Criminal Law in Action: The Weberian Perspective

1
Criminal Law in Action The Weberian Perspective

• What are status politics and how do they
  influence struggles over criminal law? What is
  the distinction between substantive and formal
  rationality, and how does the tension between the
  two play out in criminal justice institutions?

2
Webers Theory of Stratification

• Like Marx, emphasized social conflict.
• But Weber argued that there are three bases of
  social inequality class, power and status.
• Class
• A group of people who share a common place in the
  economic/occupational structure and therefore
  have certain interests in common.
• Power
• The ability to coerce someone to do something
  against his/her will.
• Status
• The approval, respect, admiration, or deference a
  person or group commands by virtue of their
  imputed qualities or performances.

3
A Complex Theory of Stratification

• Can you think of groups that are high on some of
  these dimensions but low on others?
• Can you think of important social conflicts that
  do not seem to be primarily about class-related
  interests?

4
The Importance of Status Conflict and Symbolic
Politics

• Status groups share similar lifestyles, beliefs,
  and standards of behavior, including patterns of
  consumption and work orientations.
• Status politics/conflicts are about the
  distribution of prestige rather than material
  rewards.
• Status politics groups may seek to criminalize
  certain behaviors in order to enhance their own
  status/prestige.
• The goal is symbolic legislation.
• Examples?

5
Examples of Status Politics

• Historic example Prohibition of alcohol
• Patterns of alcohol consumption changed in the
  19th century
• Middle class reformers sought legislation that
  represented their values/lifestyle
• Contemporary examples?
• Implication struggles over criminal law may not
  simply stem from class conflict goal may be
  symbolic rather than material.

6
Weber as an Analyst of Law and Bureaucracy

• Categorized legal systems along two main
  dimensions formal vs. substantive and rational
  vs. irrational.
• Formal legal systems disputes are decided by
  distinctly legal procedures (as opposed to
  religion or other kinds of normative systems).
• Rational legal systems outcomes decided by
  abstract, general rules (rather than on a
  case-by-case basis).

7
Four Ideal Types

• Substantive irrational legal systems
• Non-legal criterion used no general rules
  applied (Solomon custody dispute).
• Formal irrational legal systems
• Involve distinctly legal procedures, but outcomes
  are not determined by general rules
  (trials-by-ordeal).
• Substantive rational legal systems
• Decisions are made on the basis of general rules,
  but these rules are not explicitly legal (i.e.
  religious, psychiatric).
• Formal rational legal systems
• Decisions are based on based on general and
  distinctly legal criteria (rule of law aimed at
  universality, fairness).

8
Recent Trend Toward Formal Rationality

• Policies aimed at rehabilitation required
  irrationality (in the Weberian sense).
• Determinant/mandatory sentencing laws represent
  an attempt to subject cases to general rules
  rather than discretionary decision-making.

9
Formal Rationality Continued

• Questions to be explored
• Is discretion ever really eradicated?
• Does equal treatment of like cases mean equality?
• Is equal treatment a myth or reality?
• Cases
• Mandatory arrest policies
• Mandatory sentencing laws for crack offenders