A Weberian Perspective on Restorative Justice

This post was written by CRIM 3305 student MGee89

Restorative justice, a practice widely used in Canada and many other countries, has emerged recently as an alternative to traditional criminal justice methods. The UN Economic and Social Council adopted a resolution in 2002 in regards to practices and policies on restorative justice for all its participating states (Public Safety Canada, 2014), and from then on, restorative justice has become a popular approach.  The criminal justice system is adversarial in nature, and has often relied on retribution and punishment as a form of dealing with crime. Restorative justice is an approach that looks at crime as a harm done to relationships, an outlook that is anti-adversarial and not retributive. Restorative justice practices allow for a safe environment where all those affected by the crime (offender, victims, and the community) can address their needs in a way that is meaningful to all involved. It is a voluntary practice where accountability for the crime is acknowledged, as well as the harm done, in order to achieve closure, mutual understanding and reparation (Correctional Service Canada, 2012). It allows for the victim to convey to the offender what they felt, and allow the offender to be accountable for their actions by understanding the harm they have caused to another. The offender can explain themselves and their motivations and needs, as well as address the needs of the victim and allow the victim to explore with the offender the root cause of the harm (Correctional Service Canada, 2012). The end goal is to help the victim heal from the harm caused, allow the offender to take accountability and help mend the harm, while reintegrating the offender back into the community as a responsible citizen. This process entails the offender and victim agreeing on possible terms of reparation, and this type of procedure does not have any rules in place. Unlike most of the avenues for accountability for those who committing crimes, restorative justice is an extra judicial sanction and once it is chosen as an appropriate action in a criminal case, it heavily relies on emotions and needs of those involved.

Max Weber, a prominent legal sociologist, focused on how individuals interpret and find meaning within social relations.  His theory was founded on the fact that Western society was becoming more capitalist, and with capitalism came new ways of interacting with others that were based on rationality (Pavlich, 2011). Rationalization meant that authority and power now originate in obedience to impersonal rules, rather than originating from specific individuals, such as monarchs or the police.  He developed ideal types, or ways to easily categorize construct, and he categorized law into 4 types based on two variables – formality and rationality. Formal systems of law refer to systems that use internal legal rules and procedures that are applied to the facts of a particular case. On the other hand, substantive systems rely on external criteria (such as political, moral, religious, etc.) and emotional factors in making decisions (Pavlich, 2011). Both of these systems are also categorized on the variable of rationality, to make four categories of law. Rational system are intellectually formed, and governed by rules and logic, while irrational systems do not follow clear rules or prior decisions, are arbitrary and do not differentiate between legal and extra-legal methods (Pavlich, 2011). In formally rational systems of law, there are clear internal rules that must be both defined and followed, and law specifically differentiates itself from politics, religion or any other extra-legal perspectives. This allows for predictability in decision making, as decisions are based on prior cases. Canadian law is formally rational – it follows the due process model and comes to decisions based on considering similar cases and applying the facts of a particular case to prior ones. It follow internal rules, such as our Constitution and the precedent system, and uses logical application of rules. For Weber, rationalization of law is can only be applies to Western society, in particular, where a staff of bureaucrats is specifically trained to be in charge of applying legal concepts impartially and without bias (Pavlich, 2011). Restorative justice is a substantively rational technique – it refers to emotions in solution of conflict and to extra judicial criteria. Although the road to a restorative justice process is formally rational by nature, with the judge agreeing to allow the individuals involved to participate if they voluntarily choose so. However, once the process is initiated, there are no official rules for reparation. The victim will often explain their story, the offender will listen, take responsibility for the harm done and try to explain their position as well. At that point, a resolution can take the form of an apology, a restitution, or a mutually agreed upon solution that satisfies both the victim and the offender. This process is based on affect, emotion and mutual understanding. It does not allow for the predictability of a resolution, like is found in formally rational systems. Overall, although Canadian law has stayed rational, It has recently become more substantively rational for certain sanctions, with discretion and extra-judicial measures being enacted, such as community service, anger management, therapy, and conditional sentencing. In particular, extra-judicial sanctions are common for youth offenders, where first time youth who committed a non-violent offence are diverted from the court and are given warnings or therapy (Department of Justice, 2013).

Weber believed every social action had a component that was behavioral (as in the action taken), as well as a motivational component behind that behavior. Weber wanted to explore the subjective meaning of behavior, and believed that a behavior, or social action, is only social if it is purposely oriented towards others (Pavlich, 2011). Restorative justice attempts to promote dialogue between those affected by the conflict in order to gain mutual understanding behind the needs of the action as well as its consequences. Without a victim, restorative justice cannot work. The action must have had consequences on a person, as behavior is oriented towards others. Restorative justice allows us to take into account the meaning or motive behind the crime rather than just punish the behavior. It explores the motivation behind an action through open dialogue. Regular criminal justice procedures only punish based on the facts of the case (the behavior) rather than trying to understand the need (the motive), often without consideration of all of those who are afflicted by the criminal action. Often, neither the victim nor the offender are satisfied in an adversarial system, but restorative justice allows for rebuilding of relationships and trust.  Therefore, restorative justice fits well within Weber’s theory of social action as it focuses on both the behavior as well as the motive behind the crime in order to achieve mutual understanding and promote healing.

References:
Pavlich, G. (2011). Law & society redefined. New York: Oxford University Press.
Department of Justice. (2013). Extrajudicial measures. Retrieved from Department of Justice
website: http:// www.justice.gc.ca/eng/cj-jp/yj-jj/ycja-lsjpa/sheets-feuillets/measu-<http://www.justice.gc.ca/eng/cj-jp/yj-jj/ycja-lsjpa/sheets-feuillets/measu->
mesur.html
Public Safety Canada. (2014). Restorative Justice. Retrieved from Public Safety Canada website:
http://www.publicsafety.gc.ca/cnt/cntrng-crm/crrctns/rstrtv-jstc-eng.aspx
Correctional Service Canada. (2012). Restorative Justice Factsheet. Retrieved from Correctional
Service Canada website:
http://www.csc-scc.gc.ca/restorative-justice/003005-0004-eng.shtml

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One response to “A Weberian Perspective on Restorative Justice

  1. This is an excellent post – detailed and well-written.

    Question:

    Restorative Justice was initially positioned as an alternative to the traditional criminal justice system. It has, as you note, become a series of processes that are effectively integrated with the existing system. If the proponents of a full transition from retributive to restorative justice were successful in reshaping the system, how could we explain the resulting transition? Would the shift towards a substantively rational framework represent a departure from the trajectory of rationalization that Weber described?