with each containing an element of Kadi justice. In contrast, the “jurisprudence of provision” [Kautelarjurisprudenz] and everything that developed out of it, including partly the “practice of reports” [Responsenpraxis] in the classic legal sense, show traits of “Empirical Justice”³¹ [which is rooted in case law]. In Rome, the crucial change in judicial reasoning toward rational jurisdiction was introducing a technical style of trial instructions based on the legal terms found in the Praetor’s edicts. (Today, under the substantiation principle [of evidence], the presentation of fact is the crucial component, and the pressure to clearly and formally define a scope of legal terms [as done in Rome] is missing. Thus, it doesn’t matter which legal aspect the unit is based on; the pressures that the technically highly advanced civilization had on the Roman legal system are no longer there.)
Hence, in essence, technical aspects of legal proceedings played a role resulting only indirectly from the state’s structural organization. The rationalization of the Roman state as a unified system of scientific terms was not completed until the era of the bureaucratization of the state. It is this rationalization that differentiates the Roman system so strongly from the legal systems developed in the Orient and during the times of Ancient Greece.
A typical example of strictly traditional, evidence-based justice is the Rabbinical pronouncements in the Talmud. This is not true in a [modern] rational sense, but is nevertheless “rationalistic.” On the other hand, the typical pure Kadi Justice that has been released from the restrictions of traditions is found in every prophetic proclamation following this format: “It is written,—but I say unto you.”³² The more strongly the religious character of the Qâḍî’s³³ [Kadi] position (or of similar types of judges) is emphasized, the more unrestricted the evaluation of individual cases becomes in spheres that are not bound by sacred traditions. For example, the religious court in Tunis (Chara) decided on the issue of land holdings “as it saw fit,” as a European would say, and for a generation after the French occupation [in 1881] this remained a tangible obstacle for the development of capitalism. Later on, we will examine the sociological basis for the older types of justice that are found within such a structure of domination [Herrschaft].
But it is absolutely true that “objectivity” and “professionalism” are not necessarily identical with the domination [Herrschaft] of an invariably abstract norm—not even in the modern justice system.
The idea that there can be a law without loopholes is generally strongly contested. Also, the idea that the modern magistrate is nothing more than a “judging machine” is rejected with disgust. In such a judging machine, files and costs would be thrown into the top of the machine in order that it would spit out the verdict along with a mechanical reasoning at the bottom—and the reasoning is gleaned from mechanistically interpreted paragraphs. The reason why this notion is strongly contested is maybe found in the realization that the consequence of the bureaucratization of the law means that such an apparatus is in fact approached.
In fact, though, also within the domain of the findings of justice, there are areas where the bureaucratic judge is instructed by the legislator to use “individual” paths to find justice. Moreover, in the area of the actual administrative functions, including all government activities that do not belong to the area of creating or implementing law, or the finding of justice, the freedom and domination [Herrschaft] of individual approaches to tasks are simply taken for granted. In contrast to such emphases on individualized approaches stand the invariable norms that play a negative role because they restrict the never-to-be-regulated “creative” work of the Beamte, which is normally seen as a positive thing.
At this point though, the scope of this hypothesis shall be left undecided.
The crucial point here is,that? a “freely” operating administration (and possibly the jurisdiction) is not a sphere of unrestricted arbitrariness and mercy, nor is it for personally motivated favors, as we found within pre-bureaucratic systems. But instead, the rule [Herrschaft] of rational assessment of purposes, and the commitment to this rational approach, persists as normative behavior.
Especially within public administration, it is the Beamte’s “creative” decision making that serves as the highest and ultimate “guiding star” for his work and conduct, and which pertains to a specifically modern and strictly “objective” notion of the “national interest.” Of course, inextricably fused to the canonization of this abstract and “dispassionately objective” ideal are especially bureaucracy’s reliable instincts to sustain conditions for retaining its own power within the state (and by this, also to retain power toward other states). In the end, these personal interests in power are crucial to fulfilling the “creative” ideal [of the Beamte] with concretely usable content; and when in doubt, such personal interests might become the deciding factor. I will not go into further detail at this point. But it is essential to recognize that at least in principal, behind every action of a true bureaucratic administration exists a system of rationally identified “reasons,” which are either the application of norms or reasoning based on balancing purposes and means.
As a result, in such cases, the position of every “democratic” movement that aims at the minimization of Herrschaft “domination” has a certain ambivalence [toward democracy itself] because the notion of “equality before the law” and the desire for legal guarantees against arbitrariness demand a formally rational and “dispassionate objectivity,” in contrast to the past patrimonialism. After all, such patrimonialism valued the free personal discretion in dispensing mercy. However, if an abstract “ethos” dominates the masses in a specific question and postulates material equity, it clashes with [efficient] bureaucratic administration—because it is oriented toward a concrete person on a concrete question. (And we disregard other instincts here completely.) Such an ethos ultimately clashes with the bureaucratic administration’s formality and its chilly rule-oriented objectivity. Therefore, the ethos must emotionally discard what has been rationally demanded of it.³⁴
In particular, a formalized “equality before the law” and a “calculable” finding of justice and administration, as it is demanded by “bourgeois” [bürgerlich] interests, does not serve the unpropertied masses. Naturally, in the view of the unpropertied masses, law and administration should serve the equalization of their economic and social life chances in comparison with the property-owning class. However, law and administration can only undertake this function if they assume a mainly informal character in an “ethical” (Kadi) sense. Not only every kind of “lynch law” [justice of the common people], which is not bothered with rational “reasons” and “norms,” thwarts the rational operational sequence of justice and administration to the same degree—and in specific situations even more so—than even the “Kabinettsjustiz”³⁵ by an absolute Ruler, but the same also holds true for any kind of intense influence on the administration by the so-called public opinion. For example, in a mass democracy, a Gemeinschaft action [Gemeinschaftshandeln] can be staged and strongly manipulated by party bosses and the media.³⁶