In today’s society, one can say that the criminal justice system is far from perfect. Recently, the restorative justice movement has started to emerge more and more in Canada. In 1996, the Criminal Code of Canada was changed to include a community-based sentencing that also applied restorative elements. This aimed to help offenders take responsibility for their actions so they could make amends to both the victim and the community. Restorative Justice are often characterized by for main values: Encounter, Amends, Reintegration and Inclusion. The restorative justice program gives offenders, victims and the community a chance to discuss about the crime, to see how they can right the wrong, to restore both victims and offenders as a whole again and to also include other parties involved to be a part of this resolution.
Retributive justice employs punishment that is proportionate to the crime and focuses on the establishment of blame and guilt. The idea of proportionality states how the punishment scales relative to the severity of the offence. Although this type of system is very common to many societies throughout the world it can fail to take into account multiple factors that can result in unjust decisions. For example, a poor offender might be fined a certain amount which he could not pay but a rich offender will have no problem in paying it. Restorative justice then is the shift that believes in supporting offenders by helping them turn away from crime and behave in socially acceptable ways.
If we apply a Weberian perspective to the retributive justice system we can see how this type of system shows to be similar to the formally rational law. Weber developed the idea of the four Basic Categories of Legal Thought for law making and finding. The four categories include: Substantively Irrational, Formally Irrational, Substantively Rational And Formally Rational. Formally Rational law would best fit the retributive justice system since they tend to have rules that are clearly stated, followed, applied in similarly situated cases and are highly predictable in decision-making. Weber talks about the idea of Power which according to him is, “the probability that one actor within a social relationship will be in a position to carry out his own will despite resistance, regardless of the basis on which this probability rests”. We are slowly becoming obedient to these impersonal rules and also valuing these rules above all. In addition, the growth of the bureaucracy in the criminal justice system only serves to dehumanize society by being too rigid and technical in their dealings. But this system is slowly changing due to the retributive justice failing to recognize mitigating factors or the financial state of offenders which could lead to unjust decisions.
Weber believes that Law is a type of social action which gives meaning to a person’s action. The public remains an important factor in determining how the law is used . Furthermore, he believes that modern societies are starting to move towards the rational thinking phase. Restorative justice then becomes a kind of criticism to the retributive justice system. The legitimacy of law is often difficult to be certain since people can respond to law in different ways. Retributive Justice may favour a particular group while at the same time ignoring the needs of another group. This can lead to very impersonal rules that dehumanizes society as a whole. In comparison, restorative justice appeals to all members affected in the crime be it offender or victim. Restorative justice aims to understand crime in its social context so we can understand the root cause of it and break the cycle. This system is much more flexible in terms of resolving its conflict by offering mediation, circle sentencing or restorative conferences. This is a stark contrast to retributive justice with its strict adherence to legal principles which aims solely to punish the offender, we are slowly starting to see the shift of change towards a restorative justice system,. Weber believes that law is never absolute and is prone to change, he would categorize this change as a mix of both traditional and value rational action. Restorative Justice represents in many ways the values and practices characterized in aboriginal groups while at the same time allow people to realize the importance of these values.
In the end , we can see how laws can change and are affected by the people. In a Retributive Justice system we can clearly see its formally rational roots and has been a staple system used commonly in multiple societies around the world. We can see how restorative justice rejects the ideals and values of a formally rational legal system by applying laws that adhere to traditional and value rational action. Finally, the restorative justice movement is slowly growing and starting to show everyone how this method can reach resolution without having to adhere to such strict legal rules that serves only to empower a particular group.