Tag Archives: Weber

YOA to YCJA – Applying Weber’s Typology of Law

Coming to force on April 2nd, 1984, the Young Offenders Act (YOA) was enacted to counteract the many failures in the criminal justice system under the Juvenile Delinquents Act (JDA) and the handling of young offenders, more specifically, to address the issue of offenders’ rights. Bill C-61 (what would become the YOA) experienced extensive study and debate in parliament, including the input of more than 40 separate interest groups in the molding of the Bill. With the institution of the Canadian Charter of Rights and Freedoms in 1982, many provisions of the 1908, outdated JDA were found to be ignoring the now clearly outlined legal rights guaranteed by the Charter. One of the most important changes that the Act brought about was the setting of a minimum prosecution age of twelve and a Canada-wide maximum age of seventeen.

As revolutionary as the new YOA was in comparison to the JDA, many issues were quickly raised in the following years after it’s institution. Some of the more important changes that parliament looked to apply included a more selective use of the formal justice system, a reduction on incarceration of youth and increasing the focus on reintegration of youth following custody. Simply put, the government wanted to keep young people out of the courts and correctional systems for adults. This was not only because courts and corrections were already bogged down as it is, but because the sentences and reintegration techniques used for adults had been proven to just not work for the gaping level of maturity between youth and adults.

If we look at this change from the YOA to the YCJA from a Weberian perspective, Canada’s legal system resembles that of a Formal System of Law, exhibiting both an empirical and logically rational type of formally rational law through its Common Law and Civil Law (Quebec) systems. That is, Canada’s legal system is “self-sufficient and uses internally specified rules and procedures to make decisions.” However, this change was brought into place by external factors to the laws in place, such as overuse of the court systems and overflowing correctional facilities which in turn forces the hand of the government to make a decision more in relation to that of a Substantive System of Law. The decision to take into account the Criminal Justice System’s overcrowding and overuse, as well as the maturity of the youth susceptible under the YOA is external to what is found in Canada’s Laws and plays on our ethical frameworks rather than a strictly legal-based decision. The decision was based not on an interpretation of the law in and of itself, but rather of the morality and ethics of how we punish youth deviance and what level of mental capability they are, and we are expecting them, to be operating at.

Weber also talks about the administration of power, which he defines as, “the probability that one actor within a social relationship will be in a position to carry out his or her will despite resistance, regardless of the basis on which this probability rests.” In the relationship at hand, Weber could argue that our youth are on the lower (if not the lowest) level of the social power spectrum due to their maturity and lack of legitimate social value as young, learning, immature individuals. We as adults are then responsible for effective administration of our power towards youth. By putting young persons in the same categories of criminal activity and punishment, and to be adjudicated by the same appointed individuals as more rational and deviant criminals, then can be argued as illegitimate when it comes to the power and rationality juvenile delinquents. Rather, reintegration of delinquent youth is more plausible than that of adults and can be done in a fashion that plays on the lower levels of maturity and intelligence than that of adults. Smaller forms of shaming and punishment that forces the youth to “pay back the community” in a way meaningful to his/her victims that does not stick the juvenile with a criminal record is beneficial to everyone within society and is only possible due to the power differential. Such methods would not work on more matured adults and should therefore only be applicable to those, as the YCJA states, as under seventeen years of age.

Weber would argue that this change was brought into account by the lack of power juveniles have in society compared to adults and a large differential between adult and youth maturity of action. Change then, in accordance with Weber’s theory, was administered in a substantively rational way, despite being brought about by a more formal system of law, and uses the fluctuation of adult versus youth power to make effective punishments while not criminally labeling youth the same way adults are susceptible in Canadian society.

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Food for Thought: Applying Weber’s Typology of Law

This week, we studied Max Weber’s sociology of law. Weber’s theories continue to inform socio-legal scholarship, particularly in areas concerned with changes in legal systems over time, the ‘bureaucratization’ of law and government, the administration of law, and the legitimacy of legality.

Weber employs a typology of basic categories of legal thought – ideal-type descriptions of particular ways of understanding and acting in relation to law.

Food for Thought:

For this week’s Food for Thought exercise, I would like to encourage you to use Weber’s theory as an analytical and explanatory framework for making sense of a particular socio-legal phenomenon. You may choose one topic from the following list.

Possible topics (choose one):

  • The emergence of the Restorative Justice movement
  • Contemporary Canadian Access to Information / Freedom of Information laws
  • The current Canadian process for adjudicating refugee claims
  • The parole process and Parole Board decision-making
  • The Supreme Court of Canada’s decision in Tsilhqot’in Nation v. British Columbia, [2014] SCC 44
  • Mandatory minimum sentences associated with firearms or drug-related offences in Canada
  • The replacement of the Young Offenders Act with the Youth Criminal Justice Act
  • The Supreme Court of Canada’s decision in R. v. Stinchcombe, [1991] 3 S.C.R. 326
  • The Supreme Court of Canada’s decision in Askov v. R., [1990] 2 S.C.R. 1199
  • The recent motion passed by the Benchers of the BC Law Society that directs the Law Society to conduct a referendum of all BC lawyers regarding a proposed law school at Trinity Western University

Once you have chosen your topic, your task is to write a post that:

  1. Opens with a brief overview of the topic, with reference to supporting sources (this should take up about 1/3 of your post);
  2. Applies Weber’s theory – especially (but not exclusively) his ‘basic categories of legal thought’ to explain the topic.

The richer and more engaged your application of Weber’s theory, the better.

If you decide to prepare a post in response to this question, it must be submitted before class on October 14, 2014

 

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Ordeals, witches and Weber.

Trial By Ordeal

Trial by ordeal was a way of medieval trial. According to Kerr, Forsyth and Plyley (1992), traces of it date back to 1118, but had a much more widespread use during the span of 1166 to 1215 in England. Eidleberg (1979) even makes note of its use as early back as the year 500 in Roman and Greek law systems. Trial by ordeal is exactly what the name describes it as; a trial for someone who has committed a crime, that is put through a test, or an ordeal, to determine their guilt or innocence. As it was utilized elsewhere other than England for longer, I believe that it is important to make note that “[t]rial by ordeal was an essential part of the judicial system of the pagan Germanic peoples, and was preserved and further developed following the conversion of these peoples to Christianity” (Eidelberg, 1979, pg.106).  The fact that it was refined and developed more once the Hot IronGermanic peoples were converted to Christianity, easily explains its acceptance in England. An originally pagan judicial way, was embraced by the God fearing Christians of England. Kerr et. al make use of a quote from Morris saying “an instance in which God’s guidance was merely hoped for; it was required for the normal administration of justice. Men were convinced that they could not run a system of justice without securing specific rulings from God” (1992, pg.574-575). Trials were usually made very formal. Somewhat of a religious spectacle, complete with ceremonies (Eidelberg, 1979). Popular ordeals were of cold water, and hot iron. For cold water, a person would be submerged in water. If they floated, it was said that they were guilty, and innocent if they sank. Only some interpretations of this ordeal mentioned an innocent person actually being pulled from the water. Ordeal of hot iron was when a scalding piece of iron was placed into the accused’s hand. They had to hold it for a certain amount of time before being able to drop it. Their hand would then be wrapped up, for about three days. After the three days, if the hand was badly burnt/infected/pussing, then the person was deemed to be guilty (Kerr et. al, 1992).

Witch Trials

In the 17th century, there were three largely famous witch related events in towns in Germany, France, and most well known to us in North America, Salem Massachusetts (Rapley, 2007). The practice of witchcraft was something seen as very serious, with a punishment of death (Goss, 2008). Everything with witchcraft at this time had to do with God and Satan. Witches were seen as people who called on satanic powers, and dark spirits in order to tell the future, or harm other people. These witches were seen as an enemy of the church (Goss, 2008). Very few of the people who were ever deemed to be a witch actually practised any form of witchcraft (Goss, 2008). Alongside that, Goss (2008) also makes note of the massive increase of executions from 1500 to 1700 in Europe.Witch trial In the United States, the numbers weren’t as high. People would be accused of being a witch by their neighbours, or from what I have read, people that just plainly didn’t like or get along with the other person. These people would go to a trial, and luckily, not all were found guilty of witchcraft. There was even a case where the acquitted ‘witch’ was able to successfully counter sue her accuser (Goss, 2008). From all accounts though, it seems that witches were used to help keep people in line. I believe that the use of the witch was the medieval way of creating a moral panic, as a means to promote a solely Christian faith based society. The examples of burning witches at the stake was a way to allow the church to show people what would happen if they strayed from the church.

Weber

Max Weber categorizes legal thought into what is referred to as ideal types.  He looks at the formal vs substantive law systems (rules and procedures vs external criteria), and how they are irrational or rational (Pavlich, 2011).  This leads to the four types of ideals: substantively irrational/ration, and formally irrational/rational.  As Pavlich (2011) notes, nothing will fit perfectly into one type.  But for us, trial by ordeal and witch trials fit enough into one each.  I believe that these two old practices fall under Weber’s formally irrational category of legal thought, and substantively irrational category of legal though, respectively.  Let’s go through the criteria of the formally irrational type, and see what kind of matches can be made, before switching to the other (class handout, Larsen, 2013).

1. “Decision-making rests on magic, prophecy, or revelation.  These means are inaccessible to the intellect.”

I think it is safe to say that this fits with a system of judgement that was entirely faith based.

2. “Formal in the sense that particular rules are to be followed – often in a complex ritualistic fashion.”

Each ordeal had set rules to be followed in how it was to be administered, as well as the religious rituals to go along with it.  “A framework of religious ceremonies including celebration of mass and the reception of communion prior to the actual ordeal” was a standard thing (Eidleberg, 1979, pg.106).

3. “Outcomes of decisions are not predictable.”

Outcomes were wildly unpredictable in medieval times.  Just the nature of the ordeal left too much up to chance, or even just the simple physics and nature of the ordeal.  In modern science, Kerr et. al (1992) applied scientific tests to the ordeals, and only the ordeal of cold water is readily predictable. This was done by comparing a persons body density with that of water.

As stated, I believe that the criteria given for the substantively irrational type fit well for the witch trials (class handout, Larsen, 2013).

1. “Lawmakers and law discoverers refer to one or more external criteria, but do not follow general rules or norms.”

It could be argued that the prosecution and execution of people claimed to be witches turned into the norm, but I will argue that it was not.  These people who were deciding that these witches were real, and needed to be dealt with, definitely were using external criteria, and not following general, or normal guidelines.  Religious views, wild emotions go the better of people in power to create and enforce laws.

2. “Decisions are made on an ad hoc basis, with no formal efforts to maintain consistency.”

From what I gathered, there was no consistency.  Claiming people were witches,  charging people with witchcraft, and even holding them were all very inconsistent, and not much like legitimate judicial trials and arrests.

3. “Each concrete situation determines the decision.”  &  4. “Outsiders cannot predict the outcome of like cases”

Each case was looked at independently, and because all the people were different, and being accused differently, there was a lack of uniformity which didn’t allow for any sort of consistent judgments from case to case.

Interestingly enough, Rapley (2007) relates witch hunts of then, to terrorist hunting of now, which can start a whole new conversation; what systems in place today, still fit into these almost barbaric way of deciding on how to enact a law?

Eidleberg, S. (1979). Trial by Ordeal in Medieval Jewish History: Laws, Customs and Attitudes. Proceedings of the American Academy for Jewish Research, 46/47, 105-120.

Goss, K. D. (2008). The Salem Witch Trials: A Reference Guide. Westport, Connecticut: Greenwood Press

Kerr, H.M., Forsyth, R. D., & Plyley, M. J. (1992). Cold Water and Hot Iron: Trial by Ordeal in England. The Journal of Interdisciplinary History, 22(4), 573-595

Pavlich, G. (2011). Law & Society: Redefined. Ontario, Canada: Oxford

Rapley, R. (2007). Witch Hunts: From Salem to Guantanamo Bay. Montreal, Canada: McGill-Queen’s University Press

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by | October 29, 2013 · 11:21 pm

Food for Thought: Weber’s Categories of Legal Thought

This week’s class was dedicated to exploring Max Weber’s work on law and society. We focused on Weber’s ideal types of authority, his ideas regarding the nature of bureaucracies, and his work on the rationalization of law in modern societies.

We spoke about four ideal types of legal thought identified by Weber, and spent most of our time looking at the forms most associated with modernization and bureaucratization.

For this week’s food for thought question, I thought we might look at some examples of pre-modern forms of law.

Instructions:

Write a post that:

  1. briefly describes the institution of trial by ordeal, as practiced in England. Be sure to draw on – and cite – some sources of information.;
  2. briefly describes the institution of the witch trial, as practiced in medieval Europe or in the United States.
  3. Explains how both of these institutions fit into Weber’s ideal-typical categorizations of legal thought.

Your post should be submitted before next week’s class.

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Is Modern Canadian Law Formally Rational?

The food for thought question this week asked us to discuss whether modern Canadian law falls under Weber’s category of being “formally rational”. I will go piece by piece through Weber’s definition to establish the answer to this question.

According to our handout (Which I refer to because it is easier to pick apart than going through the Pavlich text), Weber defines formally rational law as having rules that are clearly stated and followed. I would argue that modern Canadian law definitely fulfills this requirement. We have law written in statutes such as the Charter of Rights and Freedoms and the Criminal Code of Canada. These are clearly stated (in most cases), and are able to be followed relatively easily.

Another requirement is that rules are applied to all similarly situated cases in an identical manner. I cannot say that this happens 100 percent of the time, as other factors sometimes are entered into a judge’s decision. It is well known that sentencing decisions can often be modified by aggravating or mitigating circumstances of an individual such as economic situation, past crimes committed, etc (Section 718 of the Criminal Code of Canada lays out sentencing rules). Judges are also human, and though they are bound by precedent, there can be disparity in sentencing for similar crimes.

This gives way to another requirement, that there must be “high predictability in decision-making”. There is some predictability because of precedent, but as I just mentioned, there can be sentencing disparity for a variety of reasons. Two people that commit the same crime can be reasonably sure that they will receive similar sentences, but they cannot be absolutely certain of this.

The final base requirement laid out for us on the handout was that there must be no external criteria applied. Pavlich defines external criteria as things like religious, political or ethical values that laws refers to (Pavlich, 2011, p. 109). This is does not completely fit with modern Canadian law, but we are moving in that direction… somewhat. Religion has become more detached from lawmaking and politics, but it still exists. Political and ethical values, on the other hand, are the reasons why members of parliament bring bills to the table. Our legal system exists based on political and ethical reasoning. Politicians introduce bills that will get them re-elected. Politicians also introduce bills that speak to issues they find personally important. The example of this type of law is the due process model. To try and explore this further, I looked for other people’s perspectives on the typology and found an example that someone had laid out:

“If, in truth, a person has killed another person, substantive justice requires that the killer be punished according to law. However, if the killer is illegally tortured by the police to confess to his crime and, as a result of the confession, the police find conclusive evidence (i.e., evidence proving guilt beyond reasonable doubt), such as the weapon, the body of the victim, etc., for the court to convict the killer (which results in substantive justice), there is no procedural justice because the process of finding guilt has violated the basic rights of the killer who, before the conviction, is a citizen entitled to the full protection of the Bill of Rights.” (http://www.oycf.org/Perspectives2/5_043000/what_is_rule_of_law.htm)

This is an American example but correlates to the due process and crime control models. If we have a formally rational system of law, the murderer will receive his due process rights and the system will be, as put by the author above, “more concerned with process and procedure than with the end result.” This is a common critique of the due process model, as it can sometimes allow criminals to get off on technicalities or violations of rules by police officers. If our justice system allowed for coerced confessions from suspects and evidence tampering, it falls more towards a substantively rational system of law which follows the crime control model. With crime control, the ends justify the means, as long as society is safe.

Another point that takes our system away from being formally rational is jury trials, again noted on our handout as being outside this typology. A system that uses jury trials is noted as substantively irrational, as there are external criteria applied and low predictability in decision making. Juries are not bound by precedent, only by the judge’s instructions and their own personal belief systems.

So to answer the question, “Is modern Canadian law formally rational?” the answer is… sort of. We certainly have many elements of a formally rational system, but elements of other parts of Weber’s typology leak into it (Elements of a crime control model as substantively rational, jury trials are substantively irrational). I think we are moving in the direction of being formally rational, and Weber might agree with me as Pavlich (2011) says modern law is “increasingly tending towards being formally rational in either empirical or logical ways” (p. 115). It is, in my opinion, the most ideal of Weber’s types of law but we have not quite reached it yet. Society and politics still cling too tightly to the idea of incarceration as well as swift and harsh punishments as effective measures for crime. Due process is still seen by too many as an obstacle to get through rather than as a shield against discrimination, bias, and unfair treatment within the legal system.

References

Pavlich, G. (2011). Law & Society Redefined. Canada: Oxford University Press.

http://www.oycf.org/Perspectives2/5_043000/what_is_rule_of_law.htm

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