Applying Weber’s Typology of Law: The emergence of the Restorative Justice movement

The restorative justice movement, in Canada, has been increasing in the field of the criminal justice system (CRCVC, 2011). The restorative justice philosophy is a balanced approach that devotes to heal the pain experienced by the victim and the community, while simultaneously encouraging more offenders to take responsibility for their actions and repair some of the harm they have caused through restitution. Restorative justice programs enable the victim, the offender and community members to be directly involved in responding to the crime. By enabling all parties to be involved to the response of the crime, the restorative justice process is a powerful method to address not only physical injuries caused by the crime but also social and psychological injuries as well. An example of a restorative justice program is referred to as the “victim offender mediation”. This program enables a victim to meet the offender in a safe environment, reflect their thoughts about the crime with the assistance of a trained mediator. The goal is to provide the victim and offender the opportunity to develop a plan to address the harmed caused by the crime.

In 1996, the sentencing principles in the Criminal Code were changed to encourage restorative justice programs and community based programs to promote a sense of responsibility in offenders and to make reparation for the harm caused to the victim and the community. In the Criminal Code, paragraph 718.2 states that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (CRCVC, 2011).” In order for the court to suggest a restorative justice approach for the sentence, both the victim and offender must voluntarily agree to participate. In Canada, a restorative justice approach referred to as “Circles of Support” works with serious sexual offenders who are finished their sentence and released back into the community. The program increases safety of the public by enforcing a conditional plan with the offender, monitoring the offender, and making community resources available to the offender. The program allows for community members to voice their opinions and concerns, intervention with community members when necessary, and by working with police and authorities to ensure public safety.

Sociologist Max Weber considered law a “historically situated type of ‘social action” (Pavlich, 2011, pg.104). One of Weber’s key interests was to study human behaviour through interpretive means. Weber was interested to gain an understanding of the meaning associated with socially orientated behaviours, and the explanations of their development. Weber considered the law “as a kind of social action that involved an order to be obeyed” (Pavlich, 2011, pg.109). For Weber, an order is only valid when people believe it to one legitimate and obligatory. An order can be called law when it is applied by a staff of people who have exclusive powers to coerce compliance to a legal order. Weber noted that as more a society develops into a more modern society, simultaneously legal forms become increasingly rational.

The restorative justice movement in Weber’s perspective would be considered a legitimate option in the criminal justice system because it is administered by judges and amended as an alternative decision in the Canadian Criminal Code. For some, the criminal justice system is seen as a punishment that solely concentrated on fixing blame and guilt. Advocates of the restorative justice argue that victims are often forgotten in the process of the criminal justice process and should have more control in the outcome of the case. As society continues to develop and the more rational human beings become, the restorative justice movement may continue to emerge as a greater alterative in the criminal justice system. In Weber’s perspective, the restorative justice movement would be considered a value rational action type of social action. The reason being to participate in the program, the victim and offender will believe in the values that are provided by the system and then try to rationally try to realize it. The goal of the program is for the offender to accept responsibility, recognize the harm that has been done, and work with the victim to repair the harmed caused.

Weber developed the idea of the four basic categories of legal thought for creating and finding law. The four categories include: substantively irrational, formally irrational, substantively rational and formally rational. In my perspective, the category that best fits the restorative justice movement would be the category formally rational and also substantively irrational. Formally rational systems of law making and law finding are characterized by rule governed, systematic, use logical interpreting of meaning and differentiate themselves from ethics, religion and politics (Pavlich, 2011, pg. 111). In Weber’s perspective, the reason being the restorative justice movement has been acknowledged as an alternative solution by the Canadian government and amended in the Criminal Code. In addition, the restorative justice movement can also be considered as substantively irrational. Substantively irrational systems do not follow clearly articulated rules, and leap to conclusions based on emotional evaluations that differ from case to case (Pavlich, 2011, pg. 110). While the decision to suggest a restorative approach does need to meet certain conditions, in each situation, the victim and the offender can have the choice to determine the outcome. It can be difficult to predict the outcome of each case because of mitigating and aggravating factors that can vary case to case.

In Canada, the restorative justice movement was considered an effective and efficient method in helping youths and youth crime. In Canada and United States, prior to restorative programs for youths, there were great amounts of youth being imprisoned and this was problematic for people who believe youths could and should be better served. In the current society, there is a greater movement towards restorative programs for dealing with young offenders, in the Youth Criminal Justice Act (CRCVC, 2011) . Many believe this will help youths gain a sense of responsibility for what they have done, as well as reduce imprisonment. Here, the system of restorative approaches can be seen as formally rational. Once in a court, the judge can suggest a restorative alternative that can depend on multiple factors such as the age of the victim and offender, cultural backgrounds, and type of crime. Ultimately, it is the final decision for the victim and offender to participate in the restorative program. This is why the restorative approach can be seen as substantively irrational because the outcome varies case to case, and recall in the Criminal Code “with particular attention to the circumstances of Aboriginal offenders”.

In conclusion, the restorative justice movement is being recognized universally because it is believed to enhance victim satisfaction, and encourage offenders to take responsibility for their actions and repair the harm they have caused. Restorative justice system does appear to reduce recidivism and increase offender satisfaction from compared to offenders in the traditional system (GOC, 2013). The Canadian criminal justice as a whole is formally rational, but the option of restorative justice is substantively irrational because it is not consistent with every case and similar offenders.

 

References

Pavlich, G. (2011). Law and Society Redefined. Ontario. Oxford University Press

Canadian Resource Centre for Victims of Crime. (CRCVC). (2011). Restorative Justice in Canada: what  victims should know. Retrieved from: http://www.crcvc.ca/docs/restjust.pdf

Government of Canada (GOC). (2013). The Effectiveness of Restorative Justice Practices: A Meta-   Analysis. Retrieved from http://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rp01_1-   dr01_1/p7.html

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One response to “Applying Weber’s Typology of Law: The emergence of the Restorative Justice movement

  1. This is an interesting analysis. You suggest that RJ, in practice, represents a tension in legal forms between formal rationality and substantive irrationality. I think that you have effectively illustrated some of the tensions inherent in this approach to justice. RJ was originally envisioned as an alternative framework, but it has become closely integrated with the traditional (retributive) criminal justice system – hence the blurring of legal forms.

    Question: do you think that the emphasis on the specificity of a given case is a reflection of a substantively irrational legal form – or does the consistent emphasis on principles of justice and healing, coupled with the careful emphasis on process, reflect a substantively rational legal form?