Rationalist Theory In Canada

In Canada there is a process to lawmaking that follows the rationalistic model — they are the functionalist view, conflict theory and the ‘moral entrepreneur’ thesis. In this essay, the rationalistic model, will at first, be explained then this paper will inform the reader to the functionalist view, the conflict perspective then the moral entrepreneur theory and what four different Canadian laws follow this theory. The essay will then, finally, explain which law is best understood with reference to the theory that it is linked to in comparison with others.

The rationalistic model is used to describe that, “law (in particular, criminal laws) are created as rational means of protecting the members of society from social harm. In this perspective,

crimes are considered socially injurious. This is the most widely accepted, but also simplistic theory of lawmaking.” (p109) A law that can be seen as a rationalistic model is Bill C-12, though it is also known as the “Act to Amend the Corrections and Conditional Release Act”. This bill’s ideology follows under the former Conservative Government’s ‘tough on crime’ stance as the bill is stated to make it mandatory for an offender to do a urinalysis before they are granted parole but if they choose to deny it or if it comes back positive the Parole Board cannot allow the offender parole as drugs are illegal in Canada — thus, it is based off of the “lawmakers and powerful interest groups who define what activities may be harmful to the public welfare ….[which are based off of the] value judgements, preferences.” (p109). In other words, the Government has seemingly increased their reliance on different corporations to put their money

into the country in order to create a stimulus and in return the Government basis’ their laws towards the corporations wishes - whom may be looking for an excuse to profit from the high rates of criminals in the prison system, especially in the US, which fits the rationalistic model; this is also very reliant on the morals of the Government and further on the citizens of the particular society in question. As Hepatitis C and HIV is heavily common among drug users through infected needles it can be strongly speculated that because their can be high rates of Hepatitis and HIV in the prison “(of [HIV] around 1 % among men and 1.2% to 3.3% among women). [and] (3% among male volunteers and 7% among female volunteers) [in Quebec provincial prisons]” (Ford et al., 1995), therefore there is reason to keep users in prison; as sick as the idea is.
“The functionalist model of lawmaking, …. is concerned mainly with how laws emerge …. [And state how] customs are norms or rules about the ways in which people must behave if social institutions are to preform their functions [if] society is to endure …. [ie.] economic transactions and contractual relations, property rights in marriage [and divorce], or deviant behaviour.” (p. 109). A law that can be defined under the functionalist model of lawmaking is an amendment to Bill C-591 the “Canadian Pension Plan and the Old Age Security Act [in relation to] pension and benefits”, it states that it is now “prohibit[ed to make] the payment of a survivor’s pension, death benefit or orphan’s benefit to an individual who has been convicted of first or second degree murder or manslaughter of the contributor.” (Kesteren, 2015). The law

directly targets a subgroup of female serial killers called ‘angel(s) of death’ or ‘black widows’, these killing sprees are typically done to make capital gain through life insurance pay outs which see’s it’s victims being “poison[ed] …..

[which] includ[es] family members, [and] spouses.” (Miller, 2014). Arguably this helps society function because the one that has taken another’s life is not making capital gain from their crime; therefore, they cannot act in such a way and expect to be rewarded from it. Also, on a social institutional level other family members and the public are, understandably, distressed over the death of the one that they lost, but if the one that caused the death of the person were to make gain it would hardly be fair on a moral and norm basis. Though there is mixed research whether there can be deterrents within the laws, this perhaps can be a deterrent as the MPs have struck down on not providing capital gain to the assailant but then again, there is can be the mentality of ‘getting away with it’ as well. Nevertheless, this follows the functionalist model of lawmaking because it reinforces a behaviour as wrong, and unproductive to societies members and institutions.

The conflict perspective/theory involves how “the elite class…. use social control mechanisms …. to perpetuate their own advantageous positions in society.” (p.109). Further they can gain an “unequal access to economical goods …. resulting [in gaining capital versus someone poorer who would

be unable to do this.]” (p109). It is scenarios such as these ones that allow Bill C-28, also known as the “Budget and Economic Statement Act” of 2007 to “reduce the

general corporate income tax rate [which went from 11.5% to 10%, when it was implemented]”. (Flaherty, 2007). Although this does not seem like the most drastic change it allows big business institutions such as banks and the elite to get ahead and gaining an unfair advantage over the regular public, as their workers are already earning a lot of money. An example of the elite class taking advantage of their Government’s softened rules, or lack there of in the States, is the Wall Street Crash of 2008. “Bear Stearns and Lehman Brothers [of the US] made highly leveraged investments in mortgage-backed securities and CDOs that turned sour, and those choices contributed to these firms’ demise. Some choices might have been good bets ex ante, but
turned out to be bad ex post. A fair-odds bet does not guarantee a winning wager …. and of
little assistance to help firms weather the 2008 economic storm.” (Stringham, 2014). As no one could afford to make investments anymore, the one’s who took out the loans and mortgages fell into default eventually , and the housing market was also going down; thus creating the crisis and foreclosures. Though Canada has tighter laws and regulations surrounding the banking systems and investments, this is an example of what can happen if the Government becomes to relaxed, which is the problem with conflict perspective/theory that the elite will do anything they want to get as much capital gain as they can.

Finally, “the moral entrepreneur theory attributes the precipitation of key events to the “presence of an enterprising individual or group.

Their activities can properly be called moral enterprise, for what they are enterprising about is the creation of a new fragment of the moral constitution of society, its code of right and wrong.” (p109) This means that a group of people will go around to distinct between what is right or wrong. Arguably, Bill S-2; otherwise known as the “Incorporation by Reference in Regulations Act” is important for this theory because it can help the moral enterprise because of references. This Bill will “impose an obligation on regulation-making authorities to ensure that a document, index, rate or number that is incorporated by reference …. [though the person will] not [be held] liable [to the affect of being] found guilty of an offence or subjected to an administrative sanction for a contravention relating to a document, index, rate or number that is incorporated by reference unless certain requirements in relation to accessibility are met.” (Dechert, 2015) Further, the moral group can look at a Bill’s reference to further understand the reasoning behind it and whether they agree if it is right or not.

Though the moral entrepreneur theory and the functionalist model of lawmaking can be similar is some aspects; the functionalist makes the most sense because of the reasoning why it is needed, the theory behind it wishes the reader to understand the

reasonings behind a laws birth, and why it is so necessary. Without this theory, the public could not see why the amendment to “Canadian Pension Plan and the Old Age Security Act” is need when it very much is.

In Canadian Lawmaking, the rationalistic model, the functionalistic model, conflict theory, and the “moral entrepreneur” thesis are all important, but as stated before the functionalist model of lawmaking is the most important because it describes the reasoning behind the need for the law itself, something that the public must need to reach their decision between what is right and wrong.