Formal/substantive and value/instrumental distinctions cross-cutting

The theme of the preceding pages was that legal formality, which is frequently a species of instrumental rationality, tends in its specific social and historical contexts to be coloured and shaped by the values and convictions that lie behind instrumental rationality. In the present chapter the interface between formally and materially rational law will be explored. To anticipate the conclusion: both can serve values and convictions instrumentally, with the value system working out rules for suspending the rules.

From now on ‘substantive’ and ‘material’ will be used as synonyms. Some conceptual clarification is required here. ‘Substantive’ or ‘material’ rationality is often more or less equated with value rationality, just as ‘formal rationality’ is with instrumental rationality. Words are free but this equation is an obstacle to analysis. It leaves us without the language to cover a common kind of case, viz., the suspension of formal legal rules for instrumental reasons of convenience (policemen allowing each other to drink and drive), utility (dropping a minor prosecution in return for information leading to a major one), or personal advantage (a favour to a possible patron). More on this below. The ‘formal v. substantive’ and the ‘instrumental v. value’ distinctions are most usefully regarded as cross-cutting:

The use of the terms ‘substantively legal’ and ‘formally legal’ proposed here would incidentally seem to be truer to Weber's usage, which is inexplicit but not opaque.