Weber’s writings show rationalization taking multiple forms and proceeding unevenly across societal realms from economy, to polity, to religion, to culture and law (Weber, 1946, 1947, 1978 [1922]). Each institutional sector and form of rationalization—means-ends or practical, value-based or substantive, formal and theoretical—are subject to endogenous tensions, while reciprocally influencing each other (Kalberg, 1980, 1990; see also e.g. Schluchter, 1985; Ewing, 1987; Sutton, 2001: 99-132; Billows, 2017; Kennedy, 2004; Duran 2014). This article returns to Weber’s discussion of rationalization of law and science, and his distinction between formal and substantive rationalization of law, developing the concept of technocratization of law and elucidating the relationship between processes of technocratization and substantivation, to help answer the question of when and how regulatory law can mitigate economic and social inequalities in democratic capitalism.
There is no uniformly agreed definition of regulatory law. Some definitions confine regulatory law to that which polices market entry or exit, price, profit structures or competition and/or that enforced by administrative agencies; other definitions are so broad that almost all law becomes regulatory (Mitnick, 1980: 3-19). Until the late 20th century when American approaches to conceptualizing regulation began resonating in Europe, European relative to American concepts of regulation were broader (Majone, 1994). Some prominent European scholars conceived modes of regulation as broad political-economic and cultural governance forms revolving around capital accumulation and including state macro-economic, labor market and social policies, systems of workplace interest intermediation, economic rulemaking by banks and other non-governmental organizations and cultural schema followed and taught in families and schools (Stryker, 2000)…