R. v. Askov and Webers Typology of Law

The Supreme Courts Decision in R. v. Askov [1990] was made and supported by previous cases that had similar situations. Askov, Hussey, Gugliotta, and Melo were charged with conspiracy to commit extortion on November 1983. All counsels have agreed on a date early in July 1984 for the preliminary hearing. The trial did not happen until September 1986, nearly two years later after the conclusion of the preliminary hearing. When the trial began, the accused moved for a stay of proceedings on the grounds of unreasonable delay. Reason for this was because their right under Section 11. Of the Charter had been infringed. Section 11. States, “Any person charged with an offense has the right to be tried within a reasonable time”. The delay was due to institutional problems and the defense neither caused the delay nor agreed to it. Using precedents, the case was eventually resolved and the accused were not convicted. The delay could not be justified and was unreasonable. The case can be read here.

If we were going to assess this case through Weber’s perspective, the legal system in Canada would be considered formally rational. With that being said, Canada would fit most of the criteria that are set for formally rational. With this case, rules were clearly stated and followed. The accused did not go out of their way to cause the delay and they had no control over it. Also no external criteria were applied and the final decision seemed to be based on precedent cases. There was a high predictability in the decision-making due to similar cases that had been presented before. The decision was based on existing rules and in Weber’s perspective this would seem to be formally rational.

There were some parts of the case that had met criteria for substantively irrational. The crown argued that people who are suppose to be brought to trial should be given trial no matter how long the process takes. In accordance to Weber, the crown was trying to make a decision on an ad hoc basis. Based on previous cases that are similar, this would have disrupted the consistency. It would not have been fair to make an exception and to convict the accused. Weber would have argued that making a decision on an ad hoc basis and convicting someone new would have been irrational. Since there are similar cases to this case, this would make the whole justice system unpredictable.

Overall, the Canadian legal system fits well within the formally rational context. This case would be an example of how the Canadian justice system fits most of its criteria with being formally rational. Rules and guidelines were clearly followed and there was consistency with how previous decisions were made. This would also present a high predictability in the decision-making process. Although the crown had tried to make the judge make a decision on an ad hoc basis, which would have disrupted the consistency within the legal system, the judge went on to prove that general rules and norms should be consistent and followed. This case is a great example of how all the people working within the Canadian legal system fit into more than one criteria type. In this case, the judge and the defendant would fall into the formally rational criteria, while on the other hand; the crown would fall under substantively irrational criteria.

In the case of Askov, we mainly see the formally rational type. The final decision was made on precedent cases and did not disrupt the consistency within the legal system. Weber would state that Canadian legal system in regards to the case of Askov would be a formally rational type.


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One response to “R. v. Askov and Webers Typology of Law

  1. You suggest that the Crown’s approach to the case resembled a substantively irrational legal form, as they were ‘trying to make a decision on an ad hoc basis’. Was this the case, though? The Crown was attempting to persuade the court that a substantive criterion – “all persons charged with an offense should be brought to trial, regardless of how long it takes” – should apply in this case. Does this not sound like a substantively rational argument?

    I would be interested is seeing some additional explanation (drawing on details of the case and decision) as to how the Askov case reflects a formally rational legal form.