Law that does not fit society: Sentencing guidelines as a neoclassical reaction to the dilemmas of substantivized law 1

Weber’s writings on substantive rationalization deal with a sociolegal process characteristic of advanced stages of the modernization process. Substantive rationalization means the intrusion of economic, sociological, and ethical criteria upon formal-rational reasoning and decision making. One important clarification of Weber’s “formal rationality” is warranted at the outset. Ewing demonstrates that Weber’s theory distinguishes between logically formal rationality in legal thought and sociologically formal rationality of formal justice. Criminal law, in its quantity and quality and in its relation to the political sector, varies with the societal context. It is essential to the author's argument that the process of substantive rationalization came about because of changing societal constraints that pushed the actions and decisions of legislators and judges toward the substantive rationalization of law. In sum, particularistic interest groups encourage substantive rationalization in the United States as well as in European societies.