The food for thought question this week asked us to discuss whether modern Canadian law falls under Weber’s category of being “formally rational”. I will go piece by piece through Weber’s definition to establish the answer to this question.
According to our handout (Which I refer to because it is easier to pick apart than going through the Pavlich text), Weber defines formally rational law as having rules that are clearly stated and followed. I would argue that modern Canadian law definitely fulfills this requirement. We have law written in statutes such as the Charter of Rights and Freedoms and the Criminal Code of Canada. These are clearly stated (in most cases), and are able to be followed relatively easily.
Another requirement is that rules are applied to all similarly situated cases in an identical manner. I cannot say that this happens 100 percent of the time, as other factors sometimes are entered into a judge’s decision. It is well known that sentencing decisions can often be modified by aggravating or mitigating circumstances of an individual such as economic situation, past crimes committed, etc (Section 718 of the Criminal Code of Canada lays out sentencing rules). Judges are also human, and though they are bound by precedent, there can be disparity in sentencing for similar crimes.
This gives way to another requirement, that there must be “high predictability in decision-making”. There is some predictability because of precedent, but as I just mentioned, there can be sentencing disparity for a variety of reasons. Two people that commit the same crime can be reasonably sure that they will receive similar sentences, but they cannot be absolutely certain of this.
The final base requirement laid out for us on the handout was that there must be no external criteria applied. Pavlich defines external criteria as things like religious, political or ethical values that laws refers to (Pavlich, 2011, p. 109). This is does not completely fit with modern Canadian law, but we are moving in that direction… somewhat. Religion has become more detached from lawmaking and politics, but it still exists. Political and ethical values, on the other hand, are the reasons why members of parliament bring bills to the table. Our legal system exists based on political and ethical reasoning. Politicians introduce bills that will get them re-elected. Politicians also introduce bills that speak to issues they find personally important. The example of this type of law is the due process model. To try and explore this further, I looked for other people’s perspectives on the typology and found an example that someone had laid out:
“If, in truth, a person has killed another person, substantive justice requires that the killer be punished according to law. However, if the killer is illegally tortured by the police to confess to his crime and, as a result of the confession, the police find conclusive evidence (i.e., evidence proving guilt beyond reasonable doubt), such as the weapon, the body of the victim, etc., for the court to convict the killer (which results in substantive justice), there is no procedural justice because the process of finding guilt has violated the basic rights of the killer who, before the conviction, is a citizen entitled to the full protection of the Bill of Rights.” (http://www.oycf.org/Perspectives2/5_043000/what_is_rule_of_law.htm)
This is an American example but correlates to the due process and crime control models. If we have a formally rational system of law, the murderer will receive his due process rights and the system will be, as put by the author above, “more concerned with process and procedure than with the end result.” This is a common critique of the due process model, as it can sometimes allow criminals to get off on technicalities or violations of rules by police officers. If our justice system allowed for coerced confessions from suspects and evidence tampering, it falls more towards a substantively rational system of law which follows the crime control model. With crime control, the ends justify the means, as long as society is safe.
Another point that takes our system away from being formally rational is jury trials, again noted on our handout as being outside this typology. A system that uses jury trials is noted as substantively irrational, as there are external criteria applied and low predictability in decision making. Juries are not bound by precedent, only by the judge’s instructions and their own personal belief systems.
So to answer the question, “Is modern Canadian law formally rational?” the answer is… sort of. We certainly have many elements of a formally rational system, but elements of other parts of Weber’s typology leak into it (Elements of a crime control model as substantively rational, jury trials are substantively irrational). I think we are moving in the direction of being formally rational, and Weber might agree with me as Pavlich (2011) says modern law is “increasingly tending towards being formally rational in either empirical or logical ways” (p. 115). It is, in my opinion, the most ideal of Weber’s types of law but we have not quite reached it yet. Society and politics still cling too tightly to the idea of incarceration as well as swift and harsh punishments as effective measures for crime. Due process is still seen by too many as an obstacle to get through rather than as a shield against discrimination, bias, and unfair treatment within the legal system.
Pavlich, G. (2011). Law & Society Redefined. Canada: Oxford University Press.