YOA to YCJA – Applying Weber’s Typology of Law

Coming to force on April 2nd, 1984, the Young Offenders Act (YOA) was enacted to counteract the many failures in the criminal justice system under the Juvenile Delinquents Act (JDA) and the handling of young offenders, more specifically, to address the issue of offenders’ rights. Bill C-61 (what would become the YOA) experienced extensive study and debate in parliament, including the input of more than 40 separate interest groups in the molding of the Bill. With the institution of the Canadian Charter of Rights and Freedoms in 1982, many provisions of the 1908, outdated JDA were found to be ignoring the now clearly outlined legal rights guaranteed by the Charter. One of the most important changes that the Act brought about was the setting of a minimum prosecution age of twelve and a Canada-wide maximum age of seventeen.

As revolutionary as the new YOA was in comparison to the JDA, many issues were quickly raised in the following years after it’s institution. Some of the more important changes that parliament looked to apply included a more selective use of the formal justice system, a reduction on incarceration of youth and increasing the focus on reintegration of youth following custody. Simply put, the government wanted to keep young people out of the courts and correctional systems for adults. This was not only because courts and corrections were already bogged down as it is, but because the sentences and reintegration techniques used for adults had been proven to just not work for the gaping level of maturity between youth and adults.

If we look at this change from the YOA to the YCJA from a Weberian perspective, Canada’s legal system resembles that of a Formal System of Law, exhibiting both an empirical and logically rational type of formally rational law through its Common Law and Civil Law (Quebec) systems. That is, Canada’s legal system is “self-sufficient and uses internally specified rules and procedures to make decisions.” However, this change was brought into place by external factors to the laws in place, such as overuse of the court systems and overflowing correctional facilities which in turn forces the hand of the government to make a decision more in relation to that of a Substantive System of Law. The decision to take into account the Criminal Justice System’s overcrowding and overuse, as well as the maturity of the youth susceptible under the YOA is external to what is found in Canada’s Laws and plays on our ethical frameworks rather than a strictly legal-based decision. The decision was based not on an interpretation of the law in and of itself, but rather of the morality and ethics of how we punish youth deviance and what level of mental capability they are, and we are expecting them, to be operating at.

Weber also talks about the administration of power, which he defines as, “the probability that one actor within a social relationship will be in a position to carry out his or her will despite resistance, regardless of the basis on which this probability rests.” In the relationship at hand, Weber could argue that our youth are on the lower (if not the lowest) level of the social power spectrum due to their maturity and lack of legitimate social value as young, learning, immature individuals. We as adults are then responsible for effective administration of our power towards youth. By putting young persons in the same categories of criminal activity and punishment, and to be adjudicated by the same appointed individuals as more rational and deviant criminals, then can be argued as illegitimate when it comes to the power and rationality juvenile delinquents. Rather, reintegration of delinquent youth is more plausible than that of adults and can be done in a fashion that plays on the lower levels of maturity and intelligence than that of adults. Smaller forms of shaming and punishment that forces the youth to “pay back the community” in a way meaningful to his/her victims that does not stick the juvenile with a criminal record is beneficial to everyone within society and is only possible due to the power differential. Such methods would not work on more matured adults and should therefore only be applicable to those, as the YCJA states, as under seventeen years of age.

Weber would argue that this change was brought into account by the lack of power juveniles have in society compared to adults and a large differential between adult and youth maturity of action. Change then, in accordance with Weber’s theory, was administered in a substantively rational way, despite being brought about by a more formal system of law, and uses the fluctuation of adult versus youth power to make effective punishments while not criminally labeling youth the same way adults are susceptible in Canadian society.

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One response to “YOA to YCJA – Applying Weber’s Typology of Law

  1. Your opening description of the transformation of Canadian youth justice legislation is effective.

    Your discussion of the interplay of formally rational and substantively rational legal forms in the formation of the YCJA is great. This is a good example of what I am referring to when I say that “conflict and upheaval can see previously-external principles coming to occupy a dominant role within the new regime”.

    I am not sure that applying Weber’s concept of power to the case of youth justice naturally gives rise to the recommendation for alternative measures. Weber emphasizes the existence of power differentials, but his ‘value-free’ approach to sociology requires that we understand these differentials, rather than work to alleviate them. Pavlich (2011: 114-115) does note that we can use Weber’s approach as a framework to pose questions about justice, though – in this case, we might ask how the actors involved in the youth justice system employ the concept of ‘justice’, in light of the inherent power differentials between adults and youth.

    Good post!