Applying Weber’s Typology of Law to Mandatory Minimum Sentences in Canada

Mandatory minimum sentences are fixed sentences which a judge must give to a person convicted of a certain crime. The individual has to serve the minimum sentence according to the law, rather than relying on the judge’s discretion. For the sake of this response, we will be discussing mandatory minimum sentences revolving around drug-related crimes. More specifically, we will focus within Canada and the relatively new laws surrounding drugs.

To begin, in Canada, and especially in B.C., the application of mandatory minimum sentences involving marijuana has caused a controversy. However, there is less of an argument on mandatory minimums for offences involving hard drugs. Because many citizens remain in belief that the overall crime rate is increasing, despite evidence showing otherwise, they continue to support the laws surrounding ‘getting tough on crime.’ (Roberts, 2003) I raise this belief of an increasing crime rate because it helps cater to the creation of mandatory minimum sentences for drug-related crimes. The government imposing these sentences has simply responded to the peoples’ beliefs. Our current Prime Minister, Stephen Harper, has been very outspoken when it comes to his reasoning behind getting tough on drug crimes. Regarding the changes being made, he has stated that the Canadian public has been very supportive. He also discusses the notion that having these mandatory minimums provides certainty of a punishment and therefore, acts as a deterrence. The length of punishment does not necessarily matter; it’s the certainty that does. Lastly, Harper truly believes that not doing anything will not solve the problem of drug-related crimes. In these two short interviews, Harper responds to the public’s questions regarding drug crime mandatory minimums and again, illustrates that this was a response to the public and an act towards a safer environment. With reference to Max Weber, it is important to note that the public plays a crucial role in these newly imposed sentencing minimums. This thought will be discussed further in relation to Weber’s theory of ‘social action.’

To sum up, in Canada there are generally two main categories of drugs: Schedule 1 drugs (heroin, cocaine, etc.) and Schedule II drugs (marijuana and cannabis). Schedule 1 drugs typically hold a higher mandatory minimum sentence because they are seemingly more harsh than Schedule II drugs. The mandatory minimums associated with these drugs are the government’s response to the public’s desire to ‘get tough on crime.’

The reasoning for introducing mandatory minimum sentences is best illustrated by Max Weber. Weber, a sociologist, created a theory that connected the individual to the broader social structure of society. According to Weber, for law to be rational it must be ‘rule-governed, systematic, make use of logical interpretations of meaning, and be intellectually formed.’ (Pavlich, 2011) Rationalized law tends to come from legal control that ensures obedience to impersonal rules. Much like Stephen Harper stated, the mandatory minimum sentences were imposed to place a certainty among people that punishment would follow the crime. The mandatory minimum sentences were also designed to act as a deterrence and increase obedience amongst the public.

Weber also created four ‘basic legal thought’ categories that helped explain law making and law finding. Amongst the four categories: substantively irrational or rational, and formally irrational or rational, it is hard to place one modern legal system directly into one of these categories. (Pavlich, 2011) However, with regards to mandatory minimum sentences, the formally rational category outlines this law relatively well. To expand, a formally rational system involves situations where rules are clearly stated and followed by the public. With consideration of mandatory minimum sentences, the individual is not taken into account and external factors have no role in the decision making process. External factors may include things like religion or ethnicity. The mandatory minimum sentences are solely based on the act of wrongdoing. Justice is blind to anything beyond the law-breaking act. The law is applied regardless of who the individual is. Because the law is applied regardless of the circumstances of the individual, this contributes to the outcome being highly predictable. According to the current mandatory minimum sentences revolving around drug-related crimes, everyone convicted of either production, trafficking, importing/ exporting of drugs will receive the same minimum sentence despite their external circumstances.

‘Social action’ is a prominent concept to Weber because it refers to the meanings behind a person’s actions in a given society. Weber’s theory was driven from the interest of understanding why people act the way they do in accordance to the law and why they take into consideration another person’s reaction. People often intend for someone to relate to their actions. This intention is why people act the way they do. Within the concept of social action, Weber developed ideal types to help categorize individuals. In the case of mandatory minimum sentences, Weber’s category of ‘instrumentally rational action’ helps illustrate the reasoning for the changes of law. Instrumentally rational action is ‘organizing behaviour by treating objects and other human beings as means to achieving particular ends.’ (Pavlich, 2011) In this case, the means to the end is using the mandatory minimum sentence as an end to the drug-related crimes. The end result not only takes the people out of society for a given period of time, but also acts as a deterrent for future wrongdoings.

Lastly, Weber created various forms of authority that illustrate the role that power and discipline have over people. One of Weber’s forms of authority is the rational-legal type of legitimate authority. This authority type is described as having a common belief in the legality of rules and the right to enforce authority through using the rules. (Pavlich, 2011) This type of authority is supported by legality and is obtained through a selective process. The selective process can often create a sense of stability amongst the public. In terms of mandatory minimum sentences, the Canadian government was selected through an election process giving them the right to pass laws that were seemingly good for the country. These minimum sentences were viewed as being both rational and legitimate in terms of the legal system.

To conclude, Weber was able to provide distinct characteristics of various societies and the different relationships that build within a society. He also provided reasons behind why people behave the way they do and take into account the consideration of others. In Canada, mandatory minimum sentences are Stephen Harper’s way of responding to the public’s desires of stricter penalties on drug-related crimes.

To conclude, Weber was able tpovide distinct characteristics of various societies and the different relationships that build within a society. He also provided reasons behind why people behave the way they do and take into account the consideration of others. In Canada, mandatory minimum sentences are Stephen Harper’s way of responding to the public’s desires of stricter penalties on drug-related crimes.

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One response to “Applying Weber’s Typology of Law to Mandatory Minimum Sentences in Canada

  1. Great use of linked sources. The interviews help to establish the PM’s position regarding drug laws in Canada.

    When you state that “The mandatory minimums associated with these drugs are the government’s response to the public’s desire to ‘get tough on crime.’”, you are drawing on a Durkheimian understanding of the link between consensus and law. Durkheim proposes that acts are criminalized because they violate and offend the collective conscience (rather than being ‘wrong’ because they are illegal). Weber’s theory of law is more nuanced. Drawing on his perspective, we might say that the passage of mandatory minimums reflects the ability of certain groups (ex. moral entrepreneurs, political members of the current federal government) to access and manipulate law. Their ability to do this, in this case, was based in part on their success in tapping into public fears related to crime and drugs.

    I agree that mandatory minimum sentences exemplify the formally rational legal form. All of Weber’s criteria are met. Indeed, the criticism from the trial and appellate courts that have been striking down these laws is that they are *so formal* that they limit the ability of judges to consider Charter-relevant substantive factors.

    See: http://www.cbc.ca/news/canada/british-columbia/minimum-sentence-for-drug-trafficking-struck-down-by-b-c-judge-1.2543704 .

    Good post! You have thoroughly applied Weber’s theory.