Theories of Punishment PDF

CHAPTER I THEORIES OF PUNISHMENT Jacques Claessen 1. INTRODUCTION Punishing offenders is, for most individuals, something logical, just and self-evident. Generally, they see retribution and/or prevention as the most important justifications a...

CHAPTER I THEORIES OF PUNISHMENT Jacques Claessen 1. INTRODUCTION Punishing offenders is, for most individuals, something logical, just and self-evident. Generally, they see retribution and/or prevention as the most important justifications and goals of punishment.1 However, punishment is not as obvious in certain cases. Take the example of SS officers and Nazi collaborators who evaded justice and were only tracked down decades after the end of World War II. The question that presents itself is whether someone should still be punished more than half a century after the crimes were committed. This example mainly concerns men who committed their crimes while they were young – in a context that was anything but ordinary. What would a criminal court in 2015 aim to achieve by punishing these individuals? Preventing the person from committing such a crime again seems to be an irrelevant goal. Could such a punishment discourage other people from committing similar crimes? The context in which these men committed their crimes is not likely to occur again in Western Europe. The primary goal of punishment, thus, seems to be retribution, i.e. they deserve their punishment because the crimes they committed are not yet atoned for. The ‘debt’ that they incurred during World War II is in fact only now being paid off. The question still remains whether the need for retribution does not in fact decrease as the years go by. Furthermore, does retribution still have meaning given that these offenders are now in the final stage of their lives? A life sentence will in their case only take away their freedom for a few years. By contrast, they have been able to live in relative peace and quiet for more than half a century. Some of them have not even felt actual remorse for their crimes. But what if an offender out of remorse (symbolically) repairs the harm committed as much as he can, henceforth lives an exemplary life and does a lot of good for society? Is retribution still so self-evident then? 1 See section 4 for a detailed exposition of the concepts of retribution and prevention. Intersentia 11  Jacques Claessen Different examples can be given. What should be done with offenders who are imprisoned for life for very serious crimes such as double murder? Suppose that, as time passes, evidence is presented that several of these offenders have a new outlook on life and that research demonstrates that the risk of reoffending is low in their cases? What punishment goal is still served after twenty, thirty or forty years of imprisonment? Again, the primary goal of punishment seems to be retribution. But is an appeal to retribution sufficient to legitimise imprisonment until someone’s death? The United Kingdom and the Netherlands seem to find this sufficient. Both countries have implemented a ‘life means life’ policy in cases in which life imprisonment is imposed. Life imprisonment means de facto detention for the rest of one’s life. But these two countries are the exception rather than the rule in Europe. Most other European countries have implemented a review mechanism; in those countries someone’s life sentence can be reviewed after a certain period of time. Belgium and Germany have such a system, applied after fifteen years of imprisonment. The ECtHR states that, over time, rehabilitation becomes a more important goal of punishment than retribution.2 Other countries, like Norway, do not even have life imprisonment. In Norway, imprisonment lasts up to 21 years. After this period, an offender can only be detained if he still poses an unacceptable danger to society. Retribution is not regarded as a legitimate justification for the continuation of imprisonment after 21 years. But retribution and prevention as punishment goals may also conflict in less extreme examples. Judges might have doubts regarding the type of sanction that an offender might deserve. From a retributive perspective imprisonment might be desired, but in light of preventive goals community service or electronic detention might be a more appropriate sentence. Alternatively, punishment might sometimes be waived altogether if examined from the preventative perspective. Sentences, and in particular imprisonment, can have a negative effect on offenders as it can result in the loss of one’s job, house and/or partner, it can lead to stigmatisation and it can even have a criminogenic effect because prison can in fact sometimes be ‘a high school for criminals’. Empirical studies demonstrate that community service and electronic detention are more effective than imprisonment in terms of reducing reoffending.3 Nevertheless, some offences are so serious that – seen from the standpoint of retribution – a judge cannot impose any other type of punishment than imprisonment. In short, although punishing offenders is, for most people, something logical, just and self-evident, we can definitely question these assumptions. 2 See: Vinter v United Kingdom, Appl. No. 66069/09, 130/10 and 3896/10, 9 July 2013. 3 H. Wermink, A. Blokland, P. Nieuwbeerta and N. Tollenaar, ‘Recidive na werkstraffen en na gevangenisstraffen. Een gematchte vergelijking’ Tijdschrift voor Criminologie (2009), pp. 211–227; A. Blokland, H. Wermink, L. Robert and E. Maes, ‘Wederopsluiting na elektronische detentie en reguliere detentie in België’ Tijdschrift voor Criminologie (2015), pp. 31–58. 12 Intersentia  Chapter I. Theories of Punishment This chapter is structured as follows. Firstly, we will deal with the concept and nature of punishment. Subsequently, we will explain the influence of the Enlightenment on the ‘re-invention’ of the various theories that attempt to legitimise punishment and criminal law. An explanation of the most common theories of punishment will then be given. Next, we will deal with the manner in which criminal law is currently applied. Finally, a conclusion will restate the most relevant aspects of this chapter. 2. THE CONCEPT OF PUNISHMENT Based on the definitions of punishment formulated by a variety of criminal law scholars, we can conclude that the content or nature of punishment is the intentional infliction of suffering.4 The British legal philosopher Hart defines punishment based on the following five cumulative elements: (1) it must involve pain or other consequences normally considered unpleasant; (2) it must be for an offence against legal rules; (3) it must be of an actual or supposed offender for his offence; (4) it must be intentionally administered by human beings other than the offender; and (5) it must be imposed and administered by an authority constituted by a legal system against which the offence is committed.5 The American legal scholar Packer concurs with Hart’s definition of punishment, but adds an additional cumulative element. This sixth element, however, is not related to the content or the nature of punishment but to the goal for which punishment is imposed, that is to say retribution and/or prevention.6 The intentional addition of suffering is therefore an essential element of punishment for both Hart and Packer. Nowadays, several criminal law scholars describe punishment in a broader manner. They define punishment as ‘to reprove and to call to order’ (Hulsman), ‘the disapproval and rejection of the action’ (Glastra van Loon), ‘to reproach or to blame normatively, so that the person addressed suffers’ (Gutwirth and De Hert) or – the widest definition – ‘a government response to a violation of a penal provision expressed in the context of a criminal process’ (De Hullu).7 The last definition in particular makes the traditional distinction between punishment and (non-punitive) measures within the criminal sanction system less important. 4 C. Kelk, ‘Studieboek materieel strafrecht’ (Kluwer 2013), p. 9. 5 H.L.A. Hart, ‘Prolegomenon to the Principles of Punishment’, in H.L.A. Hart, Punishment and Responsibility. Essays in the Philosophy of Law (Clarendon Press Oxford 1968), pp. 4–5. 6 H.L. Packer, ‘The Limits of the Criminal Sanction’ (Stanford University Press 1968), pp. 21, 27 and 31. 7 See for these definitions: P. De Hert and S. Gutwirth, ‘Het leedprincipe, het strafbegrip en de schuld zonder straf. De fixatie op leedtoevoegende straffen in het strafrecht’, in R. Michel and F. Deruyck (eds.), Het strafrecht bedreven. Liber Amicorum Alain De Nauw (Die Keure 2011), pp. 129–156. Intersentia 13  Jacques Claessen According to the classic definition, as presented by Hart and Packer, punishment always contains the intentional addition of suffering, while measures like forced treatment in a clinic do not; they exclusively focus on prevention and reparation – at least officially. Although a measure can be experienced as a punishment by the person who undergoes it, this sanction is not meant to cause suffering. However, seen from a broader definition of punishment, measures can also be labelled as punishment, with the result that all criminal sanctions become forms of punishment. These broader definitions of punishment have been met with criticism. For example, the Belgian law scholar Lode Walgrave maintains that sanctions have to fulfil all of the following conditions in order to be identified as forms of punishment: (a) coercion (the sanction is imposed top-down by the government to the offender and the view or willingness of the offender does not play a role in the decision); (b) suffering (the imposition of the sanction is accompanied by the offender’s suffering; in other words, the sanction hurts); (c) intention (suffering is not a side effect of the sanction but is intentionally inflicted on the offender by means of the sanction); and (d) relation (there is a inextricable connection between the crime committed and the sanction imposed).8 In the remainder of this chapter, punishment will be defined in the classic way, namely as a reaction by the state to a breach of criminal law containing the intentional infliction of suffering. Is punishment in the sense of the intentional infliction of suffering a moral evil? This question is not far-fetched because almost every ethical system contains the basic norm ‘you shall harm no one’.9 Now that punishment is the intentional addition of suffering, it does seem as if punishment is a moral evil as well. The British philosopher Bentham wrote in his An Introduction to the Principles of Morals and Legislation (1789): ‘all punishment in itself is evil’.10 However, the question is whether such statements mean that punishment is a moral evil; after all, an evil is not necessarily a moral evil. Criminal law scholars deem punishment justified in some cases – for retribution and/or prevention – and for that reason, they do not view punishment as a moral evil in those cases.11 Nevertheless, since punishment is the intentional infliction of suffering, most of them argue that the use of criminal law should be last resort (ultimum remedium). If other modalities of law enforcement, such as civil or administrative law, may be sufficient, then the use of those modalities is preferred. 8 L. Walgrave, ‘Herstelrecht en de wet’, in B.A.M. van Stokkom (ed.), Straf en herstel. Ethische reflecties over sanctiedoeleinden (Boom Juridische uitgevers 2004), pp. 69–89. 9 H. Dupuis, ‘Over moraal’ (Nieuwezijds 1998); J.S. Mill, ‘Utilitarianism and On Liberty’ (Blackwell Publishing 2003); A. Schopenhauer, ‘The Basis of Morality’ (Dover Publications 2005). 10 J. Bentham, ‘An Introduction to the Principles of Morals and Legislation’ (The Athlone Press 1970). 11 Not everyone agrees on this, though. So-called restorative justice scholars do see punishment as a moral evil. See on restorative justice below section 5.5. 14 Intersentia  Chapter I. Theories of Punishment How can criminal law be distinguished from other modalities of law enforcement, such as civil and administrative law?12 In contrast to civil law, in which two citizens – i.e. the victim or plaintiff and the offender or defendant – are engaged in a horizontal legal relationship, criminal law is a form of public law, which means law enforcement whereby there is a vertical legal relationship between the government and the citizen (the offender). In other words, while civil law puts the citizen (the victim) in charge, criminal law puts the state in charge.13 Moreover, criminal law distinguishes itself from civil law by the sanction which is imposed for the violation of the law. While in criminal law, as said, the intentional infliction of suffering is central, civil law focuses on compensation and reparation. However, with the introduction of so-called ‘punitive damages’ in the Anglo-Saxon world, civil law has also obtained a retributive component. It is noteworthy to mention that every crime is a tort, but not every tort is a crime. But what is the distinction between a crime and a tort? According to the English jurist Blackstone, a crime is a public wrong while a tort is a private wrong. And while a private wrong only affects the victim, a public wrong also affects the public at large.14 The Scottish legal philosopher Duff adds to this definition that ‘[w]e should interpret a public wrong not as a wrong that injures the public, but as one that properly concerns the public, i.e. the polity as a whole’.15 However, Blackstone’s distinction is too simplistic, since, as said, some torts are also crimes. Some torts seem to be wrongs in that they affect not only the victim but also the public at large, and therefore these torts seem to be in a way public wrongs – with an additional but not solely private aspect. Administrative law is, like criminal law, a form of public law; both forms of law enforcement concern a legal relationship between government and citizen. However, administrative measures such as ‘administrative coercion’ and ‘administrative performance bond’ are primarily orientated towards reparation and prevention. If those sanctions lead to suffering, this suffering is not intended. With the introduction of the so-called administrative fine, administrative law has gained a retributive component as well. This has led to the existence of what is called ‘administrative criminal law’: punishment by means of administrative fines, in order to relieve the classic criminal law system. The distinction between criminal law and administrative law has been blurred since the introduction of 12 J. Hage and B. Akkermans, ‘Introduction to Law’ (Springer International Publishing 2014), pp. 121–123. 13 R.A. Duff and S. Marshall, ‘Criminalization and Sharing Wrongs’ Canadian Journal of Law and Jurisprudence (1998), p. 15; R.A. Duff and S. Marshall, ‘Public and Private Wrongs’, in J. Chalmers et al. (eds.), Essays in Criminal Law in Honour of Sir Gerald Gordon (Edinburgh University Press 2010), pp. 70–85. 14 G. Fletcher, ‘Domination in Wrongdoing’ Boston University Law Review (1996), p. 347; W. Blackstone, ‘Commentaries on the Laws of England, Book 4’ (Clarendon Press), pp. 1765– 1769. 15 R.A. Duff, ‘Answering for Crime’ (Hart Publishing 2007), p. 141. Intersentia 15  Jacques Claessen the administrative fine. The ECtHR considers administrative fines to be a form of punishment.16 3. THE INFLUENCE OF THE ENLIGHTENMENT ON THEORIES OF PUNISHMENT Due to its inherent violent character, punishment requires a solid legitimisation. Various theories have been developed for this specific purpose. Generally, they are divided into retributive and utilitarian theories of punishment. Mixed or hybrid theories, which strive for a combination of both, also exist. Before addressing the various types of theories of punishment, this paragraph will frame them in the context of the Enlightened criminal law philosophy, as these theories were ‘rediscovered’ during the Enlightenment.17 3.1. PHILOSOPHY OF CR IMINAL LAW DUR ING THE ENLIGHTENMENT The Enlightenment can be described as a movement that – by using the reasonable abilities of mankind – has thoroughly changed politics, science, morality, religion and law in the Western world. In part, it is a continuation of the philosophy of classical antiquity and the Renaissance. The Enlightenment originated in the 17th century in England and Scotland, reached its peak in the 18th century in France and experienced its declining years at the start of the 19th century in Germany.18 The view of the Enlightenment on man and his relationship with the State forms the basis of many theoretical foundations of our current criminal law. Enlightenment (legal) philosophers, such as the Italian Beccaria and the Frenchman Montesquieu, realised that criminal law should not only be surrounded with more procedural safeguards for the (suspected) citizen than was the case during the Ancien Régime (legal protection), but also that it should be more efficient in realising certain goals of criminal politics, including the repression and prevention of crime (so-called instrumentality).19 Enlightenment criminal law philosophy can be understood as a reaction to the theory and 16 See: Öztürk v Germany, Appl. No. 8544/79, 21 February 1984. 17 Reinvented, considering that philosophers like Plato and Aristotle during the classical antiquity already thought about the justification of punishments. 18 A.G. Bosch, ‘De ontwikkeling van het strafrecht in Nederland van 1795 tot heden’ (AAe Libri 2001), p. 49. 19 R. Foqué, and A.C. ’t Hart, ‘Instrumentaliteit en rechtsbescherming. Grondslagen van een strafrechtelijke waardendiscussie’ (Gouda Quint/Kluwer 1990); S. Gutwirth, ‘Waarheidsaanspraken in recht en wetenschap’ (Maklu 1993); C. Beccaria, ‘On Crimes and 16 Intersentia  Chapter I. Theories of Punishment practice during the Ancien Régime. This applies to both the criminal law philosophy of continental retributionists like the Germans Kant and Hegel and of Anglo-Saxon utilitarians like Bentham and James and John Stuart Mill.20 Just as jurists before the Enlightenment realised that the intentional infliction of suffering demands justification, these legal scholars too realised that punishment requires a solid legitimisation, since punishment and the threat of it are a difficult subject from a moral perspective. One might consider the retributive philosophy as belonging more to the continental tradition, and the utilitarian philosophy as being primarily supported in Anglo-Saxon doctrine. However, although it is probably true that the retributive theory has fewer supporters amongst Anglo-Saxon legal scholars (Hart and Packer were preventionists as well),21 it cannot be argued that it is rejected by them all (the American legal philosopher Rawls (1921–2002), for instance, was a retributionist)22 or that the utilitarian theory is disparaged in the continental criminal law philosophy (known continental utilitarians are Spinoza, Beccaria, Von Feuerbach, Schopenhauer, Van Hamel, Prins and Von Liszt). In any case, both Enlightenment movements resisted the random, excessive and inefficient exercise of state power through criminal law that was typical of the Ancien Régime. Both retributive and utilitarian philosophers were supporters of criminal law as the ultimum remedium (subsidiarity), of punishments with moderation (proportionality), of clearly written criminal laws (legality), of a criminal law focusing on the act instead of the intention (thoughts alone cannot lead to punishment), and of retrospective reactions to crimes.23 3.2. ENLIGHTENMENT VIEWS ON MANKIND AND THE WOR LD How did the Enlightenment lead to two different theories of punishment, namely retributive and utilitarian theories, despite the fact that their ‘inventors’ expressly stated that they set out to work rationally? It seems as if Kant, in his criminal law philosophy, applied a different image of mankind and the world than Bentham did. This observation is very important, considering that theories Punishments and Other Writings’ (Cambridge University Press 1995); Montesquieu, ‘The Spirit of the Laws’ (Cambridge University Press 1989). 20 I. Kant, ‘Die Metaphysik der Sitten’ (Suhrkamp 1979); G.W.F. Hegel, ‘Grundlinien der Philosophie des Rechts oder Naturrecht und Staatswissenschaft im Grundrisse’ (Ullstein 1972); J. Bentham, ‘An Introduction to the Principles of Morals and Legislation’ (The Athlone Press 1970); J.S. Mill, ‘Utilitarianism and On Liberty’ (Blackwell Publishing 2003). 21 H.L.A. Hart, ‘Prolegomenon to the Principles of Punishment’, in H.L.A. Hart, Punishment and Responsibility. Essays in the Philosophy of Law (Clarendon Press Oxford 1968); H.L. Packer, ‘The Limits of the Criminal Sanction’ (Stanford University Press 1968). 22 J. Rawls, ‘A Theory of Justice’ (Harvard University Press 2005). 23 C. Kelk, ‘Studieboek materieel strafrecht’ (Kluwer 2013), pp. 21–22. Intersentia 17  Jacques Claessen of punishment are imbedded in certain worldviews and views on man.24 While Kant assumed the existence of an undetermined, moral reality ‘above’ the sensory perceptible reality, Bentham only accepted the existence of the empirical reality that is utterly causally determined, including mankind. Bentham thought that man continuously strives for happiness/pleasure, while trying to avoid suffering/pain. On this factual information he then based his utilitarian morality (the greatest happiness for the greatest number of people) and his utilitarian theory of punishment (to ensure the greatest happiness for the greatest number, punishment is sometimes required). According to Kant, man, to the extent he is part of the undetermined, moral reality, has free will. And as a being with free will, he should be held responsible for the crimes of which he is guilty. Kant’s vision of man and world offers space for freedom of will, culpability and responsibility and hence consequently retribution; Bentham’s does not. Why has the Enlightenment led to two different theories of punishment? The answer may be rooted in these two distinct views on man and the world. But how did the Enlightenment lead to these two different visions? It can be concluded that an important paradox regarding mankind is inherent in the Enlightenment doctrine: on the one hand, this doctrine elevates mankind to ‘the lord of creation’; on the other hand, it reduces mankind to ‘a creature that reacts quasi mechanically to external stimuli’ and thus does not differ substantially from the rest of nature.25 In other words, in the Enlightenment philosophy a tension exists between the idea of man as a responsible and free-willed demi- god (spirit) and the idea that man is an utterly causally determined, manipulable and controllable machine (body). Considering that various Enlightenment philosophers supported various images of men, there is in fact no one true Enlightenment image of mankind. 3.3. THE ENLIGHTENMENT AS A DIALECTIC PROCESS The fact that different Enlightenment philosophers had different visions of man, the world and criminal law is not that strange. This belongs to the nature of the Enlightenment as a dialectic movement.26 This means that in the philosophy of the Enlightenment there is a permanent tension between various ideas.27 The French philosopher Foucault explained that the Enlightenment has two sides that are inextricably linked, similar to the two faces of the Roman God Janus: one side is characterised by freedom, practical reason and man as subject (spirit); the other side is characterised by discipline, instrumental reason and man as 24 J. Claessen, ‘Misdaad, straf en herstel. Een herbezinning op het strafrecht en een aanzet tot een op herstel georiënteerd misdaadrecht’ (WLP 2011), pp. 299–300. 25 A. Kinneging, ‘Geografie van goed en kwaad. Filosofische essays’ (Spectrum 2005), pp. 465–466. 26 L. Abicht, ‘De Verlichting vandaag’ (Houtekiet 2007), pp. 50–52 and 127. 27 L. Abicht, ‘De Verlichting vandaag’ (Houtekiet 2007), p. 119. 18 Intersentia  Chapter I. Theories of Punishment object (body).28 These two ‘components’ of the Enlightenment philosophy are in a tense relationship with each other and are intertwined in a dialectic process of thesis and antithesis.29 In the Enlightenment criminal law doctrine, we can recognise the above-mentioned dialectic in the reinvention of two different criminal law theories that have both influenced the criminal law system. While freedom, practical reason and man as subject are central in the retributive theory, discipline, instrumental reason and man as object manifest themselves in the utilitarian theory. 4. DIFFER ENT THEORIES OF PUNISHMENT As already stated, since the Enlightenment various theories have been reformulated regarding the justification of punishment. These theories are generally subdivided into retributive, utilitarian or consequentialist, and mixed or hybrid theories. This section will first discuss the retributive theories, then the utilitarian or consequentialist theories, and finally the mixed or hybrid theories. The theories will be discussed by means of the following three questions: (1) Who should be punished? (2) Why should someone be punished? (3) How severely should someone be punished?30 4.1. R ETR IBUTIVE THEOR IES OF PUNISHMENT 4.1.1. Who should be punished? According to the worldview that is central in the retributive theories, man is in principle a reasonable individual and should be considered to have free will and to be responsible for his conduct. Retributivists emphasise the inextricable coherence between punishment and guilt in the sense of culpability or blameworthiness. Only when a crime has been freely committed can it be repaid with punishment. If this is not the case, it should remain unrequited, because there is no culpability. Punishment without guilt is therefore a contradiction. Within retributive theories, it is nevertheless not truly the offender who is 28 M. Foucault, ‘Discipline, toezicht en straf. De geboorte van de gevangenis’ (Historische uitgeverij 2007), pp. 203 and 236. Practical reason answers the question of how to act in a good way. Instrumental reason answers the question of how to act to achieve a certain goal. 29 R. Foqué and A.C. ’t Hart, ‘Instrumentaliteit en rechtsbescherming. Grondslagen van een strafrechtelijke waardendiscussie’ (Gouda Quint/Kluwer 1990), p. 323. 30 H.L.A. Hart, ‘Prolegomenon to the Principles of Punishment’, in H.L.A. Hart, Punishment and Responsibility. Essays in the Philosophy of Law (Clarendon Press 1968), p. 3. Intersentia 19  Jacques Claessen central, but rather his crime. After all, as mankind has free will, only the wrongful and blameworthy act should be redressed through punishment, taking into consideration that the offender can act differently in the future in similar situations. If there is no culpability because there is no free will, there is however room for the application of measures like security and treatment regulations. 4.1.2. Why should one be punished? According to retributive theories, someone should be punished because a crime has been committed (quia peccatum). The focus is on the past. Retributive theories are also called absolute theories, as punishment should be imposed regardless of the goals/effects that can be pursued in terms of prevention. Still, retributive theories are not as absolute as is often claimed. The punishment is after all deserved in order to ‘settle the score’. Although the punishment finds its rationale with the crime that has been committed in the past, it is aimed towards settling the score that originated at that point – a goal that will be realised in the future. Retributive theories are thus not exclusively aimed towards the past. In this context, it should be noted that there is no such thing as the ‘one and only’ theory of retribution. The most common answers that retributive philosophers give to the question why justice demands that crimes be punished are: (a) punishment is intrinsically good because it is purifying; (b) punishment restores the status quo ante; (c) punishment restores the balance between benefits and burdens; (d) punishment satisfies feelings of vengeance; and (e) punishment expresses moral disapproval.31 4.1.3. How severely should one be punished? The punishment that the offender deserves in a specific case is, according to retributivists, dependent on the seriousness of the criminal act that has been committed by the offender and the culpability that can be attributed to him for it. The punishment should be proportional to the seriousness of the offence and the culpability of the offender. Relating the punishment to the magnitude of the injustice and the culpability constitutes the backbone of retribution. Sometimes the emphasis lies on the seriousness of the offence, sometimes on the measure of guilt. However, when the relationship between (the magnitude of) the punishment, (the seriousness of) the crime and (the extent of) the culpability is neglected, the punishment becomes unjust. The question is also whether repayment must take place according to the seriousness of the crime and the extent of guilt. In this context, one should distinguish between positive and negative retributive theories. While 31 J. Claessen, ‘Misdaad, straf en herstel. Een herbezinning op het strafrecht en een aanzet tot een op herstel georiënteerd misdaadrecht’ (WLP 2011), pp. 156–166. 20 Intersentia  Chapter I. Theories of Punishment positive theories of retribution argue that a crime should be repaid in full to the seriousness of the crime and to the extent of guilt, negative theories of retribution state that a crime can be repaid fully but that this is not necessary. The answer to whether guilt can remain unrequited depends on the intended goals of punishment in terms of prevention. Negative retributive theories thus form a combination of retributive and utilitarian philosophies of punishment; in fact, they are mixed or hybrid theories. 4.1.4. Possible criticism of retributive theories of punishment Criticism of retributive theories is largely connected to the question of why punishment should be inflicted in the first place. Several answers have been formulated. One possible answer is that punishing offenders is intrinsically good. However, according to most people, punishment is a deserved or necessary evil. The premise that punishment is intrinsically good seems to be an unverifiable dogma. Furthermore, in contemporary practice, punishment rarely has a purifying effect on offenders and society is seldom willing to reintegrate them after their punishment. A second possible answer is that through punishment the crime is undone, meaning that the original situation (i.e. the status quo ante) has been restored. However, it can be argued that the original situation cannot be restored: what happened in the past cannot be undone as if it never happened. The past always leaves ineradicable traces – at the very least memories. Besides, when the undoing of something is the goal of punishment, the result is not that the original damage is undone, but that new damage is inflicted. One wrong cannot be erased by another wrong: ‘an eye for an eye makes the whole world blind’. A third response is that punishment leads to the recovery of the balance between gains and burdens in society, which was disturbed by the crime. It is thus assumed that offenders, by committing a crime, enjoy an unjustified advantage. This answer cannot escape criticism either. For instance, not every crime necessarily brings (exclusively) advantage to the offender; think of offenders who remain in the attempt or preparation phase. Additionally, most individuals do not experience law-abiding behaviour as a burden. Furthermore, certain crimes are better described in terms of disadvantage for the victim than in terms of advantage for the offender. After all, it is unclear why the balance between gain and burdens should be recovered by means of punishment; why not through damages? A fourth answer is that punishment satisfies the feelings of revenge created by the crime; punishment results in satisfaction of victims and community. However, just from the fact that most people harbour feelings of revenge towards offenders one cannot simply deduce the moral norm that these feelings should be satisfied through punishment. At the same time, several (legal) philosophers argue that Intersentia 21  Jacques Claessen the need for revenge embodies something of the need for justice. The need for revenge would then be an expression of the moral intuition that offenders should be punished, that they deserve suffering. The question, however, is whether the moral intuition that an offender is supposed to (symbolically) make amends – in other words, that he should restore a balance – is not in fact obscured by feelings of revenge. Revenge, in any case, seems to be contrary to the basic moral intuition that you shall not do harm to others. What is more, do avengers through revenge not degrade themselves to the same level as the offenders? A final response is that, by punishment, the crime is denounced as morally reprehensible behaviour. Legal scholars who believe in an intrinsic reprobationism deem punishment to be completely legitimised on the grounds of its expressive and communicative function. The question is why the moral rejection of crime must go hand in hand with punishment – in addition to the suffering that the offender experiences through the moral reprimand itself. Punishment is the ultimum remedium and the moral rejection of crime should thus take place as much as possible within and by the community and not through criminal law. Furthermore, it remains to be seen whether moral rejection of crime by means of punishment results in moral improvement of offenders. 4.2. UTILITAR IAN OR CONSEQUENTIALIST THEOR IES OF PUNISHMENT 4.2.1. Who should be punished? According to the dominant worldview in utilitarian theories, man can be compared to a machine, and can therefore be influenced by biological, psychological and social factors. Utilitarian theories are fully compatible with the theory of causal determinism, i.e. the denial of the traditional libertarian free will.32 Unlike in retributive theories, culpability does not play any role for utilitarian thinkers. For them, causal determinism is not a hindrance to punishment. In utilitarian philosophy, it is not about whether the offender could have acted differently from what he did in the past, but whether he will act differently in the future if he is punished. Only guilt in the sense of ‘having committed the crime’ plays any role. In addition, it is not so much the act as the person of the offender that is the focal point within utilitarian theories. The idea behind this is that knowledge of the person of the offender brings with it his manipulability and controllability; the connection between offender and act is much stricter than in the retributive theory. By revealing the biological, psychological and social causes of crime, it can be controlled. 32 J. Greene and J. Cohen, ‘For the law, neuroscience changes nothing and everything’, in S. Zeki and O. Goodenough (eds.), Law and the Brain (Oxford University Press 2006), pp. 207–226. 22 Intersentia  Chapter I. Theories of Punishment 4.2.2. Why should one be punished? According to consequentialist theories, also called relative theories of punishment, punishment is required, so that future crimes may be prevented (ne peccetur). In utilitarian theories, the connection between crime and punishment is deemed to be dependent on the goal that is to be achieved with the punishment. Although crime and punishment belong together like action and reaction in utilitarian theories as well (here, punishment also finds its excuse in an already committed crime), punishment is only viewed from the perspective of the prevention of future crimes. If the realisation of this goal fails to emerge, punishment should not be used. In general, the goal to be achieved is described in abstracto as prevention of crime. The question in this context appears to be: how does punishment work in concreto as far as the stated prevention is concerned? There are different answers to this question. It can concern: (a) incapacitation; (b) deterrence; (c) social re-integration and rehabilitation; (d) strengthening of norms; and/ or (e) prevention of taking justice into one’s own hands by channelled state vengeance.33 In deterrence and norm enforcement, a distinction should be made between special and general prevention. While special prevention concerns the actual offender, general prevention concerns potential offenders. Not only is imposing punishment deemed to have a preventive effect on potential offenders, but the threat of punishment is also supposed to have a similar effect. 4.2.3. How severely should one be punished? Unlike retributive theories, crime in consequentialist theories is not viewed as an immoral act that should be requited based on the seriousness of the act and the extent of culpability, but as a social risk that should be controlled by means of punishment.34 Freedom of will makes way for a scientifically specified degree of danger that can or cannot be treated.35 Punishment receives the characteristic of a measure to protect society. This does not mean that punishment as prevention is necessarily less drastic than punishment as retribution. After all, the risk the offender poses to society is now the determinant factor for establishing the severity of the punishment – in combination with the seriousness of the crime. However, utilitarian theories also include the principles of subsidiarity and proportionality. Punishment is, after all, also an evil because it intentionally inflicts suffering. Punishment is only justified when: (a) it actually prevents future crimes; (b) no instrument of lesser evil exists that has at least the same preventive effect 33 J. Claessen, ‘Misdaad, straf en herstel. Een herbezinning op het strafrecht en een aanzet tot een op herstel georiënteerd misdaadrecht’ (WLP 2011), pp. 190–193. 34 R. Foqué and A.C. ’t Hart, ‘Instrumentaliteit en rechtsbescherming. Grondslagen van een strafrechtelijke waardendiscussie’ (Gouda Quint/Kluwer 1990), pp. 16–17. 35 S. Gutwirth, ‘Waarheidsaanspraken in recht en wetenschap’ (Maklu 1993), p. 253. Intersentia 23  Jacques Claessen (subsidiarity); and (c) it does not inflict more damage on the offender and his/her surroundings than would be inflicted on the victim and the community if the crime were to remain unpunished (proportionality). If one of these conditions is not met, punishment should not be imposed. Checking these criteria is an empirical event. 4.2.4. Possible criticism of utilitarian theories of punishment One of the weaknesses of consequentialist theories is that the realisation of the goal of prevention can hardly be measured in practice. What is more, while the adverse effects of criminal law are already very well known (exclusion, stigmatisation, criminogenic effects – prison as ‘a high school for criminals’, etc.), the realisation of prevention by means of (the threat of) punishment is disputed to this day.36 The recidivism numbers are clear. Research has shown that approximately 75% of all former detainees become recidivist within six years after release. For community service, this percentage is approximately 50%.37 A more fundamental objection to pure utilitarianism is that it assumes that man is for all forms of crime a homo economicus who will invariably choose the behaviour that will give him the most advantages and least disadvantages. While a cost–benefit analysis will probably play some part in economic and environmental crimes, such an analysis plays hardly any role in offences that are committed not as a result of such an evaluation but as a result of emotions, addictions or mental disorders (violent and sexual crimes, for example). A more major objection to general prevention seems to be that actual offenders could be treated as a mere means to a certain end: the prevention of crime committed by potential offenders. According to retributive philosophers like Kant, this acts contrary to human dignity; people should always be treated (partially) as a goal in themselves. An objection to deterrence is that actual and potential offenders are treated as animals that can be trained by means of (the threat of) punishment, which also leads to dehumanisation. Finally, although almost all utilitarian philosophers argue that only people who have committed a crime can be punished, it is unclear why consequentialist theories would negate punishing innocent people. If punishment can prevent future criminality and if punishment of innocents is a suitable means to achieve that goal, then there is nothing in utilitarian theories themselves that can indicate why punishing innocent people would not be justified – especially not if citizens are unaware of this practice. Of course, utilitarians are aware of that risk and try to balance this with their own theories of justice. Nevertheless, it often seems that they have to use elements from retributive theories in order to do so. 36 M. Tonry, ‘Onderzoek naar afschrikking. De noodzaak om klein te denken als we iets nieuws willen leren’ Justitiële Verkenningen (2008), pp. 98–102 and 109. 37 A.J.E. Dirkzwager, W. Lamet, P. Nieuwbeerta, A.A.J. Blokland and P.H. van der Laan, ‘Na detentie: de gevolgen van rechtspraak’ Rechtstreeks (2009), pp. 11–12. 24 Intersentia  Chapter I. Theories of Punishment 4.3. HYBR ID OR MIX ED THEOR IES OF PUNISHMENT Due to the many objections that can be raised to either one of the theories of punishment discussed above, more and more legal scholars suggest that neither pure retributive theories nor pure utilitarian theories can provide a proper justification for punishment. This has led to the origin of mixed theories that try to combine the fundamental principles of both theories. One could claim that the tension between retributive and utilitarian theories is limited in hybrid theories through reconciliation or synthesis. 4.3.1. Two types of mixed theories There are two types of hybrid theories depending on whether retribution or prevention forms the foundation of punishment. In the first type, retribution constitutes the general justification for punishment. However, the demands of retribution are mitigated through utilitarian considerations in the sense that in order to realise certain goals of punishment there should be less punishment than is demanded on the grounds of retribution. Furthermore, it is possible to decide not to inflict punishment at all on the grounds of the aforementioned utilitarian considerations. Essentially, the first type of hybrid theories concerns so-called negative theories of retribution.38 In the second type, prevention forms the general justification for punishment but excessive punishments are prevented by using criteria that are central to the framework of retribution, meaning: (a) only someone who has been found guilty of committing a crime can be punished, and (b) punishment cannot be more severe than is proportional to the seriousness of the crime and the culpability of the offender. In principle, both kinds of mixed theories will in practice lead to the same outcome, even though they are theoretically each other’s mirror image. The first hybrid theory dominates in the continental doctrine, including the Netherlands; the second type in the Anglo-Saxon world.39 4.3.2. Possible criticism of mixed theories Despite their attractiveness due to their concessions for the shortcomings that are typical of retributive and utilitarian theories, even mixed theories are not entirely unproblematic. Precisely because the ambition is to unite retributive and utilitarian ideas, problems may arise when it seems these are in conflict. Not all hybrid theories necessarily offer a solid justification of punishment. A mixed 38 The negative theories of retribution were discussed in section 4.1.3. 39 J.W. De Keijser, ‘Doelen van straf. Morele theorieën als grondslag voor een legitieme strafrechtspleging’, in B.A.M. van Stokkom (ed.), Straf en herstel. Ethische reflecties over sanctiedoeleinden (Boom Juridische uitgevers 2004), p. 55. Intersentia 25  Jacques Claessen theory can be ‘a shifting patchwork of compromises and arbitrary decisions’.40 There are even scholars who are of the opinion that the existence of so many different theories of punishment shows just how hard and perhaps impossible it is to provide solid grounds for punishment. For example, the question remains as to whether the retributive view of man can be reconciled with the image of man on which consequentialist theories rest. According to the hybrid theory of the first type, man, in principle, has free will but can be impeded in exercising his freedom by biological, psychological and social factors. Insofar as he has committed his crime in freedom he can be punished; insofar as he has committed his crime under the influence of above- mentioned factors he can be treated. The question is how these parts can be precisely balanced in practice. For some legal scholars, mixed theories are in any case no less controversial than pure retributive and pure utilitarian theories, considering that punishment is and will be intentional addition of suffering, no matter what simple or complex justification is given to it.41 5. GOALS OF PUNISHMENT IN CRIMINAL POLITICS: WOR LD WAR II ONWAR DS After and under the influence of the horrors that had occurred during World War II a ‘universalistic image of mankind’ arose that matches Article 1 of the Universal Declaration of Human Rights (1948).42 This provision reads: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood’. More than one and a half century after the French Revolution, the motto of the Enlightenment – liberté, égalité et fraternité – received universal recognition. 5.1. PENAL WELFAR ISM: FOCUS ON R ESOCIALISATION AND R E-INTEGR ATION OF OFFENDERS (1945–1975) The inherent dignity of every human being – often based, according to Kant, on the fact that man (in contrast to animals) is a reasonable and moral being – was 40 J.W. De Keijser, ‘Doelen van straf. Morele theorieën als grondslag voor een legitieme strafrechtspleging’, in B.A.M. van Stokkom (ed.), Straf en herstel. Ethische reflecties over sanctiedoeleinden (Boom Juridische uitgevers 2004), p. 57. 41 J. Claessen, ‘Misdaad, straf en herstel. Een herbezinning op het strafrecht en een aanzet tot een op herstel georiënteerd misdaadrecht’ (WLP 2011), p. 202. See also: section 5.5 on restorative justice. 42 C. Kelk, ‘Verschuivende mensbeelden van gedetineerden’, in J. Claessen and D. de Vocht (eds.), Humaan strafwerk. Liber Amicorum Gerard de Jonge (WLP 2012), pp. 185–186. 26 Intersentia  Chapter I. Theories of Punishment not only associated with the allocation of equal rights (of freedom); it also called for an atmosphere of respect and solidarity. Besides, this moral appeal did not solely emanate from the idea that everyone is part of the reasonable and moral ‘family of man’; it was equally nurtured by the insight of the French philosopher Rousseau that man is originally neither king nor prominent nor rich, that all people are born naked and poor, that we are all subject to the needs of life, grief, all kinds of sorrow, and that in the end we are all doomed to die.43 This insight makes people sensitive to pain and cruelty – and also, through empathy, to the suffering of others. Regardless of their source, in the post-War period respect and solidarity were shown towards the criminal fellow man who was seen as ‘the socially and psychologically weaker man’.44 Within the framework of prevention, re-socialisation and re-integration were central in this era: like society itself, ‘the weaker man’ was considered to be manipulable and capable of moral improvement. By re-socialising delinquents, criminality could at the same time be reduced. Under the influence of the French legal scholar Ancel’s so-called défense sociale nouvelle, almost everywhere in Western Europe the emphasis was on the amelioration and the inclusion of offenders. Underlying causes of criminality, such as social inequality, were also addressed. Retribution was in this period all about the expiation of guilt (read: punishment is intrinsically good because it restores the balance); mankind was deemed to be free of will and – for that reason – morally and legally responsible. 5.2. ‘NOTHING WOR KS’ AND THE R E-INVENTION OF R ETR IBUTION AND THE PR ISON (1975–1985) Halfway through the 1970s the concept of re-socialisation started to wane, due to rising crime and recidivism rates. The idea of social engineering of man was severely hampered. Through the decline of the welfare state, in which the thought of penal welfarism is deeply ingrained, slowly but surely – also under influence of the work of the American criminologist Martinson45 – the notion that nothing works emerged, which led to renewed attention for retribution as just deserts (read: punishment satisfies feelings of vengeance). Subsequently, this renewed attention to retribution led to an increase in imprisonment. The prison was, in a certain sense, ‘rediscovered’. In contrast to the forgoing decennia, in which resocialisation and re-integration were central even within the prison context, the focus now shifted to the prevention of harm caused by detention itself. It 43 J-J. Rousseau, ‘Émile ou De l’éducation’ (Garnier 1961), p. 260. 44 C. Kelk, ‘Verschuivende mensbeelden van gedetineerden’, in J. Claessen and D. de Vocht (eds.), Humaan strafwerk. Liber Amicorum Gerard de Jonge (WLP 2012), pp. 187–188. 45 R. Martinson, ‘What works? Questions and answers about prison reform’ The Public Interest (1974), pp. 22–54. Intersentia 27  Jacques Claessen became clear that prison was not able to resocialise people and to prevent their reoffending. On the contrary, prison turned out to have a criminogenic effect on detainees. However, because there was no alternative to prison, imprisonment kept being imposed on perpetrators for the sake of retribution. Besides, it was not Martinson’s intention to give rise to the re-invention of retribution and the prison. He presumed and hoped that his work would lead to decriminalisation and depenalisation and to the use of other forms of law enforcement. Unfortunately, his work had the opposite effect, at least in the Anglo-Saxon world and in large parts of Europe – probably mainly because neoliberalism was gaining influence in politics at that point in time. Only Scandinavia was the exception. Here, politicians did opt for decriminalisation and depenalisation because of the malfunctioning of criminal law in terms of reducing reoffending. In a way, Scandinavia has preserved their welfare state – including the notion of penal welfarism. Remarkably, reoffending rates are much lower there than elsewhere.46 5.3. CR IME FIGHTING, R ISK MANAGEMENT AND ‘NEGATIVE’ PR EVENTION (1985–2001) Despite of the idea that ‘nothing works’, citizens’ expectations of their government regarding the fight against crime remained demanding and the government kept trying to meet those expectations – especially by using criminal law. In the mid-1980s, politicians who feared that citizens would lose their faith in the government came up with the plan of turning criminal law into a ‘company’ or ‘factory’, so that its efficiency could be increased. The era of professionalisation, bureaucracy and management had most definitely begun in criminal law. The process of the instrumentalisation of criminal law, i.e. the process of regarding criminal law as a value-free tool in the hands of politicians in order to fight crime had clearly gained the upper hand.47 In criminal politics a movement began to dominate characterised by the objective of crime control, which can only be accomplished at the expense of legal safeguards.48 In this framework, offenders are increasingly stripped of their humanity and their rights by being perceived as irredeemable enemies of society.49 46 P. Kruize, ‘Blik naar het Noorden? Een kenschets van het justitiële beleid in Scandinavië’ Justitiële Verkenningen (2013), pp. 88–100. 47 J. Claessen, ‘Misdaad, straf en herstel. Een herbezinning op het strafrecht en een aanzet tot een op herstel georiënteerd misdaadrecht’ (WLP 2011), pp. 73–89. 48 D. Garland, ‘The Culture of Control. Crime and Social Order in Contemporary Society’ (Oxford University Press 2001); H.L. Packer, ‘The Limits of the Criminal Sanction’ (Stanford University Press 1968). 49 C. Kelk, ‘Verschuivende mensbeelden van gedetineerden’, in J. Claessen and D. de Vocht (eds.), Humaan strafwerk. Liber Amicorum Gerard de Jonge (WLP 2012), pp. 196–203. 28 Intersentia  Chapter I. Theories of Punishment In the so-called risk society,50 i.e. the successor of the welfare state, crimes are seen as risks that have to be managed by criminal law: ‘criminal law as risk management’.51 This means that the realisation of those risks has to be prevented as far as possible. Keeping in mind the notion that nothing works, ‘positive’ prevention through treatment and resocialisation programmes made room for ‘negative’ prevention through deterrence and incapacitation. Though the concept of just deserts was originally also meant as a correction to the absence of legal protection of offenders under the influence of preventionism, it soon became contaminated by the defeatist idea that nothing works. Simultaneously, the ‘just deserts’ of offenders notably increased under the influence of intensified feelings of revenge and reduced tolerance. Retribution in the sense of expiation of guilt made way for channelled revenge – to prevent someone taking the law in one’s own hand – and prevention in the sense of re-socialisation was repressed by notions of deterrence and incapacitation. In short, revenge, deterrence and incapacitation became the primary goals of punishment.52 Under this mixed theory in the risk society, prevention nevertheless prevails; one speaks of ‘preventive criminal law’. Retribution has been instrumentalised for the realisation of deterrence and incapacitation.53 In other words, repression is prevention. In the end, feelings not of anger but of fear dominate in the risk- society. The risk society turned out to be a culture of fear.54 5.4. CR IMINAL LAW AS A PR IMARY INSTRUMENT OF SECUR ITY POLITICS (2001–PR ESENT) Since the quite recent terrorist attacks in the United States, Spain and the United Kingdom, security has become the main and overarching goal of justice, and in the realisation of this goal criminal law is interpreted as the primum remedium, pre-eminently as an instrument of security politics.55 This has resulted, amongst other things, in an inflation of the criminalisation and penalisation of high-risk behaviour, especially at the early stage of preparation (such as conspiracy), in a significant decrease in procedural protection of suspects, and in the considerable 50 U. Beck, ‘Risk Society. Towards a New Modernity’ (Sage 2003). 51 Th. de Roos, ‘Strafrecht als risicomanagement’ (Universitaire Pers Leiden 2000); M. Moerings, ‘Straffen met het oog op veiligheid; een onderneming vol risico’s’ (Universitaire Pers Leiden 2003). 52 J.W. de Keijser, ‘Punishment and Purpose. From Moral Theory to Punishment in Action’ (Thela Thesis 2000), p. 184. 53 J. Claessen, ‘Misdaad, straf en herstel. Een herbezinning op het strafrecht en een aanzet tot een op herstel georiënteerd misdaadrecht’ (WLP 2011), p. 203. 54 B.A.M. van Stokkom, ‘Veiligheid zonder illusies. Angstmanagement en justitieel cynisme’ Filosofie & Praktijk (2006), pp. 36–46. 55 C. Kelk, ‘Studieboek materieel strafrecht’ (Kluwer 2013), p. 43. Intersentia 29  Jacques Claessen increase in the imposition and the duration of sanctions restricting and depriving liberty.56 Security, by preventing the realisation of risks, plays a prominent role in modern criminal law. This also follows from the fact that criminal law increasingly works with risk assessments. The estimated chance of recidivism for individual offenders forms an increasingly important starting point for sanctioning. What is also remarkable is that more and more empirical research is conducted on the incapacitation effect of sanctions restricting and depriving offenders of their freedom. The numbers tell us all we need to know. This has the outcome that criminal law is becoming more scientific and is being extended in an instrumentalistic direction, as a result of which the normative, power- critical or protectionist dimension, which is just as essential to criminal law as its instrumental dimension, is lost. Traditional Enlightenment principles like harm, subsidiarity, proportionality, guilt and legality are being increasingly undermined.57 The same applies to the resocialisation principle that has developed from being a universally applicable assignment to the government, through a choice to be assigned to the detainees that they will have to make themselves, to an assigned privilege to a select category of detainees.58 The theme of the somewhat more hopeful sounding what works-approach – with its focus on special prevention, enhancement of efficiency of criminal sanctions and selective use of expensive behavioural interventions and with its enthusiasm for best practices and evidence-based interventions – is ultimately the prevention of the realisation of (new) risks, whereby resocialisation is only a privilege for a select group, i.e. a group labelled by science as showing promise and motivation. The idea of the invariability and impenitence of offenders seems still to be the starting point, which plays into the hand of deterrence and incapacitation. The question is whether such a view of man and the accompanying policy are legitimate seen from a normative and scientific perspective. For example, empirical research demonstrates that recidivism rates after community service or electronic detention are lower than after imprisonment and that programmes based on the concept of resocialisation are more efficient in terms of reducing reoffending than sanctions that focus on deterrence.59 Thus, severe punishment 56 J. Claessen, ‘Misdaad, straf en herstel. Een herbezinning op het strafrecht en een aanzet tot een op herstel georiënteerd misdaadrecht’ (WLP 2011), pp. 56–73. 57 R. Foqué and A.C. ’t Hart, ‘Instrumentaliteit en rechtsbescherming. Grondslagen van een strafrechtelijke waardendiscussie’ (Gouda Quint/Kluwer 1990); S. Gutwirth, ‘Waarheidsaanspraken in recht en wetenschap’ (Maklu 1993); J. Keiler and D. Roef, ‘Introduction’, in J. Keiler and D. Roef (eds.) Comparative Concepts of Criminal Law (Intersentia 2016), p. 6. 58 J. Claessen, ‘Strafrecht en vertrouwen in de medemens – vijftig jaar later. Het gevangeniswezen tegen de achtergrond van de ideeën van Willem Pompe’ Strafblad (2014), pp. 229–242. 59 H. Wermink, A. Blokland, P. Nieuwbeerta and N. Tollenaar, ‘Recidive na werkstraffen en na gevangenisstraffen. Een gematchte vergelijking’ Tijdschrift voor Criminologie (2009), pp. 211–227; 30 Intersentia  Chapter I. Theories of Punishment and harsh treatment are not necessarily synonymous with smart sanctioning. Indeed, the opposite is true, as humane sanctioning can be more efficient in reducing reoffending than draconic punishment and treatment. Unfortunately, many European countries, including the Netherlands, are still mainly inspired by the United States and the United Kingdom and their neoliberal tough-on- crime politics and not, for example, by Scandinavia and its penal welfarism.60 5.5. THE R ETUR N OF THE VICTIM IN CR IMINAL LAW AND THE R EVIVAL OF R ESTOR ATIVE JUSTICE At the end of this section attention will be paid to two related current developments in criminal law: the return of the victim and the revival of restorative justice. To understand these developments we have to go back in time, since it was with the arrival of Napoleon Bonaparte that all forms of ‘private’ criminal law, i.e. what we now would call victim-offender mediation, group conferences and sentencing circles, were abolished in the Western world. The consequence of this was that the victims of crime were no longer stakeholders in criminal law. They were sent to the civil court to get compensation for the crime as a tort, while in public criminal law a public prosecutor and an independent and impartial judge appointed by the State had to prosecute and judge in the name of the community of which both victims and offenders were part. Since about 1800, victims of crime have only been able to participate in criminal proceedings as declarant or witness, although several European countries, e.g. Belgium and Germany, have incorporated a possibility of prosecution initiated or supported by the victim. Since the mid-1980s, victims have slowly but surely regained a position in criminal law, independently of their position in civil law. Since the Framework Decision on the status of the victim in criminal proceedings (2001/220/JBZ), the EU has obliged the Member States to incorporate several victims’ rights into criminal law, e.g. the right to information, the right to access to the criminal file, the right to make a victim impact statement, the right to a lawyer, the right to an interpreter and the right to receive compensation. Nonetheless, it appears that the improvement of the position of victims of crime in criminal proceedings is not only a consequence of the victim movement that stands for the emancipation of A. Blokland, H. Wermink, L. Robert and E. Maes, ‘Wederopsluiting na elektronische detentie en reguliere detentie in België’ Tijdschrift voor Criminologie (2015), pp. 31–58; B. Wartna, D. Alberda and S. Verweij, ‘Een meta-analyse van Nederlands recidiveonderzoek naar de effecten van strafrechtelijke interventies’ Tijdschrift voor Criminologie (2013), pp. 3–23. 60 R. van Swaaningen, ‘Waarom kijken wij eigenlijk naar Amerika?’ Justitiële Verkenningen (2013), pp. 37–51; M. Boone and R. van Swaaningen, ‘Dalende detentiecijfers in Nederland’, in J. Claessen and D. de Vocht (eds.), Humaan strafwerk. Liber Amicorum Gerard de Jonge (WLP 2012), pp. 51–71. Intersentia 31  Jacques Claessen victims but also of the above-mentioned hardening of criminal law. In support of this thesis one can point to populist politicians who nowadays plead for a criminal law practice based on and directed at revenge, deterrence and incapacitation in the name of ‘the victim’. The increased attention to the position of victims has led to measures that primarily meet – if we are to believe populist politicians – their call for retribution, deterrence and incapacitation, which is almost automatically at the expense of programmes based on re-socialisation and rehabilitation. Although empirical research shows that not all victims are (extremely) vengeful, that many victims do hope that their offenders amend their lives and stop committing offences in the future, and that some victims even show empathy with offenders, populist politicians want us to believe that victims long for ‘an eye for an eye’.61 On the other hand, the aforementioned attention to the position of victims of crime has also led to a revival of restorative justice, i.e. victim–offender mediation, group conferences and sentencing circles, in criminal law.62 This does not mean that all proponents of victims’ rights plead for the incorporation of restorative justice practices. On the contrary, as said, some politicians (mis)use ‘the victim’ not to civilise criminal justice but to realise an even more punitive criminal law practice; restorative justice would be too soft for the ‘vengeful victim’. Furthermore, not all victimologists are entirely positive about restorative justice. For example, it would ‘force’ victims to suppress their resentment and other negative sentiments and to forgive their offenders – in accordance with the Christian morality that considers wrath to be one of the seven cardinal sins.63 However, as mentioned, since the Framework Decision on the status of the victim in criminal proceedings (2001/220/JBZ), the European Union has obliged the Member States to incorporate restorative practices into and around criminal procedure as a right of the victim.64 Unfortunately, this victim-centred approach makes it easy to forget that restorative justice is meant not only for victims but also for perpetrators and the community and that all parties to a conflict have rights as well as obligations and responsibilities, including victims.65 But what is restorative justice exactly? Notwithstanding the fact that there are several currents within the restorative justice movement – from very minimalistic 61 A. Pemberton, ‘Too Readily Dismissed? A Victimological Perspective on Penal Populism’, in H. Nelen and J. Claessen (eds.), Beyond the Death Penalty. Reflections on Punishment (Intersentia 2012), pp. 105–119. 62 D.J. Cornwell, J. Blad and M. Wright (eds.), ‘Civilising Criminal Justice. An International Restorative Agenda for Penal Reform’ (Waterside Press 2013). 63 J.J.M. van Dijk, ‘The Mark of Abel. Reflections on the Social Labelling of Victims of Crime’, inaugural lecture, University of Tilburg (2 November 2006); J.J.M. van Dijk, ‘Free the Victim. A Critique of the Western Conception of Victimhood’ International Review of Victimology (2009) (16), pp. 1–33. 64 In 2012 this framework decision was replaced by the EU Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime. 65 B.A.M. van Stokkom, ‘A “Natural” Right to Revenge? Victim Impact Statements and Penal Populism’, in H. Nelen and J. Claessen (eds.), Beyond the Death Penalty. Reflections on Punishment (Intersentia 2012), pp. 121–138. 32 Intersentia  Chapter I. Theories of Punishment (restorative justice only as a supplement to criminal law if parties voluntarily agree) to very maximalistic (restorative justice as a replacement of criminal law even if parties do not voluntarily agree) – it can be argued that restorative justice implies a different way of doing justice after a crime is committed. As stated in section 2, most criminal law scholars see an inseparable connection between criminal law and punishment, while they define punishment as the intentional infliction of suffering on an offender. So-called restorative justice scholars see punishment not only as an evil but also as a moral evil, because they deem to be punishment contradictory to the Golden Rule that states that you should treat others the way you would want to be treated, which basically means that you cannot harm anyone – not even if they harm you.66 Said philosophers are in favour of replacing negative actions towards offenders (punishment) by positive reactions from offenders towards victims and community (restorative sanctions) – possibly complemented by measures focusing on treatment and providing security. In fact, retributivists and restorative justice scholars have something essential in common: both argue that crime causes a disbalance that has to be restored. However, they differ on ‘the currency’ which can restore the balance. For retributivists the means to this end is punishment; for restorative justice scholars this is restoration in the aforementioned way. Some legal scholars do state, however, that even sanctions that are solely aimed at restoration, security or treatment can also be labelled as punishment if they are imposed against the will of the offender.67 Others, including Walgrave,68 state that those sanctions cannot be labelled as punishment because they do not intend to harm the offender. Seen from my own perspective, sanctions can have a double violent character (a) when they consist of the intentional infliction of suffering (for retribution and/or prevention) and (b) when they are imposed against or irrespective of the will of the offender. If both conditions are met, this clearly is a case of punishment. Restorative sanctions, as well as security and treatment measures, can also have a singular violent character, namely when they are enforced. For that reason, these sanctions can be qualified as punishments as well. It would be quite difficult to argue, however, that sanctions that do not contain intentional addition of suffering and that – by means of counselling, encouragement or persuasion – are ‘voluntarily’ accepted by the offender have the character of punishment. Within restorative justice the focus lies on the voluntary acceptance of sanctions, by encouraging offenders to 66 J. Claessen, ‘Misdaad, straf en herstel. Een herbezinning op het strafrecht en een aanzet tot een op herstel georiënteerd misdaadrecht’ (WLP 2011), pp. 101–105. 67 R.A. Duff, ‘Restorative punishment and punitive restoration’, in L. Walgrave (ed.), Restorative Justice and the Law (Willan Publishing 2002), pp. 82–100; J. Blad, ‘Het sanctieconcept van het herstelrecht’ Sancties (2011), pp. 232–250; J. Claessen, ‘Pleidooi voor een ruimer strafbegrip of een strafrecht zonder straffixatie’ Tijdschrift voor Herstelrecht (2012), pp. 37–49. 68 See: section 2. Intersentia 33  Jacques Claessen take responsibility for what they have done and by encouraging them to repair (in a symbolical way) what they have broken – making use of victim-offender mediation, group conferences and sentencing circles. 6. CONCLUDING R EMARKS In this chapter, the concept of punishment is described as the intentional infliction of suffering. Although punishment seems to be an evil, according to retributionists and utilitarians it is a morally justifiable evil if a crime has been committed. According to restorative justice scholars, however, punishment is not only an evil but a moral evil as well. It was explained that the Enlightenment that underlies our current criminal law has – due to its paradoxical image of mankind and the world and its dialectic character –been the breeding ground for the reinvention of both retributive and utilitarian theories of punishment. These theories were subsequently discussed. The conclusion was that both theories of punishment can be criticised. Mixed theories, which bring about a synthesis between retributive and utilitarian theories, are not exempt from criticism either, as a number of the possible criticisms of retributive and utilitarian theories also apply to hybrid theories. Furthermore, retributive and utilitarian theories, principles and accompanying images of mankind and the world can be conflicting. All in all, it seems as if punishment cannot be supplied with a definitive foundation. Finally, mention was made or the current practice of criminal law, which mainly aims at revenge, deterrence and incapacitation, while in the risk society preventionism prevails. The current practice of criminal law reveals that the tension between various ideas that, according to the Enlightenment philosophy, should ideally be present in criminal law seems to have disappeared and that the scale has currently tipped in favour of instrumentality, efficiency, pragmatism, quantity, control, prevention, causal determinism and man as object, and at the same time away from legal protection, justice, moralism, quality, emancipation, retribution, free will and man as subject. Even though the current criminal law system has its origin in the Enlightenment, criminal law is not currently practiced in accordance with Enlightenment ideas, now that the tension and search for balance between sword (instrumentality) and shield (legal protection) have disappeared. We began our journey with the statement that, although for most people punishing offenders is logical, just and self-evident, it is nevertheless not as obvious in certain cases. On the basis of what is said in this chapter we can also conclude our journey with the same statement. Criminal law and punishment need to be constantly scrutinised – especially in times in which politicians think that every problem in society must be resolved with it. 34 Intersentia  CHAPTER III THE PRINCIPLE OF LEGALITY Christina Peristeridou 1. INTRODUCTION The principle of legality is one of the cornerstone principles of criminal law and it is usually one of the first topics discussed in handbooks analysing concepts of criminal liability. This is because before we start discussing whether Markus was a perpetrator or simply a participant to the theft, or whether Kate was responsible for murdering her brother even though she was drunk, one has to check whether the behaviour is prohibited by criminal law. The principle of legality deals precisely with the question of whether or not and under which preconditions behaviour is prohibited. Although many acts can be harmful, immoral, or socially reprehensible, not all of them are prohibited by criminal law. The principle of legality requires that an act can be prohibited by criminal law only when there is a provision that punishes this behaviour. Frequently, this principle is quoted with the maxim ‘nullum crimen nulla poena sine lege’ or, ‘there is no crime without law’. It is neither the judge, nor the prosecutor, nor any code of ethics, but only the law that can attach criminal character to behaviour. This principle is based on the thesis that the immorality or harmfulness of an action are not enough to justify a state response in the form of criminal prosecution. In this chapter we shall delve deeper into the concept of the legality principle starting with how this principle is concretised. What makes a norm a ‘criminal law’? Furthermore, we will address the question of why this concept is important and on which rationales it is based. In addition, this principle shall be approached in a comparative manner by examining how it is applied within the different legal systems. Finally, the current challenges of the legality principle shall be presented by looking at two judgments where the legality principle is applied. Due to the rapidly changing society and the challenges that this creates in criminal law, the principle of legality has not been applied as it was originally conceived. Some of its requirements cannot be applied strictly, whilst there are frequently ‘hard cases’ where the interpretation of the scope of criminal liability is rather challenging. Intersentia 85  Christina Peristeridou 2. THE FOUR ASPECTS OF THE LEGALITY PRINCIPLE The principle of legality generates four aspects, as envisaged by Feuerbach.1 Those aspects are the expressions of the same principle, as this is applied to the creation, application and interpretation of criminal liability. This principle applies to both the criminal liability and the punishment, thus prohibiting not only the criminalisation but also the imposition of a criminal sanction without a criminal norm. It requires that criminal liability and punishment be based on a pre-existing, written, precise parliamentary criminal norm, which should not be applied extensively by courts. 2.1. LEX SCR IPTA The first aspect is addressed to the courts and it obliges judges to base criminal liability only on written statutes as opposed to customary laws; this is often referred to as lex scripta. Customary, religious or moral rules of a community must not form the basis for criminal liability.2 This aspect prescribes that criminal liability should be written. It also requires that it should be based only on a parliamentary criminal statute. The latter requirement is sometimes referred to as lex parliamentaria.3 The executive and the courts are not allowed to prescribe criminal liability norms. On some occasions, certain executive bodies may be able to prescribe criminal norms, albeit only when there is a proper delegation of such powers issued by the parliament and under strict limitations prescribed by constitutional rules.4 The legality principle therefore gives a very particular definition as to what constitutes a criminal law: a criminal law can be only a written parliamentary statute, whereas case law or unwritten customary rules are excluded from the concept of law. An example can be seen in European law. Although the European legislative bodies have competence to prescribe criminal liability in a Directive in accordance with the European treaties, in order for those criminal norms to be applied within the internal national order, the national parliament must implement them with a national 1 P.J.A. Feuerbach, ‘Lehrbuch des gemeinen in Deutschland gültigen peinlichen Rechts’ (1801); for a history of the principle see: V. Krey, ‘Keine Strafe ohne Gesetz’ (Walter de Gruyter 1983). 2 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 86. 3 B. Schünemann, ‘Nulla poena sine lege? Rechtstheoretische und verfassungsrechtliche Implikationen der Rechtsgewinnung im Strafrecht’ (Walter de Gruyter 1978), p. 3. 4 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2009), p. 83. 86 Intersentia  Chapter III. The Principle of Legality parliamentary statute. In absence of such implementation, national authorities would violate the legality principle if they were to base criminal liability solely on European Directives.5 2.2. LEX CERTA The second aspect of the legality principle, known as lex certa, is addressed to the legislator and it requires that criminal liability be described in a precise manner so that citizens can understand from the wording of the norm what is prohibited. Vague criminal norms violate the principle of legality, as individuals should be able to distinguish with certainty prohibited by not prohibited acts.6 There are different methods to describe criminal liability in a statute.7 Frequently, the use of general clauses such as ‘public morals’ can be rather problematic.8 Thus, on occasion, courts may declare a vague criminal norm as being in violation of the legality principle.9 Furthermore, this aspect obliges the legislator to define criminal liability in comprehensible language, namely in the official language of the legal system. This means that when the origin of criminal liability can be found in international instruments, it must be translated during implementation in order to be in line with the lex certa.10 Finally, the principle of legality demands that the legislator make its criminal legislation accessible to the public via publication. 2.3. LEX STR ICTA The third aspect of the legality principle is addressed to courts and it prohibits the extensive judicial interpretation of criminal liability. This aspect is also known as lex stricta. Judicial interpretation should always remain faithful to the wording of the criminal statute, as the latter depicts the limits of the scope of criminal liability.11 There are different methods of interpretation that exist in the toolbox of courts; for example, there is the grammatical interpretation, the historical interpretation and the teleological interpretation where courts 5 ECJ C-80/86, Kolpinghuis Nijmegen ECR 3969. 6 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), pp. 94–95. 7 W. Hassemer, ‘Einführung in die Grundlagen des Strafrechts’ (Verlag C.H. Beck 1990), p. 258. 8 B. Schünemann, ‘Nulla poena sine lege? Rechtstheoretische und verfassungsrechtliche Implikationen der Rechtsgewinnung im Strafrecht’ (Walter de Gruyter 1978), p. 30. 9 22 June 1989 BVerfG NJW 1989, 1663. 10 HR 24 June 1997 NJ 1998, 70 m.nt ’t Hart. 11 10 January 1995 BVerfG NJW 1995 1141. Intersentia 87  Christina Peristeridou search for the telos – the will – of the legislator.12 Particular problems emerge with analogical interpretation, where the judge brings acts within the scope of criminal liability by using analogical reasoning. Analogical interpretation is prohibited by the legality principle; however, it is not always easy to determine what analogy is and how to demarcate analogy from other interpretations. For example, the German court was faced with the question of whether or not the term ‘weapon’ in Article 113 para 2.1 GCC (resisting enforcement officers by means of a weapon) could also encompass a vehicle (a car) that was used to injure an officer. The court held that such an interpretation of the term ‘weapon’ would constitute an interpretation by analogy, which is prohibited by the legality principle, as the term ‘weapon’ in its casual meaning includes only objects whose primary purpose is to be used as weapons (such as knifes, pistols etc.).13 In contrast, when it comes to technological developments, there are various examples in case law where courts have adjusted existing legislation. A case worth mentioning in any analysis involving the Dutch system is the electricity case, where the Dutch court interpreted the term ‘good’ (‘enig goed’) in Article 310 DCC on theft, as also encompassing electricity.14 The court used argumentation that is quite similar to analogy. According to the court, ‘goods’ are those with autonomous existence, availability, capability to move and economic value. Since electricity can be accumulated, it falls within the scope of this term.15 Such interpretation, according to the court, is also consistent with the modernisation of life, as goods cannot be only material objects. Somewhat similar cases have been also interpreted accordingly, such as cases involving computer data16 and most interestingly the concept of theft in the virtual world of computer games.17 2.4. LEX PR AEVIA The final aspect of the legality principle deals with the concept of time and it prohibits both the legislator and the judge to draft and apply – respectively – criminal liability in a retroactive manner. This aspect is also known as lex praevia. It should be noted that this is the aspect of the legality principle that is usually codified in criminal codes and constitutions; for example the legality 12 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), pp. 102–105. 13 1 September 2008 BVerfG NStZ 2009, 83. 14 HR 23 May 1921 NJ 1921, 564. 15 M.S. Groenhuijsen and F.P.E. Wiemans, ‘Van electriciteit naar computercriminaliteit’ (Gouda Quint 1989), p. 84; B.M.J. van Klink and L.M.M. Royakkers, ‘Analogie en Rechtszekerheid in het strafrecht’ Delikt en Delinkwent (1999), pp. 977–997. 16 See for a comparison between cases: M.S. Groenhuijsen and F.P.E. Wiemans, ‘Van electriciteit naar computercriminaliteit’ (Gouda Quint 1989), p. 84. 17 Rb. Leeuwarden 21–10–2008, LJN BG0939. 88 Intersentia  Chapter III. The Principle of Legality principle in §1 GCC reads: ‘An act may only be punished if criminal liability had been established by law before the act was committed’. This is because retroactive criminalisation is particularly detrimental for individuals, as it brings about an unfair surprise. The other aspects of the legality principle can be easily interpreted from this codification, as any vague, extensively interpreted or unwritten criminal liability can be considered as retroactive.18 What is retroactivity? Retroactive criminalisation can occur if the legislator gives a statute an enactment date that is in the past or if the judge applies a statute that was published after the behaviour took place. Therefore, the legislator must never attach a retroactive effect to statutes that define criminal liability, and courts should make sure that the legislation that they apply pre- dated the behaviour. This can be especially problematic when there are various amendments to legislation. An important exception to the lex praevia is when the amendment of criminal liability is for the benefit of the accused (behaviour is decriminalised, or the scope of criminal liability is limited). In that situation, the prohibition of retroactivity does not apply and, on the contrary, courts must apply the more lenient legislation retroactively as this benefits the accused. The obligation to retroactively apply a more lenient amendment of criminal liability is also known as lex mitior.19 3. THE R ATIONALE OF THE PRINCIPLE OF LEGALITY The principle of legality is embedded in all European legal systems. It has been codified in many national codes, constitutions and international instruments, such as Article 7 of the European Convention of Human Rights (ECHR) and Article 49 of the Charter of Fundamental Rights of the European Union. Why is this principle so important? 3.1. HISTOR ICAL ROOTS It is not hard to imagine a criminal system without this principle. The parliament would be able to draft criminal liability with retroactive effect and using general clauses, creating norms that no one could understand, which would capture behaviours already committed. However, these norms would 18 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), pp. 87–88. 19 ECtHR, Scoppola v Italy, 10 June 2008, Appl. No. 50550/06. For an interesting application of the lex mitior in the Netherlands see: HR 9 November 1942 NJ 1943, 10; HR 15 January 1952 NJ 1952, 242; G. Knigge, ‘Verandering van Wetgeving’ (Gouda Quint 1984), pp. 459–463. Intersentia 89  Christina Peristeridou be of no significance as courts would be able to criminalise any act they see fit without abiding by any legislation, while the prosecutor would be able to initiate proceedings against anyone she is not fond of, for whatever reason she finds. The individual would not be able to know in advance which acts are prohibited. Citizens would be subjected to the power of the state without any conditions, they would be deprived of the right to determine their lives and they would lose trust in the actions of the state and eventually in their own actions. Such a criminal system would be unfair and cruel as it would not position the individual as the ‘centre of agency’ but as a toy in the hands of the powerful few.20 Hence, the principle of legality ensures that the criminal system is armed with protective guarantees against uncertainty and state arbitrariness.21 The roots of the principle of legality are found in certain important theoretical rationales that underpin our criminal and constitutional law systems, such as individual autonomy and liberty, democracy, separation of powers and the Rule of Law. Historically, these values have been prevalent in Western culture since ancient times – for example in the writings of Plato, Socrates and Aristotle22 – and they were also depicted in the axioms of Western religions.23 However, it was during and after the Enlightenment movement that they were embedded in our criminal law systems. Under the influence of Enlightenment thinkers such as Montesquieu, Beccaria and Rousseau, the legitimacy of the oppressive powers of the Ancien Régime has been put into question. What was put forward from the collective work of the Enlightenment thinkers was a new legitimation theory for criminal law, according to which the oppressive powers of the state have a dual legitimation: a legitimate criminal law should ensure a peaceful society and also protect the individual/potential perpetrator from state arbitrariness.24 3.2. INDIVIDUAL LIBERTY, AUTONOMY AND HUMAN DIGNITY The legality principle mirrors a respect towards individual liberty, autonomy and human dignity. According to these concepts, human beings are approached as 20 E. Claes, ‘Criminal justice, legality and human dignity’ in E. Claes, R. Foqué and T. Peters (eds.), Punishment, restorative justice and the morality of law (Intersentia 2005), p. 41. 21 A.A.G. Peters, ‘Het rechtskarakter van het strafrecht’ (Kluwer 1972), p. 9; G. Grünwald, ‘Bedeutung und Begründung des Satzes nulla poena sine lege’ ZStW (1964), pp. 13–14. 22 R. Foqué, ‘Criminal Justice in a Democracy: Towards a Relational Conception of Criminal Law and Punishment’ Criminal Law and Philosophy (2008), pp. 207–227. 23 A. Supiot, ‘Homo Juridicus: on the Anthropological Function of the Law’ (Verso 2007), pp. 10–28. 24 S. Gutwirth, ‘Waarheidsaanspraken in recht en wetenschap’ (Maklu 1993), pp. 337–348. 90 Intersentia  Chapter III. The Principle of Legality subjects of the law, unique individuals, endowed with reason and ‘born free’.25 As the individual sphere of liberty is restricted by the formation of societies and the prohibitions of criminal law, it should be limited as little as possible: ‘Thus it was necessity that forced men to give up a part of their liberty. It is certain then, that every individual would choose to put into the public stock the smallest portion possible […] The aggregate of these, the smallest portions possible, forms the right of punishing; all that extends beyond this, is abuse, not justice.’26 Having this element as a starting point, it becomes necessary to limit the powers of the state. The concept of individual autonomy entails that individuals make conscious and rational choices and have the right of self-determination.27 A law based on individual autonomy is a law that fosters human dignity.28 Individual autonomy enriched with the concept of human dignity is translated as ‘the capacity of every person to act under minimal conditions of confidence, which comes down to the capacity of every person to discover in the rules of law a minimal regulatory force with regard to her own conduct and those of others.’29 Thus, a legitimate criminal law must safeguard a climate of legal certainty. 3.3. RULE OF LAW The principle of legality is also based on the concepts of the Rule of Law, democracy and separation of powers. Roughly speaking, the Rule of Law means that a polity should be governed by ‘law’ as opposed to arbitrary decisions of state authorities; however, there are various interpretations of this concept.30 In essence, the Rule of Law advocates for the subordination of the state-powers to legal norms. Some interpretations of the Rule of Law approach this concept from a formal perspective, according to which a system governed by the Rule of Law must be regulated by norms that are clear and non-retroactive.31 Other interpretations advocate for additional substantive requirements, such as the protection of certain basic individual or human rights.32 If infused with a liberal 25 J.-J. Rousseau, ‘The Social Contract: or Principles of Political Right’ (1762), Book 1, Ch. 1 (republished by Wordsworth Editions, 1998); A. Supiot, ‘Homo Juridicus: on the Anthropological Function of the Law’ (Verso 2007), pp. 10–11. 26 C. Beccaria, ‘An essay on Crimes and Punishments’ (1764), Chapter 2, Of the right to punish (republished by Branden Press Inc 1983). 27 R. Dworkin, ‘Taking rights seriously’ (Duckworth 1977), p. 263. 28 J. Habermas, ‘The Concept of Human Dignity and the Realistic Utopia of Human Rights’, in J. Habermas, The crisis of the European Union: a Response (Polity 2012), p. 81. 29 E. Claes, ‘Criminal justice, legality and human dignity’, in E. Claes, R. Foqué and T. Peters (eds.), Punishment, restorative justice and the morality of law (Intersentia 2005), p. 41. 30 B.Z. Tamanaha, ‘On the Rule of Law: History, Politics, Theory’ (Cambridge University Press 2004), p. 92. 31 F.A. Hayek, ‘The road to serfdom’ (Routledge and Kegan Paul 1976), p. 54 (originally published in 1944). 32 R. Dworkin, ‘A Matter of Principle’ (Harvard University Press 1985), pp. 11–18. Intersentia 91  Christina Peristeridou ideology, the Rule of Law entails that the state should not impose any particular versions of the ‘good life’ to individuals. This neutrality of the state can be seen as ‘the priority of justice over the good, and hence the fact that questions of the good life recede behind questions of justice.’33 A democratic Rule of Law is a polity governed by the laws produced by democratic procedures. The principle of democracy is an expression of political autonomy, citizenship and equality; in a democracy, individuals are able to participate equally in the formation of the ‘general will’ (la volonté générale) and their participation to the decision- making is an exercise of their right to-self determination.34 A democratic system allows the masses an adequate degree of self-governance or self-legislation, according to which ‘the addresses of law are simultaneously the authors of their rights’.35 Therefore, criminal laws produced by democratic procedures find their legitimation in that they are products of the general will, which individuals, as potential victims and perpetrators, have agreed upon. The limitation of their freedom and the determination of the boundaries of their individual autonomy is a product of their will. 3.4. SEPAR ATION OF POWERS A democratic Rule of Law presupposes the necessity to safeguard the democratic legitimation of criminal liability and thus to separate the role of the parliament from the role of judge and the government. The doctrine of the separation of powers, advocated by Montesquieu in De l’esprit des lois (The Spirit of the Laws) in 1748, structures and balances the trias politica.36 Its purpose is to decentralise the power of the state, canalise its spontaneity and distribute it amongst the state actors taking into account the democratic principle and the protection from state arbitrariness. This concept has also received various interpretations, which are influenced by the perspective one takes of the Rule of Law. A strict interpretation of the separation of powers holds that courts should merely apply criminal norms so that individuals are safeguarded from arbitrary judicial decisions that define the scope of criminal liability without a democratic legitimation.37 Frequently in literature, this interpretation is based on the words of Montesquieu that courts are ‘only the mouth that pronounces the law’ (‘les juges de la nation ne sont que la bouche qui prononce les paroles de la loi?