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1
Nikolas H.M. Roos
On Crime and Time1
On Crime and Time a été publié dans une
version moins elargie dans : François Ost & Mark van Hoecke, Temps et Droit. Le
droit a-t-il pour vocation de durer ?, Bruxelles 1998 (Bruylant), pp. 385-424
Introduction
The question to be explored here is how the criminal law (hence: "CL") operates with time
(internal time) and how this has changed in historical time (external time). Internal time is
determined by the temporal criteria the CL sets to make human behaviour qualify as crime, to
organise the criminal procedure as a process in time, and to relate, as a function of time,
sanctions and crimes. The historical dimension, the evolution of the CL and its time structure, is
important for the reflection on how to interpret considerable changes in the internal time of
contemporary CL.
We will begin our analysis with the transition from the pre-classical to the classical model of the
CL, starting in the second half of the eighteenth century. The development of the classical
model was part and parcel of Enlightenment. Its spirit was to secularise, rationalise and
humanise the CL. It will be shown (section 2) that the classical model followed a functional
approach of crime and punishment, which it regarded as radically temporal and empirical
phenomena.
The validity of such an account of the classical model can be challenged because there has not
been a single justification of the classical CL. Absolutist theories focus on retribution as the
CL's primary function, relativist theories on prevention. Absolutist theories certainly do not take
a functional approach to crime and punishment. However, my claim about the functional nature
of the classical model is both historical and critical. My contention is that the founding fathers
of the model (Beccaria, Feuerbach and Bentham) were relativists, whereas retributivism cannot
account for a number of very typical features of the classical model (section 3).
Absolutists have always argued that the relativist view is incompatible with one or more of the
principles of criminal justice. In that case, relativism would not provide an adequate account of
the classical model either. In fact, the most well-known modern legal utilitarian, H.L.A. Hart,
frankly admitted that the utilitarian approach to criminal punishment was inherently
incompatible with the principles of criminal justice (section 4). I will argue that Hart was
mistaken and that the relativist view can be made entirely coherent if cast in a framework of an
appropriate political theory. In fact, the theory to be proposed, the so-called "Janus-face view of
the CL", can be grounded in Hart's very own ideas concerning a "minimal content of natural
law". It integrates retribution and prevention in one coherent theory. Moreover, it is not only a
theory of philosophical interest. It can also set a new critical criminological research agenda
(section 5).
I thank Peter Bal, Hans Crombag, Jaap Hage and Lyana
Timmermans for their critical reading of the manuscript. David
Cowley was so very kind to suggest many improvements of
language and presentation.
1
2
In section 6 a krypto-religious element within classical relativism will be analysed, which can
help to explain both Foucault's famous connection between disciplining and punishing and the
fact that classical relativism did not develop a Janus-face view sort of theory of the CL. The fact
that they were so preoccupied with the effectiveness and the efficiency of the CL explains why
they were much less interested in the principles of criminal justice as political principles. In fact,
the interest of the early absolutist in them was quite political, as will be argued in section 7.
Moreover, in the struggle with the inherent weaknesses of the absolutist position, the Dutch
legal philosopher Leo Polak came very close to a theory of the CL like John Rawls'. Rawls view
comes close to the Janus-face view again, although there remains a very important difference
with the latter (section 7).
Whatever the virtues of the Janus-face view of the CL, it has definite limits, because it is based
upon a classical model or a neo-classical model (analysed in section 8) of the CL. The postclassical CL would seem to lack the inner coherence of the (neo-)classical model. In fact, it even
has some pre-classical features. It is as if contemporary CL is falling apart in pieces which can
no longer be held together under the umbrella of the general principles of the CL. However, in
my view these pieces may find new coherence in the social field they apply to in interaction
with other types of law relevant to that field. I will suggest to interpret this process of legal
resystematisation as a further step in the process of functional differentiation and dynamisation
of the CL. Although there is, from this perspective, a continuity in the development from the
classical (and neo-classical) model to post-classical CL, the post-classical transformation is
much more dramatic. The difference in time structure of post-classical CL is reflected in a
structural reversal of the two components of the Janus-face view, punishment and rehabilitation.
This reversal suggests that a normative understanding of post-classical CL requires a
justification of criminal risk responsibility (section 9).
2. The epistemology of the classical model
The temporal framework of the pre-classical model still was a christian-religious one. I propose
to call it the Augustinian model. In that model the state figures as the temporal representative of
a supra-temporal order, the world of eternal happiness (a world without time) from which man
has fallen due to the original sin. The state has been established by God as an act of grace to
give mortal sinners a chance to escape from eternal damnation in hell, a subtemporal world in
which time, pain and suffering never ends. The state fights a war against crime, because crime is
an instrument of Evil to destroy the state which, by preventing anarchy, is an absolute condition
of redemption. As the state attempts to save us from hell, it is no wonder that its criminal
practices might seem to preempt those of hell. Punishment is very often a physical form of
punishment organised as an intimidating public spectacle to warn the spectators to keep their
sinful inclinations within bounds. The CL foreshadows the eventual separation of the black
sheep from the white sheep. The fact that the state is a temporal institution nevertheless, implies
that it is bound to make mistakes in doing so. This explains the great importance of confessions
in the CL, to be extracted, if necessary, through torture, which kept traits of an ordeal2.
By contrast, the classical doctrine tended to treat crime and punishment as purely secular
2
p.41.
See Michel Foucault, Discipline and punish, New York 1979,
3
phenomena for the first time. Crime was no longer seen as directed against a religious or
political order as such, unless it would be in the form of special political crimes. The aim of the
designers of the classical model was to put an end to the abuse of the CL against people accused
of things not known to be a crime, people accused of unobservable things and people sentenced
without facts or guilt having been proven. The advocates of the classical model wanted the
criminal sanction to be useful at the lowest possible cost for both society and the offender. They
wanted to put an end to the capriciousness, cruelty and inefficiency of the CL as it existed under
the conditions of feudality and of unenlightened absolutism. The classical programme was, in
short, a programme of modernisation.
Although the classical view is indebted to the work of Montesquieu and Voltaire, it came to a
first influential expression in Cesare Beccaria's Dei delitti et delle pene, published anonymously
in 1764. However, one of the reasons of its almost immediate success may have been that it had
been written as a pamphlet rather than as a systematical treatise of the foundations of the CL.
The classical approach was first developed as a truly theoretical system by Jeremy Bentham in
England, notably in his An Introduction to the Principles of Morals and of Legislation (1789)
and the Traités de Législation civile et pénale (1802) 3 and Théorie des peines et des
récompenses (1811)4. In Germany, the classical approach was presented as a systematic theory
by Paul Johann Anselm von Feuerbach, notably in his Revision der Grundsätze und
Grundbegriffe des positiven peinlichen Rechts (1799/1800) and in his Lehrbuch des
gemeinen in Deutschland geltenden peinlichen Rechts (1801)5.
The works of these three authors in the field of the CL have been very influential. Beccaria's
work inspired much of the reform in several European countries during the second half of the
eighteenth century (Sweden, Prussia, Russia, Austria, Tuscany)6, but most of all, and in a more
systematic fashion, the revolutionary Code Pénal 17917. Feuerbach has been directly influential
as the main author of the Bavarian Penal Code (1813), which was to serve as a model for the
later Prussian - (1851) and Imperial German Penal Code (1871)8. Bentham's influence has been
This book was published in an english translation in 1840
under the title Theory of Legislation.
3
It had been written in 1775 already
under the title
Rationale of Punishment. It is embodied in Principles of Penal
Law in Bowring's edition of The Works of Jeremy Bentham (18381843), which also contains the relevant sections of Principles
of Morals and Legislation as well as Bentham's tract On Death
Punishment (1830).
4
5
Republished by Scientia Verlag, Aachen 1966.
See Leon Radzinowicz, A History of English Criminal Law
Vol. I, 'The Movement for Reform', London (Stevens & Sons)
1948, pp. 286-300).
6
See Pierre Lascoumes, Pierrette Poncela and Pierre Lenoël,
Au nom de l'ordre, Paris (Hachette) 1989, p. 26.
7
8.
See Eberhard Schmitt, Einführung in die Geschichte der
deutschen Strafrechtspflege, Göttingen (Van den Hoek und
Ruprecht) 1965, p. 344.
4
greatest in England9 although it was slow in coming and his proposal for a Penal Code did not
materialise. His philosophical ideas reinforced the generally utilitarian English reformist spirit
that was responsible for the later acceptance of so many of his concrete proposals. Bentham had
a more immediate influence on the continent, notably on the Code Pénal of 181010. He also
became directly involved as a reformer when he was invited as a commentator to the draft Penal
Code of Spain in 182111.
The secular view on crime and punishment of the Enlightenment implied that they had to be
dealt with as purely temporal, that is, as empirical and functional matters. The CL was
constructed as a social system that has an end in itself, which is the reduction of the amount of
crime as well as of the human and social costs of criminal punishment. The rationality of its use
became crucially dependent on temporal factors. The designers of the classical system had to
answer the following questions. How should the facts it should operate upon be identified as
events in time? How should they be processed through the criminal procedure as an ordered
time sequence? How should punishment function as a feed-back mechanism, that is, as a
mechanism which relates events in the past to projected events in the future?
A. The object of the CL
We will first analyse the temporal epistemology of the subjective side of the object of the CL,
the conceptualisation of the criminal actor. From a functional point of view it simply makes no
sense to address norms to people when they cannot help them controlling their behaviour. By
consequence, only behaviour which is normally under the control of a person can be the object
this person may be criminally accused of. Therefore, one can also not bear criminal
responsibility for the acts of another person unless one had both the responsibility and the
possibility to prevent that person from committing a crime. Direct control, therefore,
presupposes a certain degree of rationality, and it excludes criminal responsibility of animals,
the mentally insane and children under a certain age.
A corollary of the individualist-functional conceptualisation of the (criminal) act is the principle
of equality. No class privileges were allowed to figure in the CL as was usual under feudal
conditions, when the clergy and noblemen had courts, procedures and material norms of their
own. This is not because there can be no exceptions to the principle. However, from a functional
point of view there is no argument for categorical privileges. An MP or a medical doctor can
refuse to make declarations as a witness, but only if and in so far the declaration demanded is
related to their functioning as such.
The temporalised-functional conception of the CL also has implications for the
conceptualisation of the objective side of a crime. A crime and its sanction must be defined in
advance and must be specific enough to be applied to events which can be located precisely in
time: 'nulla poena sine lege, nulla poena sine crimine, nullum crimen sine poena legale'
See Radzinowicz, O.c., pp. 358-59.
9
10
See Lascoumes and others, O.c., pp. 208-210.
For a more comprehensive assessment of Bentham's
influence abroad see E.L. Kayser, The Grand Social Enterprise,
New York (Columbia University Press) 1932, pp. 82-90.
11
5
(Feuerbach12). A person cannot bear criminal responsibility for an act he could not know to be a
criminal act. In a functional approach there are no crimes "by nature" any more. Whether or not
a particular illegal act can be punished or can only be sanctioned via other legal means, is, in
principle, a contingent matter, depending on relative efficiency. Another functional reason
supporting the legality principle is that if knowledge of the severity of the sanction one can
expect is a functional condition of the effectiveness of punishment as a feed-back system, it is
important that the connection is specified by the law. However, that consideration belongs to the
analysis of the criminal sanction and its consequences.
To be identifiable in time, it is necessary that an act must have been observable. It cannot be an
act that was merely a projected act. However, if an act can be recognised as a particular criminal
act such that, as far as it depends on the actor, it is most likely to have the consequences the law
tries to prevent, the act is no longer merely a project. Such an act is called a criminal attempt if it
does not have the consequences the actor intended it to have. By implication, an act can be a
criminal attempt even though an offender might still have interfered with the normally
expectable consequences, but could not do so because factors out of his control made it
impossible. Therefore, the CL can define an act in a way that surpasses the actual facts, but it
does it in a defeasible way. If the offender stops out of his own free will before the criminal act
has been completed, it will not speak of a criminal attempt. This defeasible epistemology
implies that two cases which might have been the same from a supra-modal point of view, may
be treated unequally.
B. The criminal legal procedure
The temporalisation of the CL in the classical model is a radical sort of temporalisation. Not
only the object of the CL is seen as a temporal matter, so is the CL itself. It is a homeostatic,
secondary and therefore "a fortiori" temporalised system. The secondary nature of the system
implies that it must monitor the primary system 'in time' and order its procedures sequentially
according to the inner logic of the criminal legal process from the moment of detection up to the
conditions of the execution of the sentence. Therefore, it must also monitor its own 'timely'
operation13. The system does this, among others, via rules on dismissal of the prosecution and
through statutes of limitation, after which a prosecution may not even be started any more. The
system's secondary nature and the fact that its own malfunctioning is worse than not functioning
at all, is reflected, for instance, in the in dubio pro reo-principle, which is one of the
subprinciples of the praesumptio innocentiae as expressed in art. 9 of the Déclaration des
droits de l'homme et du citoyen of 178914. In fact, all of the major principles of the criminal
Feuerbach's famous formula was not, as is usually
believed, directly inspired by the principle of the rule of
law, as will be explained in section 7.
12
It is a system that, if only because it is so complex, is
unable to function if society is seriously out of balance, that
is, under conditions when crime would become so 'normal' that
the system would be flooded with cases it could no longer
handle properly.
13
M. van de Vrugt, 'In dubio pro reo' in J.E. Spruit & M.
van de Vrugt (eds.), Brocardia in honorem G.C.J.J. van den
Bergh, Deventer (Kluwer) 1987, pp. 123-129, shows that the
principle was never firmly established or so explicitly
14
6
legal procedure, which are usually understood as having their origin in the humanistic values of
the classical system, can be understood as characteristics of the criminal legal system (hence:
"CLS") as a temporalised feed-back system.
The presumptio innocentiae is primarily a procedural principle. Not only would it otherwise
contradict the presumptio nocentia that is required to arrest someone in connection with a
crime, but it would also be groundless in all cases in which an offender has been caught in the
act or a clear and convincing confession has been made. The presumptio innocentiae has
important implications. One is that the burden of proof is carried by the state, with the right of
the suspect to remain silent as a corollary. Another implication is that judges should not only be
independent and objective, but should also not express a (final) judgement before the whole
procedure has been carried through. An implication of the demand for neutrality is that a judge
that has been involved in the inquisitorial phase of the process, cannot participate as a judge
when it comes to the trial phase15. The right to counsel from, in principle, the moment of arrest,
also follows from the presumptio, as an arrested person will need an intermediary to have
access to the factual and legal information necessary for his defence. Furthermore, protection
against unjust detainment during investigation will increase the longer a suspect is being
detained. This reflects the temporalised nature of the process, which, if delayed too long without
good reason, may be ordered to stop altogether.
Finally, the ne bis in idem-principle, the fact that, in principle, one cannot be put on trial for the
same act after a final verdict, also expresses the temporalised nature of the criminal process. The
"same act" refers to a complex of facts in space and time and not to the possible plurality of
legal qualifications of those acts16. It may be that later facts show a suspect to be guilty far
beyond reasonable doubt, but once a crime has been declared unproven in a (final) judgement,
the case belongs to the past as far as the CL is concerned. The asymmetry that the principle does
not apply if new facts prove a condemned person to be innocent, reflects the secondary nature of
the system, which only takes its own malfunctioning into account when, on hindsight, it should
not have started to operate to begin with.
C. The criminal verdict, the sanction and its consequences
expressed before.
One may even argue that the praesumptio innocentiae
demands an accusatorial model of the criminal process. In fact,
the jurisprudence of art. 6 of the ECHR strongly tends towards
that model. See Hans F.M. Crombag, On the Europeanisation of
Criminal Procedure, in Bruno de Witte and Caroline Forder
(eds.), The Common Law of Europe and the Future of Legal
Education, Deventer (Kluwer) 1992, pp. 397-414, who also
discusses the important empirical support for the greater
justice of the accusatorial model.
15
This is a significant difference of the principle's
meaning in Roman and in the modern criminal law. The principle
was first established by August in 17 BC, but it did not apply
if the same facts could be qualified differently in legal
terms. See E. Slob, 'Bis de eadem re ne sit actio', in J.E.
Spruit & M. van de Vrugt (eds.), O.c., p. 85.
16
7
Let us now take a look at the temporal construction of the verdict, the sanction and its
consequences. In a purely functional perspective a sanction makes sense only if it feeds back
into the criminal event and its consequences. Otherwise there would be no reason to take the
occurence of crime as the point of departure of the system. Therefore, care must be taken that
the criminal fact, the identity and the guilt of the offender(s) is proven through means whose
causal link to the crime will establish it beyond reasonable doubt.
The pre-classical system was static in its self-reflection. It assumed that the wisdom of the
tradition would be able to absorb all possible cases. Changes in society, if occurring at all, were
seen as recurrent stages of society which were already reflected in the traditional legal wisdom.
Moreover, the pre-classical CL had kept, at the same time, features of the supernatural. Acts of
God do not demand to be rationally understandable, on the contrary, they represent superior
forms of wisdom. Motivating sentences could be a desacralisation of that wisdom.
By contrast, in the classical model the verdict is the point in time when the system changes from
its cognitive phase to its pragmatic phase, the actual process of feed-back. A temporalised
system can only gain an identity through change if it can account for its development from
moment to moment in time and, quite disrespectfully, declare parts of its past irrelevant if it
finds them to be mistaken on hindsight. Unlike supernatural systems, it cannot claim
infallibility. Traditionally the duty to motivate is seen from the perspective of the rights of the
defence and the legitimation and political control of the system. Epistemologically it can be seen
as an act of self-control, an account of how a case fits into the system and checking if a case
demands an adaptation of the system.
Given the feed-back functional nature of the system, purely emotional or religious grounds for
punishment, in so far as they have no causal effects on the occurrence of crimes and their
negative consequences, are irrelevant for punishment. Moreover, even if a feed-back
relationship between crime and sanction exists, punishment may not become just an occasion to
exploit offenders in ways which have nothing to do with punishment as such. This would be a
purely external sort of rationality of the CL, because it does not support punishment as a feedback mechanism.
Even if the feed-back relationship between the crime and the sanction is an internal one, its
rationality still depends on the structural or non-structural nature of that relationship. From a
functional-temporal perspective the structural effects the CL should aim at are the prevention of
crime or the compensation of victims, if there are any. However, norms of the CL can also have
non-structural, ultimate aims which are not automatically realised if the CL's structural effects
are. In fact, they can be incompatible. For instance, incarcerating entrepreneurs for tax fraud
may have a deterrent effect, but it may also have negative effects upon the activities of some of
these entrepreneurs such that the economic and tax losses resulting from punishment are greater
than the gains. But that is not something which can be easily taken into account by the CLS. The
operationability of the system depends on an abstraction from the usually many, variable and
uncertain factors that determine the non-structural effects of criminal sanctions. As functionally
differentiated social systems it is typical for both the classical model of the CL and its
successors that they take abstraction from the systems non-structural effects. They operate, to
use Luhmann's terminology, as operationally closed systems17.
Luhmann has distinguished internal and external effects
as 'Funktion' and 'Leistung'(achievement).
17
8
Operational closure is sometimes misunderstood as an exclusive input-orientation of a system,
whereas it means nothing but a systemic selectivity of purpose. In fact, the evolution from the
classical to a post-classical CL can be seen as a process in which more and more conditions of
the effectiveness of criminal punishment are taken into account. Because of this increasing
output-orientation the complexity of the CL increased, whereas the differentiation between the
system's structural goal, the prevention of crime, and the ultimate, political goals of criminal
punishment, which depend on the specific nature of a crime, became less clear.
Operational closure is not a sufficient condition for a system to be structurally effective. Given
the structural goal that a system sets itself, there still is a need to choose between different
possible means to realise that goal and to structure the operation of the system accordingly. In
fact, a CLS must be highly selective as to what it wants to aim at (e.g. special deterrence,
general deterrence or appeasing victims). Aiming at too many effects at the same time or not
putting these aims in an order of priority, may make its internal structure incoherent and
unmanageable (see next section). This problem only becomes the more pressing as the CL
becomes more output-orientated.
The classical system still was an almost purely reactive system. It took about a century before a
neo-classical model established itself. However, it was still a reactive system. It was only more
output-orientated in the sense that it was less blind for the ineffectiveness or the
counterproductivity of the classical system. It tried to cope with its ineffectiveness by the
development of what was later to be called "alternative" sanctions: education, therapy,
counseling or, if nothing would help and an offender was thought to be dangerous,
incapacitation. The restrictedness of its output-orientation explains why it was perceived as
shifting the emphasis of the CLS from general prevention to special prevention. However, in my
view it is correct to speak of a neo-classical model precisely because special prevention
remained a secondary function within a system that kept its fundamental classical traits (see
next section).
As we will see, the post-classical CL is no longer just a reactive system, but it has traits of an
interactive system. An interactive system does not take its environment as given, but it tries to
influence it in order to prevent crime or to handle it more efficiently. Moreover, it will adapt
itself to changes in its environment, changes which it may have induced itself. However, being
an interactive system does not imply that there is no operational closure any more, because it is
still the incidence of crime that is the primary concern of the system.
3. The coherence of function and structure in the CL
As explained in the last section, the classical model of the CL as a radically temporalised system
presupposes the existence of a negative feed-back relationship between the criminal sanction
and crime. It was also stated that such a system would have to be highly selective as regards the
function of the criminal sanction because its inner structure would depend on it. In this section I
would like to show by way of a logical reconstruction that the modern CL has, indeed, made
such a selection, at least tendentiously, because the selection has not been equally consistent in
all countries.
The way I will operate is to list plausible structural consequences of the CL and then analyse
9
which of these are compatible with classical legal doctrines which make the sanction or its size
dependent on time factors. I will look at the following four potential structural functions of the
CL:
1. retribution
2. appeasement of victims
3. special deterrence (SD)18
4. general deterrence (GD)
Three of the four functions are obviously connected to rival theories of justification of the CL.
Only appeasement of victims has a somewhat unclear relationship to them, because
appeasement would seem to be a consequence of the other functions, or at least to be based on
the belief in these other functions. The reason to put it on our list, is that appeasement would
also seem to be a useful effect of incapacitation. Therefore, if we exclude incapacitation from
our list, as we did, appeasement of the victims should be put on it as a possible aim of
incapacitation. I have also not included norm confirmation and rehabilitation of the offender in
the list. They are obviously possible secondary effects of the functions already listed.
As according to our thesis relativism was the twin brother of a radical temporalisation of the
CL, it makes sense to see to what extent the different functions listed can explain doctrines
which connect temporal aspects of the criminal act with the applicability or the size of a
criminal sanction. The doctrines to be analysed are not universal in western legal systems.
However, majorities of these doctrines figure in all of these systems. Moreover, even though a
doctrine may not exist as such in a particular CLS, it may nevertheless be followed in practice,
or exist 'under cover' in other doctrines. The legal doctrines that will be reviewed are:
a. impossible crimes
b. criminal attempt
c. periods of limitation
d. plural concurrence
e. recidivism
A. Impossible Crimes
In all continental CLS's impossible crimes remain unpunished19. Impossible crimes are part of
the laughing stock of the CL. A person thinks he is committing a crime, but he does not. The
reason can be a defect in the object of the crime (e.g. an abortion on a woman that is not
pregnant), a defect in the means (e.g. poisoning believing that what is in reality sugar is
I will use the term deterrence because it is a standard
expression. However, intimidation would be more adequate,
because deterrence can be caused by many other factors than
intimidation.
18
The English criminal law follows a casuistic pattern in
this respect, as is normal for English law. See Max Grünhut, in
E. Mencke, A. Schönke, H.H. Jeschek, Das ausländische
Strafrecht der Gegenwart, Berlin (Duncker & Humblot) 1958, p.
189.
19
10
strychnine) or because of the legal relationship between the would-be offender and the object
(e.g. stealing a bicycle that happens to be one's own). Impossible crimes are not punished.
Retribution cannot explain this, because there is an actus reus. An impossible crime can create
great indignation among the victims that were targeted and, therefore, appeasement cannot
explain this either. Nor can SD because the fact that the would-be offender made a fool of
himself, is no guarantee that he will not try again. Quite the contrary. However, GD can explain
why no sanction follows. The crime has aborted itself and the legal community can laugh about
the foolishness of the would-be offender. Because of that foolishness he sets no example of a
successful crime. Punishing such crimes might even be counter-productive. Offenders might
take more precautions not to make mistakes.
B. Criminal Attempt
In many countries criminal attempts are punished less severely than the completed crime. In the
Netherlands, for instance, the maximum penalty will be one-third lower. By contrast, in France
and Germany no distinction is made between attempted and completed crime as far as the
maximum penalty is concerned, unless the law determines otherwise for a specific crime.
Sometimes this takes the form of special crimes for preparatory acts. The characteristic of a
criminal attempt is that the crime has not been completed because of factors that were not under
the control of the offender. Thus, if a thief ends the job because he has finally decided not to
steal, there is, in most CLS's, no attempt in a legal sense20. However, if he decided to do so
because of an alarm, and is then caught, he will have made a criminal attempt. Retribution
cannot explain the differentiation between attempt and completed crime because there is no
difference between them as far as 'mens rea' of the offender is concerned. Appeasement is not a
very good explanation either. Suppose that the thief is caught by the owner-victim after having
stolen. This may be much more satisfying for the victim than if he had caught the thief before
the act was completed. SD will also not suffice as an explanation. Why would an unsuccessful
offender be less dangerous than one who completed the crime? If frustration would be a
recidivism preventing factor, one would also have to take crime-frustration into account after
the completion of the crime. It must be much more frustrating for a thief to be caught after
getting stuck in the elevator on the way out than being caught before he had his hand on the
loot. Again, GD can explain a lesser penalty. A criminal attempt is a failure to upset the legal
order. However, differently from impossible crime, not punishing a criminal attempt might
stimulate both the frustrated offender and others, who think that they can do better than him, to
try it again. GD can also explain why it is wrong to take post factum-frustrations of crime into
account. If offenders who have been caught with the loot would be punished less than those who
were caught after they had hidden it, the more severe penalty in the latter case would suggest
that the thieves have earned themselves a title for keeping what they have stolen.
C. Periods of Limitation
Periods of limitation after which a crime can no longer be prosecuted, would seem to accord
with theories of retribution and appeasement. After a certain period the need and desire to keep
20 .
An exception to this is to be found in e.g. English,
criminal law, which does not differentiate between criminal
behaviour that is not carried on because the criminal freely
decided to do so and cases in which this was determined by
factors which were not under the control of the criminal.
11
the offender in check or to teach him a lesson may have subsided. However, both theories
cannot explain the all or nothing-nature of periods of limitation. One day before the end of the
period a crime can still be punished as severely as when it was just recently committed. One day
after it, it cannot be punished at all. If the desire for retribution or appeasement becomes less
over time, it would be more logical to have a gradual decline in the maximum penalty rather
than an all or nothing-limitation. The same goes for SD. At first sight one might think that
periods of limitation make sense in connection with SD. If a person has not committed another
crime for a longer period of time, it is plausible that he has become a law-abiding citizen again.
Again, however, the all or nothing-nature of the period of limitation is therefore unexplainable,
whereas the whole argument fails if the person in question has committed new crimes after the
one which could no longer be prosecuted once the period of limitation had elapsed. If we then
consider GD, at first sight it may seem as if periods of limitation are undesirable. The more
crimes are punished, the stronger will be the deterrent effect. However, the longer it is since a
crime has been committed, the less will be its negative effect on the trust in the CL as a
deterrent of crime. The longer ago the crime was committed, the more it will disappear from the
collective memory. It may be wise to let a crime rest then because a prosecution will bring back
those memories back to life. The risk of disappointing the victims whose memories are
reactivated when it comes to sentencing is also considerable, as many a war criminal's criminal
process has demonstrated. From the point of view of the economics of GD, it is more important
that especially those crimes which are solved and prosecuted are those which are still relatively
fresh in the collective memory. Moreover, proof of a crime will become more difficult as time
goes by and it is important that the police and the public attorneys invest their very scarce and
expensive energies in cases which have a good chance of leading to end with the imposition of a
criminal sanction. However, all these considerations are stll not conclusive as far as the all or
nothing character of periods of limitation is concerned. However, from the point of view of GD
it is important that potential criminals will not be deterred less by the prospect that they will be
punished less the more time passes before they are caught. In fact, periods of limitation should
not be so short in that potential criminals may speculate that the length of that period increases
their chances of impunity noticeably.
D. Plural Concurrence
Plural concurrence refers to an offender who has committed two or more pragmatically
unconnected crimes before he is charged in a criminal court. For example, someone who breaks
a window in order to be able to steal something, will not be charged for two separate crimes,
because their is a pragmatical connection between the two acts, be it that stealing and damaging
property at the same time may be a separate sort of burglary that is also punished more severely.
By contrast, someone who is on his way to a robbery at night using a defective car, commits
two, pragmatically unconnected crimes. According to Dutch law, in case of plural concurrence
of felonies the maximum-penalty of the most serious crime can be raised by one-third. A case of
plural concurrence in which the lacking connection is evident is when driving a defective car
takes place a day before the robbery takes place. In many legal systems it is not possible to
sanction all cases of plural concurrence separately or if this is allowed, the execution of the
sentences may not take place cumulatively.
From the point of view of retribution, non-addition makes no sense. However, plural
concurrence as a reason for non-addition is not a universal feature of western legal systems. In
the U.S.A., for instance, each individual crime is punished separately, although it may be
decided that the penalty will be executed simultaneously. In that case, the American system
12
works out in the same way as the Belgian and French absorption-system in which only the
largest penalty is relevant. The latter system is only feasible if the maximum penalty for a single
crime is never given. If it were, committing lesser crimes later but before being caught, would
be 'gratis'. However, applying maximum penalties in cases of plural concurrence only does not
exclude that the price of an extra crime is considerably lower than it would have been had only
that crime been committed.
SD does not provide a satisfactory explanation for non-addition. Assuming so, would suppose
that the marginal deterrent effect of punishment is increasing, which is highly unlikely. Can GD
explain non-addition? I think it can. After all, if a person who has committed, say, five crimes,
is punished in the American way, that is cumulatively, it would be as if there is no difference
between one person committing five crimes or five persons each committing one crime.
Obviously, one's trust in the deterrent effect of the CLS is much more shocked when five
persons commit one crime than when one person commits five before he is arrested. To a
certain extent he was stimulated to commit more crimes as the criminal system failed to catch
him in time. Put in a context of justification in which the CL is not a device to appease the
individual victims of each crime, but also has the function to rehabilitate criminals (as will be
defended later), GD would seem to explain non-cumulation very well.
E. Recidivism
A higher maximum-penalty in the case of recidivism cannot be explained by retributive
considerations. Given the fact that an offender has a certain criminal disposition, there is no
reason to punish him more severely other than one's frustration about the ineffectiveness of the
earlier sentence. However, that frustration is based upon the SD-function ascribed to the
sanction, which is immaterial according to retributivism. Although SD would seem to provide a
plausible justification for the raising of maximum-penalties in the case of recidivism, it is not a
very convincing explanation. After all, if the maximum penalty was not applied the first time, it
would seem that the judge simply has failed to punish sufficiently then, and that the offender has
not got the deterrent support he needed. And even if he got the maximum, one might still say
that the legal maximum was apparently set wrongly. In fact, if special prevention were the
primary function of the CL, there would be no place for maxima. All would have to depend on
the strength of the criminal inclinations of an offender. But that again is totally incompatible
with the idea of criminal justice because the same crimes might then be punished very
differently depending on the judge's opinion of the character of each offender.
Appeasement of the victims can explain the legal doctrine of recidivism to a certain extent.
Victims may become more scared when they would know that the offender was not deterred by
having been punished before. They might feel safer when he is put away longer. However, from
a rational point of view such a fear would depend on a belief in SD. Moreover, appeasement of
victims is not a plausible ground in case of victimless crimes. Can GD do better as an
explanation? I think so. People convicted of a particular sort of crime will be, on average, more
prone to commit such a crime. The reason to believe so is not an unjustified believe in SD. In
fact, in case of imprisonment it would be more realistic to include the failure of SD as part of
the explanation of why convicted persons are more prone to commit crimes. Potential recidivists
represent a class that has proven to need, on average, more deterrence. It would be a form of GD
for a special group. Of course, one may question this explanation because one might think of
still more punishment after a second act of recidivism, etc. But that is an even more demanding
question in terms of SD. From the point of view of GD, a restriction to a one time rise of the
13
maximum-penalty might be defended on the basis of the assumption that extra punishment for
two or more time-recidivists would have very small marginal returns in deterrence and would
represent a waste in terms of spending the scarce means of the CLS.
The result of this analysis is that all the doctrines analysed are best explained by assuming that
GD is the primary function of the CL. The result of our analysis implies that both retribution
and SD drop out as possibilities for the logical reconstruction of the CL. However, although GD
was certainly the main function the reformers had in mind when introducing the classical model,
we still have to consider if GD is logically compatible with the principles of criminal justice.
After all, 'absolutists' have always claimed that the relativist view is incompatible with one or
more of the principles of criminal justice.
4. The principles of criminal justice
The concept of criminal justice consists of four interrelated principles.
The first principle is that punishment must follow a crime. If an act was not a crime at the time
when it was committed, there is no inner relationship between the act and its punishment, as
punishment only makes pragmatical sense if it can be known ex ante as a possible consequence
of the act (legality principle).
The second principle is that punishment can only be justified if it follows upon a criminal act for
which the person to be punished is accountable, and to the extent that he is accountable for that
act (the mens rea-requirement or proportionality between guilt and punishment).
The third principle requires equality. Two people who commit the same crime in terms of guilt
and seriousness, should be punished with equal severity.
The fourth principle requires proportionality between the seriousness of the crime and the
severity of the sanction.
Absolutists argue that relativists have no good reason to cling to the principles of criminal
justice, or at least not to all of them. The strength of these absolutist arguments is indicated by
the fact that a relativist of the stature of H.L.A. Hart saw no way around them. Hart gave two
examples of the incompatibility between criminal justice and the utilitarian demands of
deterrence21. The first one is that judges will often punish more severely when crime rates rise.
Obviously this is, at first sight at least, in conflict with the principle of equality. In fact, it is also
in conflict with the proportionality requirement, assuming that the earlier, more lenient sanction
was proportional. If judges would be just, they should, one might even argue, punish less
severely, as it is understandable that people will tend to commit more crimes as the deterrent
force of the CL is obviously declining when crime rates rise. If judges yield to utility in the
given example and punish at the expense of justice, Hart's second example is one in which the
opposite is the case.
H.L.A. Hart, Punishment
(Clarendon) 1968, pp. 24-25.
21
and
Responsibility,
Oxford
14
The mens rea-principle demands proportionality between guilt and sanction. That is why we
will not punish people who must be held to have been insane at the time when they committed a
crime. However, Hart wrote, there may be a utilitarian reason not to accept the insanity defence.
People who are not actually insane may speculate that they can get away with their crime by
pretending to be insane. Therefore, the possibility of the insanity defence might undermine the
deterrent effect of the CL22.
Because Hart saw no possibility to reconcile the conflict between utility and justice in the given
examples, he proposed a distinction between retribution as the theory of criminal accountability
and GD as the utilitarian theory of function, whereby retribution acts as a limit on deterrence.
Hart's proposal for a "mixed" theory must be regarded as very unsatisfactory within his general
utilitarian approach, as the distinction simply is a reformulation of the problem, not a solution.
However, not everybody has accepted this conclusion of Hart's.
Hans Crombag, a prominent Dutch psychologist of law, has suggested that Hart's concession to
retribution was unnecessary, because the principles of criminal justice can indeed be explained
in a utilitarian way23. According to Crombag, criminal justice can be explained in terms of the
psychology of learning. Guilt means, psychologically speaking, accountability. Accountability
means that the actor normally knows that the act is wrong and may be punished. Proportionality
between the seriousness of the crime and the criminal sanction can be explained as a necessary
demand for learning how to steer one's behaviour in view of the consequences. If the nature of
behaviour can no longer be related to sanctions or the size of sanctions, and the source of the
disturbance cannot be identified and be eliminated through aggression, a situation of "learned
helplessness" will be created. This can be demonstrated by punishing laboratory rats
capriciously. After some time they will retire into a corner of their cage and start squeaking
softly because they have become totally disorientated. In other words, according to Crombag,
our sense of justice in these matters reflects a cognitive-behavioural demand and taking it into
account is necessary to maximise the utility of the criminal sanction.
In my opinion Crombag's answer to Hart can be a part of the right answer, but only a part of it.
The psychology of rats is not necessarily the same as of humans. For instance, in the case of
humans I would doubt the necessity of a fixed relationship as a prerequisite of successful
learning. After all, many offenders only have a vague idea about that relationship when
committing their crime and, if hesitating at all, simply gamble that they will not be caught. In
fact, a fair amount of uncertainty as to the severity of sanctions, as is usual in practice, might be
more deterring on balance, because people in general (in contrast to typical gamblers) prefer to
limit their chances of a loss in comparison to an equal chance of a gain24. If humans may seem
It was precisely for this reason, as suggested by
Bentham, that it was almost impossible to be successful with an
insanity defense in 19th-century Britain.
22
Hans Crombag, Mens Rea, Inaugural adress-Leiden 1981,
Zwolle (Tjeenk Willink) 1981.
23
See D. Kahnemann and A. Tversky, 'Prospect Theory: An
Analysis of decision under risk', Econometrica 47 (1979), pp.
263-291. Criminological research has shown that people in
genereal tend to overestimate the severity of sanctions they
can expect when committing a crime.
24
15
to be less intelligent than rats in so far as they like to gamble, I am still inclined to believe in a
somewhat greater complexity and intelligence of humans. If Crombag believes his argument to
be a refutation of Hart's argument, he must assume that humans can understand why they are
punished differently when crime rates rise. I doubt whether rats are able to relate their own
behaviour to the behaviour of their fellows in such a way. I also doubt whether punishing insane
people would create problems for the learning process of sane people. It may be disturbing for
an insane person to get punished for a crime for which he was not accountable at the moment of
acting, although a cynic might argue that an insane person will not think so as long as he is
insane. However, after regaining sanity, he might understand the utility of being punished in
relation to feigned insanity defences 25 . Therefore, being punished may be very unfair to
someone who committed a crime being insane, but that would not exclude an understanding of
the rationality of the practice as explained by Hart. If this objection may still be judged to be
very speculative, the following is a very fundamental one.
I can agree with Crombag that the insanity defence is -psychologically speaking- based upon an
offender's exceptional insensitivity to the threat of punishment. Its cause can be that the
offender's had a crazy idea of what he was doing or that he suffers from a structurally absent or
highly reduced capacity to get activated by the threat of punishment. It would be understandable
that we would not punish people who are totally insane in the sense of the definition, but it
would not explain why we punish people less who are not totally insane. On the contrary, it
would be rational, it would seem, to punish those people more severely in order to deter them.
This would be no more difficult to understand than that judges punish more severely when
crime rates surge. Therefore, whereas the psychological theory of learning can explain criminal
proportionality to a certain extent, it cannot explain it completely, unless "justice" and learning
are related in a more complex, but as yet unexplained way.
5. The Janus-face view of the criminal law
5.1 Narrowness of the traditional concept of criminal justice
In order to find a solution to the problems we are dealing with, we should start by taking the
concept of criminal justice seriously. If we are talking "justice" indeed, what kind of justice are
we dealing with? Is it "private" or is it "public" justice. Once we ask this question, it may strike
us that retributivists would seem to think about criminal justice as private justice. The evil you
do to another person, will be done to you in the name of criminal justice. Obviously, relativists
aim at a public good to be secured through punishment. Whether that good can be realised with
more or less than would be deserved following the retribution-principle, is irrelevant. Obviously
also, if a relativist would be in need of a concept of justice at all, he should use a concept of
public justice. In other words, he would have to find the basis of his concept of criminal justice
in political philosophy and he should look at the place of the CL within the state as a political
community.
The more so as, as Crombag admits, insane criminals are
usually locked up for "treatment" for indefinite periods.
Understandably such treatment is usually experienced as a much
greater "punishment" than the criminal sanction properly
speaking.
25
16
It is most surprising, to use an understatement, that a political philosophical approach to the
problem of the justification of state punishment, has been advocated only relatively recently by
Ted Honderich26 and Nicola Lacey27. This is suprising simply because the word "justice" in
"criminal justice" would strongly suggest to explore whether the general concept of public
justice can explain the principles of criminal justice as an application of the general concept.
The simple notion of public justice is the equal treatment principle. In criminal matters this
principle would be as follows: each citizen has an equal right to be protected against crime and
each citizen should be treated equally when being punished for a crime.
I strongly agree with Honderich and Lacey that a philosophy of the CL which remains detached
from political philosophy is a sort of blind man's game. However, I disagree with their Rawlsian
and communeautarian background political philosophies, which create new problems for the
justification and explanation of criminal justice. Honderich and Lacey operate with too general
and too vague concepts of equality and social community. Honderich and Lacey did not get to
their conclusions via the embarassingly simple reasoning I have just followed. In fact, their
advocacy of political philosophy is based on their conclusion that the CL would be a much too
complex phenomenon to reduce it to the simple notion of public justice.
By contrast, that simple-minded direct approach is what will be followed here. The reason why
this proposal might seem to be hopeless and why it was never even persued, is that the
utilitarian's primary concern of criminal punishment is effectiveness whereas inequality and
disproportionality would seem to be required if (equally) effective deterrence would be the aim.
Differently from "pur-sang" utilitarians I will not claim that the principles of public justice can
be reduced to their effectiveness in furthering some pre-ordained natural good or that justice can
be completely reduced to some principle of learning that produces order. Both effectiveness and
the possibility of learning are important to realise public goods in an ordered society. However,
neither of them is a value in itself that can explain justice. In my view the principles of justice
are ultimately based on an irrational preference for peace and rationality. The two problems we
will have to consider, then, are the following: 1. can the equal treatment principle be extended to
the sphere of criminal justice; 2. is that extension compatible with the four principles of criminal
justice as outlined in section 4?
When discussing Hart's case of more severe punishment in reaction to rising crime rates, I
pointed out that we might even speak of a double injustice. Not only were people punished more
severely than others, they would also be treated unequally because the deterrent effect of
punishment would be less when crime rates rise. We can speak of a double injustice on the basis
of an intuition that criminal justice has two sides. It would be wrong to look at punishment as
just a process in which the criminal is used to deter other members of society. Apart from the
fact that he himself may profit from being punished by being deterred from committing crimes
again, an at least as important aspect of being punished is rehabilitation.
Criminal justice, seen in this way, has two faces, like Janus, the double-faced Roman god of
doors and porches, who looks into the past and the future at the same time28. The past-orientated
26
Ted Honderich, O.c., p. 237.
27
Nicola Lacey, O.c., p. 169.
28
Are
his
contemporary
terrestrial
colleagues,
the
17
face of the CL is concerned with the reinforcement of the GD-effect of the threat of punishment
that has been weakened by the offense. On condition that this tribute to the past is paid, Janus
will open the door to the future in which the offender can reappear as a rehabilitated citizen.
This "Janus-face view" of the CL would seem to understand criminal punishment of the
offender as the price, in the form of a functional retribution, to be paid for his rehabilitation as a
citizen.
In fact, a basis for this view can be found in the very work of H.L.A. Hart himself. In his theory
of the Minimum Content of Natural Law, in the ninth chapter of The Concept of Law, Hart
presented a number of truisms about man, the world and society. One of them is man's limited
understanding and strength of will. It is this limitation, according to Hart, that makes the CL a
necessity for the survival of society. However, the fact that the truism, by its nature, applies to
practically every man, implies that the CL is not only a necessity of collective survival. It is also
a necessity for the potential offender that practically everybody is, as it scares off crime and also
provides a way to get reconciled with society in the form of criminal punishment when its
deterring effect fails.
The idea that the CL serves everybody's interest in both its preventive and its rehabilitative
functions is in conformity with modern criminology. It has taught us that most crimes are not so
much a matter of psychological character 29 , but predominantly a matter of variable social
relations, chances and environment. Under those circumstances permanent exclusion of
offenders from society is simply too expensive and too inefficient as a general solution for the
problem of crime. However, the Janus-face view is not exclusively modern. It can claim ancient
roots in Stoicism, as in Seneca's De Clementia, in which he argued for human solidarity and a
reconciliatory attitude in the face of the universal human weakness of character.
The Janus-face view is a functional theory of CL within the broader framework of a political
theory. It explains the CL as a device to cope with the problem of the general human proneness
to crime in an efficient way, following the general principle of public justice. Each citizen
should equally benefit from the CL (by being protected by the state against crime or by being
rehabilitated after having been punished) and each citizen should be equally charged for the
service of the CL (as a tax payer or as an offender). The four principles of criminal justice that
we have discussed so far, only regard the principle of equal charges for offenders. The Janusface view of CL has a broader concept of criminal justice that will now be shown to enable it to
refute the thesis that relativism is incompatible with the traditional criteria of criminal justice.
5.2 A refutation of the incompatibility thesis
janitors, still
profession?
aware
of
the
supernatural
origin
of
their
However, modern psychology has made it very plausible
that psychological factors are very important in the case of
the "dangerous few", the proportionally small group that is
responsible for an important part of the most serious forms of
traditional adult crime. See Anne Moir and David Jessel, A Mind
to Crime, the controversial link between the mind and criminal
behaviour, London (Michael Joseph) 1995.
29
18
The Janus-face view is compatible with the legality-principle. Its argument for the legality
principle is simple. It is unjust that citizens are charged for things they could not know in
advance they could be charged for. Moreover, as a functional theory it accepts the psychological
unwisdom of "punishing" acts that could not be known to be illegal and punishable.
Nevertheless, the Janus-face view cannot accept all psychological insights concerning the
greater efficiency of punishment. For example, I had argued against Crombag that a certain
degree of uncertainty concerning the severity of punishment would make its deterrent effect
greater rather than smaller. However, this would be in conflict with the equality principle. This
general equality principle demands that the charges and profits of public services are distributed
equally. As a public service the CL is subject to this principle.
The Janus-face view can also deal with Hart's problem in connection with the guilt-principle
and the insanity-defence. As insane people as defined above are not, or much less, able to profit
from the deterrent effect of the CL, the price that can be expected to be paid by them must also
be proportionally less.
It may seem as if there is an inconsistency between, on the one hand, punishing insane people
less or not at all, because they can profit less from the deterrent effect of the criminal sanction,
and, on the other hand, punishing recidivist more for the very same reason. However, an insane
person does not know himself to be insane at the moment of acting and would not realise that a
more severe punishment can be expected, or, if he does, he may be structurally insensitive to
that fact. However, a partially insane person can know quite well that he has been punished for
the same act before and should expect a more severe sentence. A partially insane recidivist may
also be punished proportionally more severely therefore. However, is punishing recidivists more
severely compatible with the equality and the proportionality principles
We have already argued above that punishing recidivists is certainly incompatible with a
retributivist view of the CL. Our justification from a GD-functional perspective was that people
who have already committed a certain crime will be, on average, more prone to commit such a
crime. By raising the maximum-penalty in case of recidivism this class of offenders may also
profit more from the sanction preventively. The scales of CL-justice remain in balance,
therefore, as far as the equality principle is concerned. However, what about the proportionality
principle? Is the damage caused by a recidivist crime also greater than the same crime
committed by a first offender? Not as far as the damage to the rights of others is concerned.
However, there obviously is a difference in so far as the GD-effect that has been damaged and
has to be repaired is a greater one. In that respect, a recidivist crime is more serious indeed. In
fact, in principle the size of the increase in the severity of punishment should be such that the
crime rates of potential recidivists remain the same as with potential first offenders. If there is
no difference between the chances of committing a crime between the two classes of potential
offenders, it is wrong to punish recidivists more severely.
The more general problem of the compatibility between GD and the principle of equality is not
so easy to solve. Can the Janus-face view justify the fact that judges will start punishing more
severely when crime rates rise? The reason that a judge would feel the need to punish more
severely in that situation would be that he believes that punishment no longer deters as much as
it did before and that extra deterrence may compensate this. Is punishing more severely in this
situation doing the same as what a judge does when he punishes recidivists more severely? In
fact, it is not. Our justification for punishing recidivists more severely was, as far as the equality
principle was concerned, that recidivists would also profit more from a greater threat of
19
punishment preventively. Provided then that, in order to respect the legality principle, the rise in
the severity of punishment would be announced beforehand, the problem of the equality
principle could be solved. However, a greater severity of the sanction would still be in conflict
with the proportionality requirement. Someone who commits a crime in a period when crime
rates rise, does not necessarily cause more marginal damage to the GD-effect of the CL than
someone who committed the same crime before. The difference with the case of recidivism is
that we had stipulated that the rise in the severity of the sanction would depend on the existence
of a greater marginal damage to the GD-effect.
Now that the comparison with recidivism has been shown to fail, another, more promising
comparison can be made. Punishing the same crime differently depending on the GD-effect that
can vary at different moments in time, would seem to touch upon the same problem as that
different crimes of equal seriousness will often not be deterred as well if both would be
punished with equal severity. This is nothing but the fundamental problem of criminal justice
that retributivists have confronted relativists with. Are we not forced to the conclusion that we
must give up the proportionality requirement if we would like to have effective deterrence? No,
in the framework of the Janus-face theory we are not.
The Janus-face view demands, on the one hand, an effort of the state to equally protect its
citizens against crime, and, on the other hand, a just and equal treatment of the citizens which
break a CL. For both parts of this task the principle of equal charges and equal profits is valid.
Equal protection is a function of the seriousness of crimes and the chance of becoming a victim
of crimes. On the other side, the side of the citizens that commit crimes, a right can be claimed
to be punished in accordance with the seriousness of the crime that has been committed.
Sticking to the proportionality principle implies that punishment can have a different GDrepairing effect with different crimes that differ in kind but are of equal seriousness. However,
this difference corresponds to a difference in the marginal GD-damaging effect of a crime.
Therefore, damage and repair remain in balance. However, assuming equal chances of
becoming a victim of both sorts of crime, citizens would not be equally protected against those
two sorts of crime. The implication is that if one wants nevertheless to create a balance in the
level of protection, one should look for other means than the threat of punishment to protect
citizens from crime. Obvious means for such compensation are police activity to arrest more
offenders, subsidising programmes and technical means of crime prevention, reforming
criminals were the cost-efficiency of doing so are high, and, finally, compensating victims for
costs not covered by normal insurances against crime.
Does our solution for the problem of the proportionality requirement not also provide an answer
to Hart's problem concerning the equality principle? Yes, be it a negative answer. Punishing
more severely, assuming that the present level of the sanction is proportional, is wrong as a
reaction to a rise in a particular crime rate. However, it would seem that Hart implicitly assumed
that a judge has no alternative but punishing more severely. Even if this were true, the judge's
only alternative is not the CLS's only alternative. The consequence is that we have to reject the
practice that was used by Hart as an argument for his incompatibility thesis. This is not because
it is in conflict with the equality principle, but because it violates the proportionality principle.
Our conclusion notwithstanding, there is one cause of rising crime rates that can be regarded as
making those crimes themselves more serious. In that case, punishing more severely can be
compatible with the Janus-face view.
20
5.3 The paradox of the seriousness of crime
The cause of raising crime rates is not only that for whatever reasons a crime has become more
attractive. It can also be that at least a part of the increase is due to a public depreciation of the
seriousness of a crime. Thus a paradox is created because a lack of public appreciation of the
seriousness of a crime may make it more serious in reality.
An excellent example of such a paradoxical process of depreciation is what I like to call the
"black bicycle plan" in the city of Amsterdam. The Provo's, a movement of young anarchists in
the mid-sixties, proposed a "white bicycle plan" to increase the efficiency of the use of bicycles
and to curb the desire to steal bicycles. The idea was that the community would provide white
painted, simple but strong bicycles, in such quantities that one could practically always find one
standing nearby when necessary. Instead of this utopian, white plan, a black "plan" was realised
without any government interference, or better, thanks to an almost total lack of such
interference. Stealing bicycles became so frequent and many people became so annoyed after
their fourth or fifth bicycle had been stolen in a relatively short period, that they felt almost
"justified" to steal one back themselves. This sense of justification was reinforced by the police
who had almost given up doing anything against bicycle thefts. If one was lucky they were
willing to register a theft for insurance purposes. The consequence was that the average quality
of bicycles decreased because people were too afraid that a good bicycle would be stolen, the
more so as it became very difficult to get a bicycle insured. Obviously, the morality of and
respect for private property became seriously eroded.
One can imagine that a judge would like to do something about this discrepancy between the
real and the perceived seriousness of stealing bicycles. A judge might announce his decision to
punish more severely than he used to do formerly in order to signal that the erosion of values
can no longer be tolerated. In doing so the judge would hope to create a shock in the public
consciousness created by a belief that bicycle-theft will henceforward be taken seriously again.
Would such a policy of criminal punishment be reprehensible in view of the equality principle
and/or the proportionality principle?
The reason that such a policy can be seen as compatible with the Janus-face view is that when
crime rates increase significantly, a crime is more serious indeed when it is caused by a
misperception of the seriousness of a crime. In fact, we hit upon a factor of crime causation that
can justify a differentiation in the severity of sanctions even in individual cases, that is without a
rise in crime-rates. A crime that not only expresses the weakness of character of the offender but
also a serious want of appreciation of the interests that are protected by the CL, is more likely to
cause damage to its GD-effect as it sets an example of committing crime for frivolous reasons.
Therefore, it is also not true that an interest for the moral character of an offender and margins
of judicial discretion to determine the severity of sanctions are out of line with a GD-functional
approach of the CL.
However, in the case of rising crime rates it may be very difficult to know to what extent
surging crime rates are due to a change in the attractiveness of a crime or to a changed
perception of the seriousness of a crime. A change in attractiveness may even be the most
important cause of such a change in perception. Moreover, the state itself may be responsible for
the rise in crime rates when it has been to slow in counteracting increased attractiveness of a
crime through other means than increasing the severity of sanctions. Practically speaking then,
the possibility of success of the questionable practice of punishing more severely to cause a
21
reversal in the public appreciation of the seriousness of a crime, may crucially depend on
increasing arrest rates at the same time. Moreover, if the policy is not successful in correcting a
general want of appreciation of the seriousness of a crime and in reducing crime rates again, it
can no longer be justified, whereas, both when it has caused a reversal and when it has not, it is
very difficult to lower the severity of punishment again once it has been raised. The reason is
that judges usually fear that punishing less severely is interpreted as a message that a crime
should no longer be taken so seriously. This explains why it has often been observed that
severity of punishment is sticky downwards. Therefore, the policy of punishing more severely
should only be used under circumstances nearing an emergency situation. It should certainly not
simply be accepted as uncritically as Hart did. However, with all these proviso's, it can be
defended within a political philosophical context in which public authorities are not only
responsible for the protection against crime, but also for what Durkheim would have called the
"conscience collective" concerning the values protected by the CL. It would be foolish to deny
them that responsibility because, as David Garland wrote: "if punishments (and the threat of
punishments) were routinely imposed but were entirely ineffective in containing crime, then this
could undermine the claims of the moral order and the political powers which pose as its
guarantor".30
5.4 The Janus-face view as a critical theory
The Janus-face view can claim to integrate retribution and prevention within a coherent
relativist theory of justification. Moreover, that it can is due to the fact that the theory itself has
been integrated into the more general political theory of the principles of public distributive
justice. These two theoretical values are not all it can claim. It can also be fruitful as a modern,
criminologically orientated critical theory. It raises important questions like to what extent the
principle of equal protection against crime is actually realised. It offers a new framework to
make judgements about the use of discretionary powers of judges, public prosecutors and the
police. The theory also integrates the historically speaking recent interest in victimology. In so
far as particular crimes cannot be prevented as well as others or particular people cannot be
protected against crime as well as others, there is a justification for extra expenditures for the
support of victims of crime. Moreover, the issue of class justice is transformed because the
theory makes class justice against the victims of crime as important an issue as class justice
against offenders.
However, the Janus-face theory also has something to offer to offenders, because rehabilitation
is the other side of the Janus-face. Therefore, structural secondary effects of punishment should
be taken into account when the severity of sanctions are considered and especially so if these
secondary factors are also criminogenic. The compensation of criminogenic factors, including
stigmatisation, may justify special benefits, like job training, temporarily guaranteed housing
and employment after punishment, etc., provided, of course, that such facilities will not have an
important anti-deterrent effect themselves.
6. Discipline and punish: a pre-classical inheritance
David Garland, Punishment and Modern Society, Oxford
(OUP) 1990, p.60.
30
22
6.1 The unexplained nature of rehabilitation in relativism
Is it the complexity of the Janus-face theory of the CL that explains why it never found
expression in the period when the classical model established itself? After all, the Janus-face
view is very much in line with the humanitarian, reconciliatory spirit of Beccaria's foundational
work on the one hand, whereas its GD-functional approach is close to the technical-systematic
spirit which pervades the work of both Feuerbach and Bentham. The reason, I think, why the
two aspects never became integrated in a satisfying way, is not the complexity of the matter.
The reason is, I will argue, of a philosophical kind. Beccaria and Feuerbach developed their
ideas within the framework of social contract thinking, whereas Bentham, by contrast, operated
in the almost anti-philosophical spirit of naive empiricism, an empiricism that was pretty
speculative in reality.
We have seen that retributivist theories were unable to cope with the differentiation between
morality and law that was actually introduced with the establishment of the classical model of
the CL. I will now argue that the early relativists were equally incapable to cope with that
differentiation. They never differentiated consistently between GD and SD. The latter, I will
argue, played a hidden role in their theories. In fact, it is SD, or, to be more precise, the
assumption of a reforming effect of criminal punishment upon the offender, which explains why
they were not much concerned to explain why criminals should have the right to become full
citizens again. The reason why they could not include the retributive element into their theories,
as the Janus-face theory does, is that they did not have GD on both sides of the account of guilt
and punishment, but GD and SD. If the damage that is to be repaired is GD-damage, its
reinforcement through punishment can settle the accounts. However, SD cannot do that unless
the SD-effect of punishment would always be greater or equal to the GD-reinforcing effect.
However, that is not very plausible31.
6.2 The absence of imprisonment as a sanction with Beccaria
One can see the influence of metaphysics with Beccaria already, although he was much too
confused to allow it to be a more systematic influence. The only natural form of punishment,
following Beccaria, is being excluded from the social contract, at least temporarily32: "Anyone
who disturbs the public peace, who does not obey the laws, that is, the conditions under which
men agree to support and defend one another, must be excluded from society - he must be
banished from it." It points to the novelty of imprisonment as a criminal sanction in the
eighteenth century, that it occurred to Beccaria only as a means to detain arrested people in the
phase of the criminal investigation. Nevertheless, if banishment were the natural sanction but, as
was often the case in Beccaria's time, was no longer possible in practice or seen as
disproportionate as a general sanction on crimes, it would have been natural to see
imprisonment as a form of internal banishment.
It is important, in this connection, not to confuse the
SD-effect, with the sometimes considerable preventive effect of
incapacitation.
31
Cesare Beccaria, On Crimes and Punishments, Indianapolis
(Bobbs-Merill) 1980, p.53.
32
23
It is puzzling why Beccaria did not come to this conclusion. This is all the more so, as the other
sanctions he considers would seem to be highly dubious in the light of his own views on the
criminal sanction. Notwithstanding the great success of his book, they were pretty incoherent. In
the case of theft, Beccaria considered fines to be the most appropriate sanction. It shows his
incoherence that the argument he gave for this, follows the logic of retribution: "Whoever seeks
to enrich himself at the expense of others should be deprived of his own"33. However, he then
continued, theft is usually committed by people who are very poor and taking the little they
possess would make them only more criminal and would also mean punishing their innocent
dependents. Therefore, forced labour "through total personal dependence" will have to replace
fines. However, it is difficult to imagine that this would be possible without imprisonment.
Notwithstanding his principle that the least possible torment on the body should be inflicted34
and notwithstanding his perceptive observations concerning the negative effects of
"brutalisation" in the case of the death penalty, Beccaria stated without any further argument
that the penalties for crimes against the person "should always be corporal punishments"35. The
fact that he did not dwell to tell the reader what these corporal punishments should consist of,
indicates that he had a sense of his own inconsistency. Again, however, the logic of his
argument, had he been more coherent, would have driven him to imprisonment, because
imprisonment is a corporal punishment, but is not cruel in a directly physical sense. The reason
why Beccaria may have shrunk from making imprisonment central in his theory of the criminal
sanction, is that he clearly associated it with the hell holes that existed in his time, albeit as
places of criminal investigation. The fact, as he pointed out, that people were punished there
before their guilt had been established, must have made him fearful that imprisonment and its
secondary consequences could never become a proportionate form of punishment. A view, it
must be conceded, which is very realistic even in some modern countries were imprisonment
must be feared less for the loss of one's liberty, but rather for the risk of being beaten, raped or
murdered by inmates or guardians.
When reading arguments like these one may suspect that philosophical motives determined
Beccaria's speculations, but not always explicitly. After all, banishment may hurt dependents
much more than a fine, whereas a state might not only have a financial interest in fines (another
counter-argument Beccaria brought up against fines), but also have an interest to commit people
to forced labour. One wonders then whether Beccaria's unexpressed reason to be against fines
was not that it is strange to divest someone of that which he had lawfully acquired already.
Forced labour "in total personal dependency" is primarily loss of freedom and an unfree person,
a slave, is owned by someone else and does not produce anything that belongs to himself. An
explicit philosophical argument can be found in Beccaria's argumentation against the death
penalty. Nobody, he wrote, would agree to give the state the right to execute him as part of the
social contract36.
33
O.c., p. 74
34
O.c., p. 42.
35
O.c., p. 68.
Kant convincingly rejected this argument as, in his
retributive view, "consent" is given in the act of murdering
itself. The only thing that, according to Kant, is transferred
via the social contract is the right to take care of the
execution of murderers privately.
36
24
6.3 The prison as social therapy with Feuerbach and Bentham
With Feuerbach we also find that he thinks of imprisonment as the "foundation of every wellordered criminal law"37. Feuerbach did not reject the death penalty, but thought it to be an
aequate sanction only in case of offenses against the existence of the state or in cases of murder
that he thought would disqualify an offender ever to become a citizen again. Fines, he reserved
for crimes committed purely for material gain, although they would have to be replaced by
forced labour when an offender had no means from which to pay the fine. They are, subjectively
speaking, not crimes to hurt another person, but they have that effect. In most other cases in
which a personal-emotional motive was behind the crime, imprisonment would in his opinion
be the right sanction, because the essence of the threat of imprisonment is that of
dehumanisation, of being without the others whom the offender has shown to be inclined to
hurt. The prison is supposed then to mobilise through social isolation feelings of sympathy for
others to compensate the feelings of hate which have driven the offender to commit his crime.
There was clearly a link between the central place of imprisonment in Feuerbach's theory of the
criminal sanction and his background in social contract thinking. In his "Anti-Hobbes"
Feuerbach had argued that the aim of the state is precisely to protect the freedom of its citizens
which is in permanent danger in the state of nature, because everybody sees in everybody else a
potential aggressor. Therefore, he argued, if the state itself would not be bound to the law, the
situation might even get worse. The prison is a situation in which Leviathan does not have the
right to kill, but has total control over its citizens otherwise. It is therefore the Hobbesian halfway station between the war of everyone against every one and the rule of law. The prison
teaches the citizens the value and love of freedom.
With Bentham, finally, the prison in the form of his Panopticon stands out as a means of
disciplining. Disciplining in Bentham's view means psychological conditioning of people to the
advantages of a regular life of labour and obedience to rules. However, before a prisoner is
ready for reform he must be socially and even sensorially isolated38. Although Bentham rejected
natural law and social contract thinking, he clearly believed that an artificial experience in
prison with Hobbes' "solitary, nasty and brutish" life in the state of nature would be most helpful
to let an offender see the blessings of a civilised, law obedient sort of life. Thus Bentham
thought very much along the same lines as Feuerbach and this is also true in relation to his ideas
about the death penalty.
6.4 The metaphysical relation of punishment and discipline
The emphasis on imprisonment in the classical model is something which has lasted until this
century. It is remarkable, for instance, that the enforcement of the payment of fines was only
introduced in this century in several countries, whereas imprisonment remained as an alternative
if a fine was not paid39. The social contract and state of nature background of this focus upon
P.J.A. Feuerbach, Kritik des Kleinschrodschen Entwurfs,
Band II, 3. Teil, Giessen 1804, p. 132.
37
38
See L. Radzinowicz, O.c., pp. 391-93.
39
See H.H. Jescheck, Der Einfluss der IKV und der AIDP auf
25
imprisonment was also apparent in the fact that, until long into this century, prisoners used to be
deprived of their political rights for at least their term of imprisonment. The way the founding
fathers of the classical model dealt with the death penalty and their background ideas in relation
to imprisonment, shows us that they were still thinking along metaphysical lines, however
modern and empirically orientated they pretended to be.
The central place of imprisonment in the classical view of the CL against the background of its
earlier uncommonness, is something which Michel Foucault has interpreted as "based first of all
on the simple form of 'deprivation of liberty'". It is, Foucault wrote, "a good that belongs to all in
the same way....Its loss has therefore the same value for all; unlike the fine, it is an 'egalitarian'
punishment" and, very interestingly for our analysis of the relationship between crime and time,
Foucault remarked that "there is an economico-moral self-evidence of a penalty that metes out
punishments in days, months and years and draws up quantitative equivalences between
offences and durations"40. Foucault clearly saw the metaphysical factor behind the central role
of imprisonment in the classical model. Surprisingly, however, he did not see the metaphysical
connection between the calculus of freedom and disciplining in the classical CL. We can
understand this, however, now that we have seen why the founding fathers of the classical
model thought that punishment would make an offender suitable to enter society again. The idea
that the criminal sanction reforms the offender was its implicit premise. Therefore the
combination of disciplining and punishment in the classical model was not just a matter of the
opportunity the prison offered for disciplining, as Foucault has suggested41.
Although the fathers of the classical model manifestly focussed on GD as the primary function
of the CL, reform of the offender remained part of their construction of the CL as an explanation
of why the offender could return as a full citizen after having been punished. The real 'paradox'
is, then, that the founding fathers did not think in a radically temporalised-functional way, but
that they kept thinking of criminal punishment as a means to reform the very nature of man. In
that approach one recognises the state of nature and/or social contract-theoretical background as
well as the secularised motives of fall and redemption which pervaded the Enlightenment in
both its deistic and its romantic forms42.
Put into that metaphysical and crypto-religious perspective, the focus on imprisonment, on
"doing time", can also be understood in terms of our analysis of modernisation as radical
temporalisation. Prison is the secular, temporalised form of God's hell, the anti-world of heaven,
die internationale Entwicklung der modernen Kriminalpolitik,
Zeitschrift für die Gesamte Strafrechtswissenschaft 1980, p.
1002.
40 Michel Foucault, Discipline and Punish, The Birth of the
Prison, New York (Vintage Books) 1979, p. 232.
41
Michel Foucault, O.c., p.233
The deistic, individualist-liberal form appears already
in Locke's Two Treatises, whereas the gnostic-romantic,
communitarian form manifests itself in Rousseau's Du Contrat
Social. Interrestingly, after the victory of liberalism over
communism Fukuyama's The End of History appeared, an idea which
has its roots in the same body of secularised religious ideas.
42
26
where instead of eternal happiness there is eternal pain and suffering. A criminal is basically
seen as someone who cannot cope with time in life. In prison, he will, on the one hand, lose all
sense of time in relation to the real world. However, it will also teach him the sense of time,
because the temporal routines of the prison are the only thing which mark the difference
between reality and the emptiness created by total isolation and sensorial deprivation. In the
imagination of the classics it is in the isolation of his cell, and the "operationally closed system"
that is the prison, that the offender must try to find his way back to his better self, his
consciousness as a human being who can cope with a temporalised social order and the
discipline that it demands from him. Whereas the Enlightenment isolated the temporal world
from the eternal world, it also created its functional equivalents within the temporal world.
Whereas prison represents hell, society in its ever increasing progression represents heaven.
6.5 The classical model and the death penalty
The problematic nature which the death penalty had in the classical model can also be better
understood against this background. The death penalty marks the dividing line between the
reformable offender and the "deadly" sinner. However, the death penalty cannot be understood
very well any longer in a temporalised world precisely because it puts the offender out of time.
As punishment has become something which happens in time, the death penalty can no longer
be understood as punishment. Of course, the prospect of that punishment can cause tremendous
fear, but that is not what the death penalty is about, because it would make its actual execution
unnecessary. However, with its actual execution, there is no offender left to suffer, because in a
secularised world, where heaven and hell after life no longer figure, it is assumed that death puts
an end to all suffering. The death penalty therefore becomes a criminal paradox in the classical
model. However, since the classical model also operated with the state of nature/social contract
(civilisation) difference, it could go on thinking about the death penalty as penalty, even though
it makes no sense in terms of punishment and reform. Of course, the discussion about the death
penalty is not over once the metaphysical scales are really dropped, although it would be better,
following the Janus-face view, to simply call it incapacitation through execution, because then it
no longer has anything to do with punishment indeed.
Another reason why the death penalty became so problematic in the classical model is that it
degrades man to the status of an animal. This is because it submits him to the most bestial,
irresistable instinct there is, the urge of survival. Beccaria argued very perceptively that the
death penalty, like corporal punishment, is a form of brutalisation that risks provoking
corresponding responses and behaviour in society 43 . Keeping those sanctions brought the
classical fathers dangerously close to the criminal legal practices of their feudal opponents.
7. The absolutist justification of the criminal law and its hidden virtues.
7.1 Purified absolutism
In fact, this one of the
arguments of the antagonists to the
because it provides an explanation
proof that the death penalty has a
imprisonment.
43
empirically best supported
death penalty in the U.S.A,
of why we do not find any
more deterrent effect than
27
After having argued that the relativist model is fully compatible with the classical model of the
criminal law, both reconstructively as well as philosophically, we have still not dealt
conclusively with the absolutist model. I have argued that absolutism is incompatible with a
number of important features of the classical model. Furthermore, the Janus-face view is a
refutation of the absolutists' claim that the principles of criminal justice are incompatible with a
relativist view. However, an absolutist who concedes that our criticisms of absolutism were
justified, might then make a dramatic move. He might argue that the existing criminal law, in so
far as it is incompatible with absolutism, is philosophically unjustifed and should be reformed.
Thus, impossible crimes, attempts and recidivist's crimes would have to be punished as severely
as ordinary crimes. Statutes of limitations must be abolished and sanctions should accumulate in
case of plural concurrence. Finally, in order to respect the equality principle strictly, rising crime
rates should no longer be met by more severe punishment, but rather, following our principle of
equal protection against crimes, by putting more money in other means which can reduce crime
rates.
Against such a purified absolutism I would now like to argue that it is also incoherent for
philosophical reasons. The main reason to have a look at (early) absolutism, however, are not its
incoherence, but certain qualities that were better represented in it than in relativism, notably,
the integration of the theory of the criminal within political philosophy. Together with a hidden
metaphysics of classical relativism (next section) this may explain why theories like the Janusface view were not developed even though this view is quite compatible with the social contract
view 44 which people like Beccaria and Feuerbach and so many other relativists (but not
Bentham) adhered to.
My analysis will be almost completely restricted to a critical review of the theories of the
founding fathers of modern absolutism, Kant and Hegel. With one exception, I will not review
the many later variants of absolutism, because I believe they all suffer from the same
fundamental defect as the theories of the founding fathers. They all believe that the justification
of criminal legal punishment is to be found in morality. However, doing so it becomes
impossible to explain why not all immoral or at least all illegal behaviour should be punished by
the law. This objection can also be made against the one exception on my restriction to the
founding fathers of absolutism, the theory of Leo Polak (1880-1941). However, he improved
upon the theories of Kant and Hegel, because he took the problem of the operationalisation of
retribution seriously. This might not have been a sufficient reason yet to trouble the reader with
his rather complicated theory. However, what makes his operationalisation particularly
interesting is that it has structural similarities with both Rawls' theory of justice and the JanusNote that I have based the Janus face view within a
"functional" theory of natural law borrowed, to a large extent,
from H.L.A. Hart. However, a social contract element is
involved in that theory in so far as it is a theory which
claims validity for everybody who prefers peace over war under
the condition that no more than Hart's truisms are acknowledged
as premisses for the justification of restrictions on
individual freedom. Differently from pure social contract
theories it does not claim to have a moral reason why peace
should be prefered over war. In fact, someone who prefers peace
over war is usually not so dogmatic not to stay peaceful
notwithstanding the fact that collectivities demand much more
from him than he would agree with on theoretical grounds.
44
28
face view. As Rawls theory of criminal justice resembles the janus face view again, it will also
give us an occasion to explain the differential foundations and consequences of Rawls' concept
of (criminal) justice and the Janus-face view.
7.2 The political nature of early modern absolutism
The 'quia-peccatum' as a sufficient condition in the absolutist view of the criminal sanction does
not imply that an absolutist would have to think that the social functions of criminal punishment
are unimportant. Even Kant, who stated that if society would come to an end tomorrow, we
should nevertheless still hang the last murderers today, defended his theory within the context of
a particular political philosophy. It was essential, according to Kant, that criminal punishment
would be a public punishment, an expression of collective reason in a criminal procedure that
should demonstrate why a particular offender deserves a particular punishment. In his view
criminal punishment should be a public responsibility as a confirmation of what, one hundred
year later, Emile Durkheim, a (sociological) Kantian45, was to call the 'conscience collective'. In
fact, in the Kantian view the state has to take care of this responsibility in order to maintain the
social contract that justifies the state's existence. If the state would fail to do so, the victims of
crime might claim back their natural right to self-protection. However, at this point the
incoherence of the Kantian position appears.
According to Kant, the use of force for the protection of each individual's freedom is what
differentiates law from morality. The use of force is justified on the basis of the 'Juridical
Imperative' (JI). Following the JI one should act in such a way that each person's freedom is
compatible with the freedom of all other persons. The JI is, according to Kant, a logical
implication of the 'Categorical Imperative' (CI). According to the CI a moral being is obliged to
act according to a maxim that is valid for any moral being. In other words, a morally good act is
one in which no distinction is being made between self-interest and the interests of others. It
does not imply that one may not act in one's own interest if that is hurtful to the direct interests
of another person. Competitive behaviour in the market, for instance, may hurt the direct
interest of another person, whose enterprise may go bankrupt. However, such competitive
behaviour is in conformity with the CI because it is beneficial for people in general and is
expected, in principle, from every competitor in the market, including the unlucky ones who go
bankrupt but have voluntarily taken that chance.
The JI is a necessary condition of the CI, because one cannot follow the CI if one is not one's
own master and if one can not dispose of one's means. However, the JI is just a necessary
condition. According to Kant, immoral behaviour that does not constitute a violation of
someone's possibility to act as an autonomous being, cannot be an object of legal (criminal)
regulation 46 . Punishment for immoral acts which are not illegal can only consist in moral
See S. Lukes, Emile Durkheim, his life and work, Stanford
(Stanford U.P) 1985.
45
This is the background of the Kantian idea that the law
is only concerned with the external side of human behaviour. It
does not mean that the law is never interested in the motive of
behaviour. The law must be if similar outward behaviour can be
interpreted as legal or illegal or as this or that sort of
legally relevant behaviour.
46
29
censorship. However, moral censorship can take the form of civil legal acts, e.g. disinheriting
someone.
7.3 Criminal functionality and political morality
Because Kant thought in terms of a social contract, one can approach the question of the
justification of the criminal sanction by asking whether the retributive principle is also valid for
punishment in the state of nature. In the state of nature, punishment at one's own initiative
would seem to be justified only if its aim is to protect one's own rights or the rights of one's
dependents. But this raises three questions concerning the relationship between the CI and the
JI. What if effective protection of one's rights demands sanctions that are more severe than those
which can be defended on grounds of retribution? What if legal measures to morally hurt the
offender have already consumed all or much of the allowable space for punishment? Finally,
what if criminal sanctions are sufficiently effective which are less severe than the punishments
that might seem to be deserved from a moral point of view?
It would seem that the identity between moral beings that is assumed by the CI is incompatible
with the functional rationale of the JI if the effective deterrence of offenders would require
punishment above the maximum amount of suffering that an offender deserves from a moral
point of view. As to the third question, there is, in the state of nature, no duty to punish
criminally with less severity than would be allowed from a moral point of view, simply because
there is, also according to Kant, only a right to moral punishment and not a duty. The question
to be raised then is why this would be different after the social contract has been concluded
according to which private persons transfer their powers to punish the state. That the state
should always act according to the principle of talio is clearly what is implied in Kant's famous
statement that murderers should still be hanged at the eve of a society's existence.
The answer to be given from the Kantian point of view is, I think, the following. The state is
based on the social contract which is a contract between autonomous beings. Therefore, the state
must assume that a crime committed by a citizen is a principled form of behaviour also. In fact,
Kant assumed that an offender is setting a norm indeed. In Kant's view an offender is not simply
driven by his immoral desires, but he is also supposed to deny the validity of the norm he
violates. Kant used the assumption of the norm-setting offender to deduce the talio-principle as
expressing the respect of the state for the criminal as an autonomous being. Thus, as e.g. a thief
is supposed to set a norm that stealing is allowed, the state will respect him as an autonomous
being by following that very same rule when punishing him, that is "steal" from the thief.
However, this view leads to an absurd consequence, because the state, by doing so, could no
longer argue that stealing is wrong. This absurdity was taken away in Hegel's dialectical
interpretation of criminal retribution.
7.4 Hegel: the dialectics of crime and punishment
Hegel gave a somewhat different interpretation of the relationship between autonomy and
criminal retribution. According to Hegel the relationship between the state and the criminal is of
a dialectical nature. The state does not take the criminal seriously to the extent that it
acknowledges the validity of the norm set by the criminal. It just treats him as an autonomous
being as far as the form of the sanction is concerned. According to Hegel, it is just an ironical
pedagogical device, a doing as if the thief had acted as an autonomous being. By "stealing" from
the thief it is brought home to him what autonomy really means. It demonstrates that autonomy
30
and living at the expense of others are incompatible principles. That is the subjective side of
criminal punishment.
The objective side of criminal punishment, the meaning and value of punishment for society, is
to express that justice prevails. The effect of punishment is that crime is shown not to pay.
Although punishment will deter potential offenders, such deterrence is not pure intimidation.
The message is not simply that the law has teeth, but that the law has teeth as the embodiment
of justice. Doing (criminal) justice, Hegel wrote, means that the state treats its citizens as equals,
as identities as far as the law is concerned, or, as Kant expressed it, that "if you steal from
another citizen, you steal from yourself".
With both Kant and Hegel criminal punishment is a matter of public distributive justice. In
relation to the offender the state does not act on the same plane as a punishing person does in
state of nature. It acts in a vertical relationship, following the principle that it will treat each
citizen as an autonomous being, that is, according to the rule this person is supposed to have set
himself. Thus, it will respect the property of citizens who respect property and it will steal from
citizens as much as they think can be stolen from their fellow citizens. In this way the state
fulfills its primary role as a keeper of the peace. The thief can not claim that any wrong has been
done to him, whereas his victim, assuming that his civil damage is also restored, cannot
complain either, because the liberty the thief took to violate the law has been paid back by an
equivalent criminal sanction.
Thus the balance of joys and sacrifices which the law imposes has been maintained. In Kant's
and Hegel's theory of the criminal law the state appears as a moral bookkeeper under the aegis
of the equality principle that it has to follow in dealing with its citizens. Everybody, including
the offender, will always be treated as an autonomous being and nobody will be able to take
advantage of his fellow citizens provided that the law operates effectively.
The given interpretation of Kant's and Hegel's retribution theories is, I think, the best possible in
the sense that much of its alleged absurdity vanishes when its political nature is made explicit.
With Kant and Hegel, retribution has nothing to do with talio in the primitve sense of "an eye
for an eye, a tooth for a tooth", but with political equality, as they do not think the principle to be
valid in the state of nature, where punishment may be less severe than the talio-principle would
demand. The fact that Kant and Hegel thought of criminal punishment as a matter of public
distributive justice is noteworthy for two reasons. It shows that modern absolutists were,
originally at least, more inclined than relativists to think about criminal punishment within the
framework of a political theory of justice. Certainly, the social contract idea also figured
prominently in both Beccaria's and Feuerbach's theories of criminal punishment47, but it had no
role to play for the determination of the size and kind of punishment. Once the right of the state
to punish has been established via the social contract, the determination of the size and kind of
punishment in their theories is purely a matter of the costs and benefits. This was a fortiori the
case with Bentham who rejected the social contract idea. The political nature of criminal
punishment is irrelevant for his theory. If an effective power to punish were in the hand of a
Note, however, that Hegel rejected social contract
theory. However, this is not important in the context of the
argument here, be it that the question of the relationship
between state punishment and Hegel's political philosophy is an
important problem for his theory (see footnote 46).
47
31
private person, he would have to follow the prescripts of Bentham's felicific calculus as much as
a state.
7.5 The functional limits of retributive criminal justice
We have seen that retribution is a matter of public distributive justice from the point of view of
the state. However, the citizens may be happy that the state respects its citizens as autonomous
beings, but why can they rest assured that a retributive criminal law is also sufficient as a means
to protect the legal order? Remember that, in Kant's development of the matter, they transferred
their natural right to punish to the state in order to have an objective, unpartial sort of criminal
law. However, that, in itself, is quite compatible with a non-retributive sort of criminal law. So
why would they accept a retributive criminal law when its possible inefficiency might endanger
the legal order?
It is an almost always implicit assumption of retributivist criminal legal philosophers that a
retributive criminal law is effective enough to keep crime under control. The latter concept is
vague, of course, but it can be understood in terms of the capacity to arrest probable suspects
and put them to trial, such that self-help will be a rare phenomenon. If a criminal legal system
dysfunctions severely, society is regressing to the state of nature in the sense that self-help is
prompted as the way of dealing with crime.
The view of Kant and Hegel must have been that seeing justice being done is an effective means
of crime prevention, as it demonstrates that, as Hegel wrote, "crime does not pay". However,
what does that mean in view of the fact that this demonstration cannot be based on a GD-effect?
I would like to suggest that they assumed that the primary social function of the criminal law is
self-confirmation of the legal order. Such an interpretation is suggested by Kant's and Hegel's, in
itself pretty absurd idea, that an offender would set a norm opposed to the norm of the legal
order. However, from the point of view of the citizens, crime may indeed be experienced as a
challenge to the validity of the norms of the legal order. Self-confirmation means two things.
Firstly, that the norm which the offender has set has not prevailed and, secondly, that the
offender has been told a lesson in a way that is in conformity with the rules of the legal order
itself. Not only has the legal order shown its teeth, but it has done so in a way that justice has
been done.
Given this interpretation, however, the question concerning the functional limits of the criminal
legal system is acute. In this interpretation a legal system will go down the drain if it can no
longer deal properly when suspects, although known, are not arrested, or if, when arrested, they
do not get the punishment they deserve although they are evidently guilty. But when does that
happen, the reader may ask, unless in revolutionary times? In fact, it happens regularly during
times when crime rates rise and the criminal system is simply lacking in capacities. For instance,
in the Netherlands the trust in the criminal legal system has suffered considerably during the
last ten years because known offenders were not arrested or came off the hook very easily
because the capacities of the prison system were too limited. Rapists and violent robbers
released for that reason were spotted by their victims shorlty after they had been arrested. In
Italy, sentences below two (!) years are rarely executed, because the system simply can not
handle them any longer48. Obviously, such situations will undermine the trust in the criminal
Therefore, mr. Berlusconi, who was sentenced to 16 months
of imprisonment in december 1997, will be off the hook.
48
32
legal system enormously.
The retributive principle, apart from other problems of its application which will be discussed
below, is not likely to endanger society because the severity of punishments it allows would not
suffice. On the contrary, precisely because the severity it demands may cause great
inefficiencies in the criminal legal system it may create such a risk. If, for instance, the Dutch
judiciary had not started to punish more severely as a reaction to rising crime rates, the problem
of a lack of prison-cells might have been much less dramatic and not so many criminals would
have been left unpunished.
The argumentation just developed does not imply a rejection of the ideal of retributive
punishment as such. All it leads to is that that a state and its citizens that would like to follow
the retributive principle may be faced with a dilemma between effective crime control and the
purity of the retributive principle. Punishment can be deserved, without being functional, and it
can be functional without being (fully) deserved, that is, less than deserved, or more than
deserved. Understandably, this is very awkward. It would be nice if such a deviation from the
retributive ideal could be justified.
7.6 Two Hegelian theories of criminal punishment?
Hegel's theory of criminal punishment is usually interpreted in the way we presented it before:
as an improvement of Kant's theory of retribution. Such an interpretation is strongly suggested
also by Hegel's critique of Feuerbach there. However, a moment of reflection on the structure of
his "Rechtsphilosophie" should be enough to realise that it does not really fit into it. The
retributive theory of criminal punishment figures in the section named "Das abstrakte Recht".
The qualification "abstrakt" refers to the fact that this section deals with the priciples of law as
they appear before their institutionalisation in the state. "Das abstrakte Recht" is the equivalent
of "natural law", that is a major object of criticism in Hegel's book in so far as the natural law
tradtion before him assumed that law would remain the same once it would be part of the state.
The impact of this critique for civil law is limited. It remains valid, in principle, as it has been
developed in "Das abstrakte Recht". However, it will be supplemented and restricted by the
rules which are created by the corporations and the state in the interest of public welfare, as
Hegel argues in the last section of his book "Die Sittlichkeit". However, The criminal law is a
different matter. In fact, it figured at a very special place at the end of "Das Abstrakte recht",
where the step towards the section "Die Moralität" was made. The step is taken when it is
pointed out
that punishemnt as developed there, has still a subjective form. It is essentially "revenge". The
subjective nature of punishment is created by the fact, Hegel wrote, that the offender might also
see his punishment as a crime against him. However, this would suppose that the offender
beleived to have been justified in doing that for which he was punished. Thus criminal
punishment leads to a "discussion" of the "good". The section on morality leads over to the
section "Die Sittlichkeit" after the subjectivity of the definition of the moral good has been
shown. "Sittlichkeit" is, in contrast to morality, not concerned with ethics, but with a functional
analysis of different social institutions under the perspective of their contribution to the
realisation of freedom in a well-orderd society and state. It is in this section that one would
expect a definition that does not suffer from the functional defects we have discussed in the last
section. In fact, one finds the criminal law reconsidered there in a section (218) that is rarely
dealt with even by Hegelians. The reason that it would be neglected is that it would seem to
irreconcilable with the priciples of crimianl justice that Hegel had developed out in "Das
33
abstrakte Recht".
In that section Hegel argues that crime in civil society is on the one hand much more serious,
because it is not only th evictim that is felt as being hurt, but all the members of society who see
their norms disrespected and threatened. On the hand, the threat is felt as less great because, in
contrast to the state of nature, an organised society can feel much more sure to be able to deal
with crime and its consequences. This is why, according to Hegel, the point of view of the
dangerousness of crime for society becomes predominant and replaces the point of view of the
damage that has been done to the victim. Therefore the sanction will depend on the state of civil
society. Depending on the danger that crime represents at a given palce and time, the severity of
the sanction may vary such that a theft of a few cents may be punished with the death peanlty at
one time and place, whereas a theft of something one hundred or more times more valuable may
be punished mildly at another. This, it would seem, is something totally different from
retribution! However, Hegel softenend the offensiveness of his view by adding that as civil
society had become more consolidated in the course of the historical development punishemnt
had become milder. Although this observation was adequate form a historical point of view,
Hegel did dwell with the fact that this development had taken place under the influence of the
theories of the very same people, Beccaria and Feuerbach, which he had criticised so severely in
"das abstrakte Recht". This is understandable, because it would have prompted th ecritique that
he had actually declared the principles of "abstract" criminal justice superfluous for civil society.
7.7 Feuerbach: a Kantian deterrence-theory
It is very remarkable that Feuerbach, so heavily criticised by Hegel as Feuerbach rejected
retributivism as a matter of principle, and not just, like Hegel, as the result of historical
development, regarded himself as a more consistent Kantian than Kant had been himself.
Kant had taught that moral freedom is a presupposition of practical reason, but that it can not be
explained in causal terms how free decisions operate upon a temporal-spatial world in which
nothing is uncaused. The operation of freedom upon action is, in other words, as mysterious and
paradoxical as is the creation of a temporal world out of nothing49. However, if we can not
know how moral freedom causes action, we can also never know whether an act is purely the
effect of a free decision or, wholly or in part, of emotional forces, like the fear to be censured or
punished.
Feuerbach also argued that, as morality is a matter of the mind, it is perfectly possible to agree
with a moral norm and nevertheless act against it because one's character is to weak to resist the
temptation to do so. In fact, Feuerbach regarded Kant's idea that an offender sets a deviant norm
not only unnecessary, but even absurd. It would only be correct if an offender were a devil, he
wrote. Therefore, retribution in the sense that an offender is treated according to the norm he has
set himself, also makes no sense. Moreover, according to Feuerbach, punishment does not
retribute anything in a concrete sense. If punishment were just temporally backward-looking, it
would only be adding more suffering to the misery already caused by the crime. If criminal
punishment should have a justification, it must be because of its beneficial effects with an eye to
the future.
Paradocical becuase the concept of creation presupposes a
before and after (creation) already.
49
34
To a modern reader the above will suggest that Feuerbach would think that SD or GD provides
a justification of punishment. However, he did not and he criticised both forms ro relativism.
According to him, the function of the threat of criminal punishment is certainly to deter, but
punishing does not take place primarily to deter the offender or others in the future, at least not
in the sense that punishment would have to reinforce the threat with the offender or others. In
his view punishment is simply a part of making a threat credible. It is true, of course, that the
threat has failed in the concrete instance in which an offender is being punished for a crime.
However, it does not imply that it has failed before, or that it can no longer be effective in the
future. However, to be effective in the future, it will be necessary that it will be implemented
every time it fails to deter the offender. How can this use of criminal punishment be justified
according to Feuerbach?
Feuerbach's foundation of the criminal law was simply an extension of the function which he,
following Kant and the natural law tradition in general, ascribed to punishment in the state of
nature. Punishment serves the protection of rights. Its size is determined by its effectiveness.
However, in the state of nature there is nobody but the victim who can decide what the required
size of punishment must be. Therefore, a violation of another person's right implies accepting
the price that the victim has set upon doing so50. This is a very strange theory, because it would
seem that it would be interesting to become a victim of a crime as long as that is profitable.
However, what other standard could there be in the state of nature? Even historically the theory
has a certain plausibility in so far as compensation and punishment were hardly differentiated as
long as law enforcement was in the hands of the victim and his family. In primitive law,
sanctions are usually negotiable, at least within certain limits51. Moreover, one of the standard
arguments in social contract theory, well-known from Locke but also used by Kant himself, was
that the aim of the social contract is precisely to put an end to legal uncertainty and the risk of
endless strife about the right measure of legal sanctions. On that basis Feuerbach could explain
both why the power to punish and the power to set sanctions should be delegated to the state on
condition that the state observes the 'nullum crimen..., etc.'-principle.
Interestingly, this principle for which Feuerbach became the most famous, was therefore not
directly inspired by the rule of law-ideal in so far as this ideal is based on the idea that it is
unjust to punish someone for something he could not know to be a criminal act52. That was a
position which Feuerbach could not argue for in so far as the criminal nature of an act is a
matter of rationally accessible natural law. The 'nullum crimen sine previa lege'-part of the
principle is just a logical implication or a limiting case of the 'nulla poena sine lege poenali'rule. A particular sanction can only be related to a particular crime if that crime has been
determined. The reason why it should be determined, is that Feuerbach saw the sanction as the
price the criminal agrees with when he commits the crime. Obviously, one cannot agree with a
W. Naucke, Kant und die psychologische Zwangstheorie
Feuerbachs, Hamburg (Hansischer Gildenverlag) 1962, p. 52-53.
50
However, it is untrue that the kind and size of sanctions
in primitive law are to the vicitm to decide. They can be
negotiable but they are almost always subject to traditonial
standards.
51
See also J. Bohnert, Paul Johann Anselm Feuerbach und der
Bestimmtheitsgrundsatz im Strafrecht, Heidelberg (Carl Winter
Universitätsverlag) 1982.
52
35
price unless one knows what the price is. The requirement of the definiteness of the sanction
with Feuerbach was therefore not derived from the idea of the rule of law as containing the
legality principle. His famous rule was derived, in the first place, from the philosophical
necessity of constructing the consent of the offender.
In fact, the "mens rea"-principle and the equality-principle, were also not derived by Feuerbach
as consequences fom the rule of law-ideal, but as functional requirements of an effective use of
the criminal sanction as he had constructed it. If the function of punishment is not reform or
deterring others, but only as a prospective threat for the (potential) offender himself, it makes no
sense to punish someone who did not know what he did, or if he did, is structurally undeterrible.
Although Feuerbach recognised the equality principle as a principle presupposed by the social
contract, he applied it to the criminal law only in so far as inequalities are concerned which are
functionally unrelated to deterrence. The equality principle implied, in his view, that everybody
should be deterred by the criminal law with equal force. However, that requirement would
imply sentences of unequal severity. One of Feuerbach's objections against retribuvism was that
it would have to discount social-economic factors determining crime, such that people in
unfavourable social-economic circumstances would have to be punished less severely, whereas
they are in need of more severe punishment from the point of view of the need to deter them
with equal force. As Feuerbach was against uncertainty concerning the severity of sanctions, the
implication was that it would have to be as severe as to be effective enough against classes of
offenders with a relatively great propensity to crime. Although possibly unneccessary severe for
members of other classes, they would only be deterred the more, and if individuals of those
classes would neverthelss commit a crime, they would still have given their consent to be
punished. Therefore, if it would not have undermined the necessity of a determined sanction,
Feuerbach would not have objected against unequal sanctions as long as they could be defended
on grounds of effective deterrence.
According to Feuerbach one transfers one's natural right to the state because the state can protect
it better. The state's duty is optimal protection of the legal order. Whereas we have just argued
that Kantians and Hegelians might be drawn away from pure retribution for functional reasons,
Feuerbach can be read as arguing that one should be drawn away from it if doing so implies a
better protection of citizens from crime. In fact, this is a very important argument which has
mostly been neglected by retributivists. The reason why they did so, is pretty obvious. Their
insistence on the respect for the autonomy of the offender may imply accepting that more people
become victims of crime in case a sanction that differs from the retributively just one would be
more effective as a means of crime prevention. This objection against retributivism has usually
been pushed aside by retributivists on the ground that optimal protection might demand the
most inhuman sorts of punishment. However, this is obviously a false counter-argument.
"Optimal protection" may also and more often imply punishing less severely than required by
retribution. Moreover, it does not imply that no constraints on punishment whatsoever might be
justified, the more so as inhumanity is not necessarily efficient. Rather the contrary as both
Beccaria and Feuerbach have argued.
7.8 Philosophical and practical autonomy
Although Feuerbach's theory may seem to follow rather easily from the function Kant himself
had ascribed to the criminal law in the state of nature, Feuerbach remained so much of a Kantian
that he felt vulnerable to the argument that offenders only figured as a means and not as
autonomous beings in his theory. According to Feuerbach, however, an offender agrees to be
36
punished provided that he knew that he committed a crime and was also familiar with the
sanction that he could expect if caught. Following Feuerbach therefore, the offender is not as
autonomous as to set a norm of his own, like a revolutionary does. However, differently from
someone who is mentally disturbed, he is autonomous enough to decide that he prefers to pay, if
convicted, a price for the crime he is committing. He is as autonomous as a buyer and a seller on
a market. In fact, if committing a crime would be an autonomous act in the sense of setting a
deviant norm, as Kant and Hegel would have it, willingness to pay the price for it must be
supposed to be included in that act.
Criticisms of Feuerbach's construction can be found with both Kant and Hegel. Kant did not
comment to Feuerbach's theory which was published four years before Kant, who was
dementing during his last years, died (1804). However, Kant had argued against Beccaria that
the right to punish does not depend on the consent of the offender, a consent which Beccaria had
incorporated in the social contract, as the natural right to punish also does not depend on the
consent of the criminal. In the social contract only the private right to punish is given up.
However, and that is were Feuerbach's theory might have been used to adapt retributivism,
Feuerbach's construction makes sense if the given consent would refer to the state's right to
deviate from pure retributive punishment for functional reasons. On the other hand, the
agreement of the offender with the punishment threatened with by the state does not differ from
the offender's assumed agreement with the sanction as set by the victim in the state of nature. As
the consent of the offender is "automatic" in Feuerbach's theory, Kant's objection against
Beccaria makes no sense against Feuerbach, as consent is not given with the social contract, but
by committing a criminal act the "price" of which is known to the offender.
In fact, it is not so easy to understand why Feuerbach thought he was vulnerable to the Kantian
criticism of using offenders as a a means instead of as an end. After all, the beneficiary of the
criminal punishment, within his theory, is the offender himself as much as it is society, because
the threat of punishment helps one against one's criminal inclinations. However, according to
Hegel, Feuerbach's theory was an insult to human dignity because he dealt with punishment as if
it were a stick to threaten or hit a dog with53. However, this objection is paradoxical. It is true
that Feuerbach assumed that the criminal threat will often help to scare off people to commit
crimes. However, that is an effect which the criminal law may have whatever one's background
justification of the criminal law is. Moreover, and that is what makes the objection paradoxical,
if anything, the decision to commit a crime becomes more autonomous if it is taken
notwithstanding the threat of a criminal sanction. However, Hegel was right, of course, in the
sense that Feuerbach did not see the decision to commit or not to commit a crime as an
autonomous act in a philosophical sense to begin with.
Feuerbach's criticism of the purely philosophical nature of moral freedom led him to a
"methodological" determinism for the criminal law. "Freedom" within determinist theories
means freedom in a practical sense, that is absence of special ciricumstances which make a
person criminally unaccountable for his behaviour.The reason why Feuerbach was compelled to
wrestle with the philosphical concept of freedom was that he was a social contract thinker who
had to understand all governmental authority as ultimately based on the consent of the citizens.
In fact, the supposition that offenders consent to be punished in a practical sense is a rather
53
G.W.F. Hegel, Rechtsphilosphie, par. 100A, Zusatz.
37
idealistic element in Feuerbach's theory. It is also its weakness. It is not much less unrealistic to
think of criminal offenders as deviant norm-setters than it is to think of them as buyers willing
to pay a price. There is a class of professional criminals, no doubt, for whom criminal
punishment is just "all in the bargain". However, if a driver of a car causes an accident in a
moment of inadvertence he is not taking the accident and the punishment it brings as part of a
bargain. He never wanted to cause an accident. This does not mean that criminal punishment
makes no sense in such a case. A greater criminal threat might have made him a more careful
driver. However, he would not have been a more careful driver directly out of fear for
punishment, but because the greater criminal risks are a signal to him about the seriousness of
the dangers of driving which through this threat he is more aware of. Criminal sanctions, in the
case of negligence, are usually not deterrents in a subjective sense, but only in an objective
sense, because their primary function is a cognitive one, being a reminder of the seriousness of
the risks involved in doing something. Therefore, if negligence cannot be constructed as
criminal behaviour in which punishment is part of a bargain54, an offender may also very well
disagree with the sanction, because he thinks that the punishment threatened is too light or too
severe.
7.9 Retribution and rehabilitation
So far for the line of criticism of Kant's and Hegel's absolutism from the point of view of the
crime control function of the criminal law. Leaving that aside now, we can return to their theory
of criminal punishment as the maintenance of a political-moral balance. The implicit contention
of retribution is that an offender will be rehabilitated as a citizen after having been punished.
Within the framework of the retribution theories of Kant and Hegel this is understandable if the
offender would have learnt a lesson from having been punished. But what if he has not? The
critical question to be asked is why society should not simply get rid of chronic offenders, that
is, with offenders who either do not want to be reformed or who apparently cannot be reformed.
In fact, Leo Polak's theory of retributivism was a device to cut this question short by founding
criminal retribution in a suposedly empirical psychological law, formulated by his doctoral
father Heymans55, that morally good actions should be applauded and rewarded, whereas evil
actions should be prevented or, if that is not possible, be made undone as far as possible and
In defense of Feuerbach's theory one might argue that
although consent is not a very adequate term in the case of
negligence, one can maintain that there is an element of
voluntariness involved when people deploy activities in which
negligence is a risk. That is why, for instance, we do not
think that drunkenness is an excuse for being out of control
when someone commits a crime. However, such voluntariness is
relative, because it is dependent on available alternatives. I
do not have to drink alcohol at all. However, I can not
possibly avoid to travel. When travelling, I can avoid certain
criminal risks by taking a train instead of a car, but I can
not avoid all risks of committing a crime through negligence.
54
Gerardus Heymans was the founder of experimental
psychology in The Netherlands. He connected path-breaking
psychological studies with an impressive work in all of the
major fields of philosophy. See Tiemen J.C. Gerritsen, La
Philosophie de Heymans, Paris (Felix Alcan) 1938.
55
38
also be punished. Satisfying this psychological desire is a goal in itself then. Obviously such a
psychologisation of retributivism implies a shift from the political nature of criminal
punishment as it was conceived by Kant and Hegel. The queston to be raised in the case of
Polak would be why the political community is the relevant point of reference of criminal
punishment and not, say, the village in which a crime took place or, if people abroad feel also
affected, a community that is wider than the particular state that claims to have exclusive
jurisdiction.
The latter question aside, however, one can doubt if Heymans' moral law is an adequate
description of how we actually think about moral sanctions. The analogy to moral retribution
that criminal legal retribution is based upon is that making a moral offender suffer often has the
aim to restore the relationship that had been harmed by teaching the offender a lesson. However,
the restoration of the relationship will depend on the offender's learning a lesson indeed, that is,
finding him to regret what he has done. Of course, moral punishment is also practised without
an intention to restore a relationship. However, in that case punishing would seem to be an act
of pure revenge, a means of the offended person to get rid of his frustration and anger. Revenge
may be understandable for psychological reasons, but it is nevertheless an immoral act itself if
the aim is only to hurt. Therefore, although it can be understood why the state should act
retributively in Kant's and Hegel's theory, it remains unclear why retribution would be a
sufficient condition for rehabilitation if an offender apparently has remained unreformed.
7.10 The moral justification of the right to punish
Retributivism is lacking as a moral explanation of the criminal law. However, even if that
would not be so, a moral explanation of the criminal punishment is insufficient to explain the
right to punish. The question of the relationship between law and morality was critically
examined and defended by Feuerbach, at age twenty-one, in his philosophical dissertation "A
Critique of Natural Law"56, published in 1796, one year before Kant had even published his
philosophy of law. On the basis of Kant's CI one can deduce the JI as a necessity to defend one's
freedom such that one can act in accordance with the CI. But how about a right to do things
which are morally indifferent or using one's rights for immoral acts? To the first question
Feuerbach answered that morally indifferent acts can nevertheless be conditions of acting
morally. Thus, in itself it may be indifferent from a moral point of view whether I buy a certain
house or not. Why should I have a right then to enforce a contract of sale, if the vendor does not
live up to his promise? Feuerbach's answer was that buying the house might be important
indirectly from a moral point of view e.g. because the buyer would like to let his children grow
up in surroundings from which he expects positive educational effects. Obviously this is a weak
answer in cases were the vendor could prove that the house was not part of any plans with moral
significance. However, one might still accept the argument by granting that the law must make
abstraction from such subjective and therefore often unprovable matters.
Feuerbach's answer to the second objection was even less convincing. His answer was that one
would no longer be morally autonomous if the law would force one not to act immorally. It was,
in fact, the same objection as Hegel was to make against Feuerbach's theory of punishment. The
objection is unconvincing precisely because it is an unavoidable effect of the law to influence
See W. Gallas, P.J.A. Feuerbachs "Kritik des natürlichen
Rechts", Heidelberg (Universitätsverlag) 1962.
56
39
morally relevant decisions. However, influencing is not the same as destroying moral freedom.
Moreover, as was argued already, if someone acts immorally the threat of the criminal law
notwithstanding, it is more likely that his act was an autonomous one. And even if the argument
were acceptable as a principle, it takes quite some moralistic fanaticism to maintain that the
freedom to act immorally should prevail in cases when doing so would imply that vital interests
of others would be sacrificed. Suppose that someone is drowning and could be saved if another
person would reach out his stick. Not helping the drowning person is not a form of interfering
with that person's rights. However, it is most immoral to refuse assistance in such a situation.
Why would it be wrong then to enforce such a moral duty by the threat of legal punishment?
What makes it so important to know if someone who saved someone else would also have done
so if he had not been threatened by the criminal law? After all, how can one ever know whether
a person acts morally only because he is afraid of the moral censorship which others might
submit him too and not just out of an inner respect for morality? In fact, how can one ever know
that even about oneself? So why care about just an additional reason to have doubts about the
purity of the moral nature of an act?
A very important point of criticism of Kant's theory of the relation between law and morality
that Feuerbach did not make is that criminal retribution is not applied to all illegal behaviour. If
someone wilfully breaks a contract, I may sue him for damages, but such civil-illegal behaviour
is usually not forbidden by the criminal law. An obvious explanation for this difference is that
citizen's can protect themselves much better and cheaper against such risks than the state can do
via the criminal law. However, that is a functional argument which is irrelevant from the point
of view of moral retribution. It would be hard to argue, from the point of view of Kant and
Hegel, that a creditor should protect himself against such deviousness of a contract partner,
because it would assume that citizens can not, in general, trust each other as morally
autonomous beings. However, morally speaking the wilful breaking of a contract can be
experienced as a violation of one's rights which is as serious as e.g. an act of embezzlement. In
fact, no retributivist I know of has ever provided a satisfying explanation we obviously make
between those two acts. The only escape that is left of retributivists would be to insist that all
blameworthy illegal behaviour will indeed also be punished. However, it goes without saying
that a criminal legal system will then become totally overburdened very quickly.
In fact, what the given example of wilful contract-breaking vs. embezzlement shows, is that
criminal responsibility is not based on the identity principle ("when you steal, you steal from
yourself") on which moral reasoning is based. Retributivists confuse commutative justice, the
justice of private law, with distributive justice, the justice of public law. What is it that makes
retributivists so blind for this obvious difference between private and public law57?
This question is especially pressing in the case of
Hegel, because he was so critical of Kant for mixing up private
and collective interests. The theory of the criminal law is
possibly the weakest spot in Hegel's "Rechtsphilosophie" from a
systematic point of view. Surprisingly, as far as I know, this
has never been remarked in the more than one hundred fifty
years of commentating Hegel's "Rechtsphilosphie". Hegel's
critique of social contract-theory was precisely that it tried
to justify the state upon private rights instead of upon rights
which
have
their
foundation
in
the
well-being
of
collectivities. In Hegel's view private rights cannot exist in
the abstract, but only in the context of differentiated social
systems. Interestingly, the point where Hegel set in this
57
40
The reason why retributivists have turned a blind eye upon the question concerning the criteria
for (de-)criminalising illegal behaviour is, I venture to speculate, that they can think of no other
objectifiable standard for the determination of the criminal sanction.
7.11 Leo Polak's "objectivation"-theory
Primarily, the talio-principle seems to offer a very simple criterium for the nature and severity of
the criminal sanction. However, on some further reflection it will appear to be far from
unproblematic. The importance of Leo Polak's contribution to retributivism58 has been precisely
to face these problems and to try and find a solution for them.
critique was right after his treatment of the criminal law,
which figures at the end of "Das Abstrakte Recht", the first
section of his "Rechtsphilosophie" in which property and
contract are the two subjects preceding criminal punishment. As
already explained, Hegel had constructed the crime as setting a
deviant norm by the criminal for formal reasons only. However,
the state does not take the normative claim of the criminal
seriously. It is just being ironical.
By contrast, in order to put the rights of individuals into the
context of a differentiated society Hegel used the device of
taking the autonomy of the offender seriously and turned him
into a revolutionary who claims that what may seem to be a
crime is justified by some higher end of society or of society
as it should be. Thus Hegel entered into the discussion about
the 'right society' in the second section of his book,
"Morality". The conclusion of that section is that a purely
moral discussion of the institutionalisation of society leads
to nothing but incompatible speculative preferences. The third
part,
"Die
Sitte",
follows
the
path
of
a
functional
sociological analysis, in which the relationship between moral
freedom and necessary societal functions are analysed following
the Aristotelean line of the growing complexity of society from
the family to the economy, and finally the state. However,
although criminal punishment is clearly state punishment ever
since the state monopolised that function, Hegel nowhere
considered whether the principle of the moral and the legal
autonomy of the individual and the responsibility of the state
to protect its citizens against crime, would not necessitate
and allow a different view of the principles of criminal
justice than he had set out in the first section.
Leo Polak, De zin der vergelding, vol. I, Amsterdam
(Emmering) 1922, vol. II, Amsterdam (Van Oorschot) 1947.
Polak's so-called "objectivation-theory" was first published in
1922. However its full argumentation became known only in 1947,
seven years after Polak had died in a German concentration
camp. The publication of the second volume had been delayed
ever since Polak had finshed it in the mid-twenties. It is
tempting to speculate that Polak was still not satisfied with
his
theory
because
he
had
no
convincing
theory
of
(de)criminalisation. However, we simply do not know that.
58
41
Interestingly Polak started with working out the GD-theory of his spiritual father, Heymans,
who had formulated the moral-psychological "law" we have already referred to above. It took
Polak many years to conclude that he had to reject Heymans' view of the criminal law, because
he found him wanting in explaining the ineradicable notion of retribution. Retribution is,
according to Polak, the essentially economic idea that something negative caused by the crime is
compensated through punishment. If punishment were simply about preventing evil, the
criminal event might not even be a necessary condition to justify taking measures against
someone who is highly likely to commit crimes. In my view Polak's own so-called
"objectivation-theory" brought out the essentially moralistic nature of the absolutist theories by
concluding that the balancing of moral joy and sorrow is the business of the criminal law. The
unsolvable problem with Polak's theory is the same as with Kant's and Hegel's: how to explain
that not all blameworthy illegal behaviour is punishable according to the criminal law?
Moreover, Kant and Hegel could appeal to a theory of state to explain why only illegal and not
all immoral acts might be punished by the state. Polak, however, had no such theory of state.
His appeal to a psychological-moral law begs the question where the line between law and
morality should be drawn.
The really interesting aspect of Polak's theory is his operationalisation of retributivism, which
explains why he called his theory the "objectivation-theory". Polak rejected the talio-principle
for a number of reasons. Firstly, if it were taken seriously, retribution should depend on the
subjectively determined amount of suffering of the victim. Secondly, it cannot explain the
usually crime-unspecific nature of the criminal sanction. Thirdly, talio, if taken seriously, would
lead to practices which run totally counter to the humanitarian tendencies of the modern
criminal law. Finally, the criterion is meaningless sometimes when taken literally. What would
be, for instance, an appropriate sanction for dangerous driving? Let the offender cross a
minefield? Instead, Polak, argued, retribution is about equalisation in the sense of letting the
offender suffer as much as he made his (potential) victims suffer. However, according to Polak,
the equivalent of suffering that is to determine "just" punishment, cannot simply depend on the
amount of suffering of the victims.
Instead, Polak proposed what he regarded to be an objective criterion: the "punishment" a lawabiding citizen would be willing to undergo for not having to commit a certain crime.
In Polak's psychological approach a law-abiding citizen is not simply someone who never feels
the inclination to commit a crime. It is someone who would experience more pain from doing so
than satisfaction because he has a "trans-egoïstic" attitude. The sympathy with his potential
victims makes him suffer in anticipation of the pain his victims would feel such that, on
balance, he feels better off not to commit a crime. An offender, by contrast, is lacking in transegoïstic attitude. He cares so much more about the satisfaction of his own desires than he feels
pain in sympathy with his victims, that he commits a crime. However, the reason that he does so
is that he also suffers more from the non-satisfaction of his immoral desires than does a lawabiding citizen. As punishment is about equalising offenders with the law abiding-citizen, the
latter must ask himself how much suffering should be added to his egoistic, immoral desires to
let the balance of forces with his "trans-egoistic" feelings skip to the other, criminal side.
Note that the law-abiding citizen is not an ideal citizen, a citizen who feels no criminal desires
whatsoever, but only one who has a balance between criminal and anti-criminal desires such
that he will never break a law. However, by giving up the standard of moral innocence that was
still used by Kant and Hegel, who demanded full retribution, a paradox is created.
42
The greater/smaller the difference between the moral and the immoral desires of the law-abiding
citizens, the more/less severe will criminal legal sanctions be. Assuming that the deterrent effect
of the threat of criminal sanctions increases with its severity, at least to a certain point, more in
themselves not-law abiding citizens will not commit crimes. The paradox is therefore, that the
closer law-abiding and not law-abiding citizens are from a moral perspective, the greater will
their difference be in terms of their criminal legal behaviour, although this is compensated by
the fact that offenders will not be punished as severely as when the moral gap between them had
been wider.
Therefore, people who are equally immoral may become criminal offenders or not depending on
the legal community they are a member of. However, it is precisely through a realisation of this
paradox that another and more stable point of objectivity can be reached.
7.12 Polak and Rawls
According to Polak, there is a point where the law-abiding citizen decides that he will rather let
someone else suffer than being "punished" himself. If he would totally identify with the victim
he might, if possible, make himself the victim of his own crime. In other words, in contrast to
Kant and Hegel, Polak would seem to have allowed a certain amount of non-identity or
selfishness among citizens. Polak's theory is decidely more psychological and less idealistic and
moralistic than Kant's and Hegel's. Moreover, Polak's point would seem to be that one should
not only sympathise with victims, but also with offenders, as the law-abiding citizen is not a
holy man. He has criminal inclinations, although they never overcome his transegoistic
inclinations. However, realising the paradox we have analysed, the law-abiding citizen must
admit that by taking his own possibily only marginally moral nature into account in determining
the size of punishments, he is a creating a relatively arbitrary division between criminal and
non-criminal citizens. To that extent taking himself as the starting point of measurement is not
being objective in the sense of being unpartial. Moreover, one's moral or immoral nature is a
contingently given. In fact, the concept of moral "character" which Polak used, is based on an
outdated psychology which abstracted from social and situational factors which determine
whether someone will commit a crime or not or will be arrested or not. Therefore, in a really
objective approach one should abstract from one's own contingent nature and place in society.
The "law-abiding citizen" who is willing to suffer in order not to commit a crime seems a highly
artifical and idealistic concept. Indeed, Polak's "objectivation"-exercise is familiar with Rawls
"veil of ignorance"-device in that respect. But not only in that respect. When the law-abiding
citizen performs the thought-experiment of self-punishment, he imagines to stand under the
same pressure as another person who is driven to crime by immoral desires. It is, therefore, an
exercise in sympathy. However, it is a biased exercise, because Polak reasons from the point of
view of someone who does not imagine having a real chance of becoming an offender. A
neutral point of view would be one which is in conformity with the "veil of ignorance"-standard,
that is, the point of view of someone who does not know wether he will stand on the positive or
the negative side of being victimised or being punished by the state. Not knowing that he will
have to assume average chances of becoming a victim of crime and of being an offender.
Therefore, he has to balance his interest of being protected against crime against his negative
interest of being punished after committing a crime. That is, in fact, the point of the Janus-face
view59.
59
It differ's from Polak's objectivation test in so far as
43
Although the Janus-face view differs principally from Polak's theory because it is GD-functional
and not moral, it nevertheless provides an explanation of the indeed ineradicle retributive
element in criminal punishment. Moreover, although it does not ground the criminal law in
morality, it places the criminal law as a function within a political-moral community. It adds, in
other words, this important element of early absolutism, which had gone lost in Polak's theory,
in which the relevance of the state as the relevant community was treated as something obvious.
7.13 Rawls and the Janus-face view
Have I then, without saying it, presented a Rawlsian theory of criminal justice? Although that is
strongly suggested by the analysis in the last paragraph, such a claim would be wrong. Firstly,
the basis I have chosen myself for the Janus-face theory is H.L.A. Hart's theory of a "Minimum
content of natural law". Although Hart borrowed the idea of the seperation of the question of the
justification of the CL as an institution from the question of its distribution in individual cases
from an early article of Rawls'60, he did not accept Rawls suggestion in that article that the
principles of distribution might also be understood in a utilitarian way. In fact, Rawls produced
arguments to that effect which remind us of Crombag's psychological understanding of criminal
justice. However, this line of reasoning was later given up for the "veil of ignorance"construction in A theory of Justice: "In agreeing to penalties that stabilize a scheme of
cooperation the parties accept the same kind of constraint on self-interest that they acknowledge
in choosing the principles of justice in the first place".61
The difference with his earlier approach is that it is no longer social utility which determines the
outcome, but individual utility, be it one of a totally abstract kind. It is an individual with
average chances of becoming a victim of crime and of becoming an offender. In fact, this is the
same individual that appeared in our theory, although we did not assume a fictitious individual.
As far as the CL is concerned, it can be maintained that it is in practically everybody's interest
because it is indeed impossible to know if and to what extent we ourselves and those we care for
might become a victim of crime or an offender.
Nevertheless, there are two important differences between Rawls' approach and the Janus-face
view of the CL. The first difference is that Rawls, unlike Hart, did not face the problems
concerning the equality and the proportionality principle. The second major problem is that it
would be incoherent, within Rawls' theory of justice, to use a concept of justice that is restricted
to the principles of criminal justice in a narrow sense. In the case of Rawls, the criminal judge
the marginal utility of punishment has to be taken into
account. The question of whether one would be willing to suffer
more punishment will depend on how much suffering one saves
oneself imagining oneself to be a victim of the crime.
Moreover, in the case of the Janus face theory the marginal
utility of victim-protection of alternatives for punishment
have to be taken into account.
J. Rawls, 'Two Concepts of rules' ,Philosophical Review,
vol. 64, 1955, pp. 4-13.
60
John Rawls, A theory of Justice, Cambridge (Mass.) 1971,
p. 576.
61
44
would have to take a host of factors into account to make sure that punishment would not only
be just in a criminal legal sense, but also fair in a wider sense. All sorts of personal and socialeconomic disadvantages that make one person more likely to become an offender than another
would have to be equalised in the Rawlsian criminal sanction.
Obviously, this is the consequence of the general nature of the equality principle in Rawls'
political philosophy, whereas the Janus-face theory is based on a revised reading of Hart's
"Minimum content of natural law". It uses an equality principle that is not general, but functionspecific for the CL: an equal right to be protected against crime or to be charged for committing
one without any possibility to discount that right against rights of equal treatment in other
functional domains. However, although function-specific the Janus-face view is, differently
from Polak's and Rawls' theory, not just a theory of criminal punishment, but one of criminal
punishment as one of alternative means of crime prevention.
8. The sociology of the classical and the neo-classical model
8.1 The internal and the external perspective
We have analysed the conceptual stucture of the classical model. We have also developed a
coherent philosophical framework for its justification. It is now time to step out of a
predominantly conceptual analysis into a predominantly external, sociological perspective on
the classical model and its development. However, in doing so, the interest will still be guided
from an internal point of view, because our leading question is if and to what extent the classical
model can be applied to modern CL.
8.2 The progressive nature of the classical model
The sociology of the evolution of the CL warns us against naïvety vis a vis modernist
interpretations of this development in terms of the "progress" of humanity. It has been pointed
out, firstly, that "brutality" in the CL is relative to the occurrence of brutality in society in
general. Cutting the hands of thieves may seem utterly brutal to us, but it was much less so in a
society in which physical deformity was much more common anyway and monetary sanctions
against the numerous poor were impractical. The galleys or banishment were the only
alternatives short of the death penalty, but these sanctions were disproportionate for petty
crimes. Secondly, both authority and crime were perceived in a religious context, that is in the
context of sin and redemption. Paying a terrible price on earth could be used as a discount when
knocking on heaven's door, with the authorities' role as advanced instruments of God's wrath as
much as of public order. As the forces of order were most ineffective in combatting crime,
punishing offenders was more a show of political power than an attempt to do something
serious about the social problem of criminality and its underlying cause, poverty. This was
believed to be endemic, as indeed it was, until the second industrial revolution62.
The great impact of the Enlightenment consisted of the combination of a secularised vision of
the function of the CL and a belief in the possibility of social progress, both materially and
spiritually. However, it was not so easy to get rid of all the theological and metaphysical
However, with the increase of wealth it also produced an
increase of the opportunities for crime.
62
45
shackles that centuries of Christian religion and philosophy had produced. Precisely for that
reason we should not be over-critical of the progressive nature of Enlightenment humanism. For
all our historically relativist awareness of the dialectics of humanisation and disciplining, it is
more appropriate to take a longer-term perspective in the examination of the process of
rationalisation in modernity. In fact, the disillusions concerning the wholesome effects of
imprisonment on crime came fairly quickly and great debates on prison reforms started
everywhere after the first quarter of the nineteenth century. They have never stopped. Functional
rationalisation of the CL did not stop after its first, metaphysical-speculative phase.
8.3 The empirical turn: neo-classicism
Although the movement for prison reform began fairly early in the nineteenth century, the
classical model of the CL became an object of a very principled discussion only during the last
quarter of the nineteenth century. Very interestingly it took the form of an internationally
organised discussion. In 1889 the Internationale Kriminalistische Vereinigung (IKV) was
founded by the German Franz von Liszt, the Belgian Adolphe Prins and the Dutchman Gerard
Anton van Hamel in 188963. This very influential64 Association criticised the classical view on
account of its speculative, non empirical-scientific nature.
Although the IKV did not reject most of the legal doctrines of the classical view and although it
believed itself to stand, at least by and large, in the same tradition of Enlightenment and
humanisation of the CL as the classical view, humanisation had become a means rather than an
end of criminal policy in the approach of the IKV. The IKV was dominated by what was soon to
be called "neo-classicism", that is the still prevailing view of the CL.
The main tenets of the IKV were that, firstly, the classical view's pretention that punishment
would serve SD was untrue and that, in fact, rather the contrary was the case. Secondly, that the
GD-effect of criminal punishment was very insufficient as a means of crime prevention. The
IKV favoured a less abstract view on crime than the classic thinkers had taken. Instead of
judging crimes, it advocated judging criminals. In other words, it rejected the concept of
criminal justice of the classical view with its proportionality between guilt, seriousness of crime
and the severity of punishment. The IKV advocated new means of controlling or reforming
convicts and it advocated the study of the social-economic conditions that influence crime rates.
In fact, the IKV was stimulated by and stimulated in its turn the programme of modern
criminology.
The IKV's two main tenets as such have been borne out by criminological studies again and
again. Its most important pragmatic ideas have also been widely accepted. The IKV advocated
the replacement of short prison sentences, believing, and rightly so, that it would help avoid the
criminogenic effects of imprisonment. As a replacing device it advocated fines and conditional
M.S. Goenhuijsen and D. van der Landen (red.), De moderne
richting
in
het
strafrecht.
Theorie,
praktijk,
latere
ontwikkelingen en actuele betekenis, Arnhem (Gouda Quint) 1990.
63
See H.H. Jescheck, Der Einfluss der IKV und der AIDP auf
die internationale Entwicklung der modernen Kriminalpolitik,
Zeitschrift für die Gesamte Strafrechtswissenschagft 1980, pp.
997-1020.
64
46
imprisonment. Furthermore, it argued for an approach of juvenile delinquents such that
punishment would be secondary to re-education to correct seriously deviant behaviour among
the young. In that approach it did not really matter whether a crime had been committed or not
(yet).
These two propositions did not radically contradict the classical view. Beccaria had stated that
the useful effect of punishment should be reached at the least possible cost for both the offender
and society. In so far as the costs for juvenile delinquents might be higher than they deserved as
punishment, it could be argued that minors do not count fully as citizens yet and should be
educated as citizens first. It was only the IKV's third pragmatic proposition which represented a
clear deviation from the classical paradigm and which caused, in fact, a great controversy within
the IKV, notably between its German and its French sections. This was the in Germany almost
uncontroversial proposition of allowing special measures against the hard core recidivist who
were (and are), as statistics show(ed), responsible for most of the more serious sorts of
criminality. This special treatment could consist in therapy but also, where therapy was not
possible, in simple containment. In fact, there was a tendency within the IKV to think about this
group as "social degenerates", as a group which is simply hopeless and therefore to be excluded
from civil society.
Evidently such a proposal was irreconcilable with the humanist optimism underlying the
classical view, that did not include a reservation for hopeless cases which could be excluded
from the social contract. However, it should be noted that the advocacy for the death penalty
was not very strong among the members of the IKV65. In all fairness to the IKV it must also be
admitted that nobody, as far as I know, wants to do away with the existing possibilities to
impose periods of treatment on perpetrators of aggressive crimes with a high risk of recidivism.
In many cases such treatment is a pretty hopeless affair and is nothing else but confinement in
disguise. The "dehumanisation" advocated by the "modern direction" was therefore limited to
the worst class of criminals. One may, of course appeal to a rather academic distinction between
treatment and punishment and demand guarantees against uncontrolled terms of treatment, a
demand which, in fact, was also made by the IKV66. How come then that the "modern direction"
has been criticised more recently as having promoted an approach to crime that is more and
more undermining the classical doctrines of the CL67?
8.4 The waning of neo-classicism
Although the allegations against Von Liszt & Co are rather anachronistic or only justified as
regards the important influence of the criminologists among them68, there are certain similarities
It has never been a subject at any
international meetings between 1890 and 1913.
65
66
of
the
IKV's
Groenhuijsen and Van der Landen, O.c., p. 82-83.
See e.g. R. Foqué and A.C. 't Hart, Instrumentaliteit en
Rechtsbescherming,
Grondslagen
van
een
strafrechtelijke
waardendiscussie, Arnhem (Gouda-Quint)/Antwerpen (Kluwer) 1990,
pp. 243-260.
67
See David Garland, The Criminal and his Science, A
Critical Account o the Formation of Criminology at teh End of
teh Nineteeth Century, The British Journal of Criminology Vol.
68
47
between the socio-legal conditions at the turn of the last century and the turn of this century.
Crime rates were rapidly rising as a consequence of industrialisation and urbanisation at the end
of last century and it was pretty obvious that this rise could not be controlled simply by
punishing more severely. On the contrary, the existing system of criminal justice was believed
to increase crime rates through the criminogenic effect of imprisonment. In other words, without
changing the system it was believed to steer into an ever greater crisis.
In our own time we are going through a similar process. Notably the U.S.A. demonstrate that
purely repressive policies are largely counterproductive. However, the reasons for the present
crisis are very different. The present rise in crime rates is very much a drugs-related rise, a
problem which, according to some observers, should be managed through a policy of
decriminalisation. However, part of drugs-related crime has to do with a more general reason for
the present impotence of the administration of criminal justice. We are living in a society of
organisations and crime becomes crime in organisations or at least an organised sort of crime,
which is much harder to control, the more so, as much of this crime has international
dimensions. In reaction to these developments the state has the inclination to do away with
many of the guarantees of the classical CL. It is in this instrumental approach of the law that
there is some affinity between the "modern direction" and contemporary developments.
Nevertheless, to make the modern direction responsible for the present developments is rather
far-fetched and anachronistic. After all, the propositions by Von Liszt and Co. have all been
accepted before the present developments and apart from the marginal infractions it made upon
the classical criminal legal doctrine, it did not imply nor lead to a fundamental rejection of the
classical view. And in so far as such tendencies existed within the IKV, they have been
redressed by the both reformist and rule of law minded Association International de Droit
Pénal, its still existing successor, founded in 192469.
The IKV can nevertheless be seen as a logical step between the classical model and the
contemporary crisis of the neo-classical model (see below) in so far as it undid the classical
model of some of its universalist and idealist metaphysical features. Firstly, it restricted the class
of citizens to which the classical model may apply by excluding minors (reeducation) and
chronically dangerous offenders (therapy or confinement). Secondly, by advocating the
replacement of shorter prison sentences by fines and conditional prison sentences, it undid the
classical model from its fascination with imprisonment. As we have argued, this fascination is
understandable against the metaphysical, to wit, social contract based understanding of
punishment, in which punishment appears as temporary exclusion from society. However, if the
classical model is interpreted as the epochal step towards a secularised and functional approach
of criminal punishment, the replacement of imprisonment by fines was just a further step in its
functional rationalisation. A functional rationalisation both regarding the efficiency of reaching
the goal of the system at the least costs for both society and the offender, as well as regarding
the differentiation of criminal punishment from morality. Much less than imprisonment fines
symbolise exclusion from civil society. On the contrary, they rather symbolise punishment as
the price of crime, they commercialise and therefore normalise crime to a certain extent as an
inherent but necessary risk of social life. It reflects a shift of attention of the criminal system
from the authority of the state (the social contract) and the criminal individual and his immoral
nature, to the effects of punishment on the social fields in which criminality is generated or is
25, no. 2 (1985), pp. 109-137.
69
See H.H. Jeschek, O.c.
48
prevented from being generated. In so far as the reforms of the CL as proposed by the IKV have
been a step towards further secularisation and functional rationalisation of the CL as well as
towards a further functional differentiation, it can be seen as a bridge towards the "postmodern"
developments in CL that we are witnessing today. However, these latter developments can no
longer be understood within a (neo)-classical framework, as I will argue.
9. An evolutionary view of post-classical CL
9.1 Post-classical phenomena in the CL
The (neo)-classical view still dominates the CL. However, this is a domination in the legal
imagination as created in legal class-rooms and the media. It is the imagination of the CL as
dealing with speeding, thieves and thugs as well as more or less solitarily operating white collar
criminals. This domination exists less and less in legal practice and it is on the wane in legal
class-rooms.
The (neo-)classical view of the CL is tied up with the idea of the rule of law. This idea is
obviously at odds with the fact more and more rules were introduced during this century which
are based on criminal risk responsibility instead of on criminal intent or negligence70. The idea
of the rule of law is based on characteristic presumptions concerning the possibility to know and
predict the CL, to identify reliably criminal acts and offenders as well as their responsibility.
According to many authors, contemporary law and life have produced ever more criminal rules
and cases in which these presumptions are no longer met. Some writers have a downright
apocalyptic vision of these developments71. More and more the CL is about organised crime and
about crime in and by organisations, both public and private. These sorts of crimes are
committed by employers, administrators, bankers and traders and have to do with safety and
quality regulations, working hours, money laundering, industrial espionage, illegal copying,
bankruptcy, corruption and blackmailing, manipulation of information and stocks, computercrime, pollution, taxes and social security charges. It is white collar crime, but white collar
crime of an often organised, fairly administrative-technical and of a more or less professional
kind. Often these crimes are difficult to define, detect and prove, the more so as they
increasingly become transborder crimes as globalisation proceeds.
Some of the more traditional crimes, gambling, drugs, trade in women, children, illegal aliens,
protected animals and transplantation-organs, car-theft and terrorism, are nowadays also more
and more professionally organised. Sometimes the organisations responsible for them are also
well connected to the "upper" world. Moreover, they also have become more international as
organisations. These sorts of crime share in the modern nature of crime in so far as the
See on strict liability: Ted Honderich, Punishment, the
supposed justifications, Harmondsworth (Penguin) 1984, pp. 170175.
70
See e.g. Winfried Hassemer, 'Die Tauglichkeit des
modernen Strafrechts', in L.E Kotsiris (ed.), Law at the turn
of the 20th century, Thessaloniki (Sakkoulas) 1994, p. 193, who
puts post-classical CL in the context of Horkheimer's and
Adorno's 'Dialectics of Enlightenment'.
71
49
organisers and their connections in the "upper" world are often difficult to trace down.
Sometimes "unconventional" methods of investigation and prosecution are necessary to catch
them. Although organised crime and crime by organisations are differentiated according to
whether organisations have an officially legitimate purpose, such a distinction makes only
limited sense from a criminological point of view. In fact, criminal organisations sometimes
operate in a shadow area in which they are tolerated more or less by the authorities who are too
dependent on them. That dependency is not necessarily created by corruption, although
collusive relationships will often lead to it. Criminal organisations may at the same time provide
useful services in crime control or otherwise.
In part these new types of crime suffer from problems of definition. The increasingly complex
and technical nature of society produces norms which make a relatively high demand on
citizens' knowledge of legal rules and the situations in which they apply. The negative effects of
the behaviour they proscribe are often difficult to foresee or unlikely, although sometimes
severe, when they occur. Although these norms put less of a burden on organisations who
specialise in the fields to which they apply, they are sometimes formulated so broadly and
vaguely that it remains difficult to foresee when they will apply. In part the burdens of these
rules are laid upon organisations without any specific personal responsibility, which implies that
the ground for such responsibility is also very remote. It may be that the criminal act is just an
outcome of a defective organisational design, the criminal consequences of which may have
been almost unpredictable or very difficult to avoid always. Adaptation and change of
organisations and training of the personnel in the required skills can be very time-consuming.
The other side of this coin is that precisely the complexity of rules and regulations and the
special knowledge and organisation that is necessary to deal with them, create many criminal
temptations and opportunities.
9.2 Functional aspects of post-classical CL
Although the nature of such CL would be decidedly non-classical, it does not follow that the
post-classical use of the CL is dysfunctional. A criminal judgement may be precisely the means
to draw public attention to the fact that a certain form of action should be avoided and is
punishable. It goes without saying that such criminal norms are suitable instruments of political
and administrative manipulation. Precisely because it is sometimes hard to predict how lawsuits
will end, the threat of a lawsuit can be used as a means to make people go along with the wishes
of authorities even if they are unrelated to the subject matter to which the rules are relevant. In
practice they are often just bargaining chips to come to deals to prevent further criminal
prosecution. Such deals often remain out of the sight of the public. In fact, many organisations
are not afraid of punishment as such, but of the nuisance and the public disrepute that goes
along with criminal procedures. The CL used in this way is an extra asset of public
administration, as similar effects may be reached by threatening with means of an administrative
or civil legal kind. Post-classical CL therefore has a feature in common with pre-classical law,
where "setting examples" also was the solution to the blatant incapability of governments to
combat crime.
Another feature of post-classical CL which can remind us of pre-classical situations and is
therefore a cause of great concern, is the gradual erosion of the procedural guarantees of the CL.
There has been a global increase in crime rates due to economic growth, urbanisation, migration
and mobility. The amount of criminality reported, crimes detected and offenders apprehended
has increased much less, although this increase is often too much already to be handled properly
50
by the authorities. Understandably, efficiency becomes the overriding concern under these
circumstances whereas global inefficiency will be compensated by show-cases such that real
and television staged cases become almost indistinguishable for the public. In order to be more
efficient, there has been a trend towards allowing the use of under-cover agents, agentsprovocateurs, criminals who are allowed to testify under the pledge of (partial) immunity,
anonymous witnesses and many new technical devices which threaten privacy, but the possible
abuse of which is very hard to prove.
Although plea-bargaining is far from being as common in Europe as it is in the U.S.A., pre-trial
negotiations ending in agreements to "buy off" a trial are used frequently now even in nontrivial cases. In the perception of the public the distance between cops, who are more easily
suspected of corruption, and robbers, who tend to be seen as smart guys, has become much
smaller. It is public knowledge that in some areas (drugs, gambling, prostitution, sweat shops,
environmental crime) tacit agreements exist between criminal entrepreneurs and the authorities
because the latter are dependent on them for controlling the more severe or irregular criminals
or because the state has a fiscal or administrative interest in their activities.
A lesser distance between state and crime might be interpreted within a broader framework of a
"horizontalisation" of the relationship between state and society. Informalisation of the CL
implies that social-economic and financial power become decisive factors in the criminal
process, in which expertise, knowledge and access to information have become crucial factors.
Moreover, as the world is becoming increasingly organised, crime control is becoming the
responsibility of non-state organisations more and more. In fact, its financial proportions surpass
most government's budgets in the field of crime control nowadays72. Organisations employ their
own security forces and they have internal procedures to deal with crime by employees as they
have a strong interest not to "show their dirty laundry". At the same time, industrial espionage
and (patents-)warfare have become as common between industrial organisations as they used to
be between states. In fact, state intelligence services, especially after the end of the cold war,
seem to be very much involved in industrial espionage nowadays.
9.3 Social structural aspects
One can be wary of these developments because they fly in the face of the classical image of the
CL. However, it is hard to imagine that one could stick to one's classical guns in view of the
societal causes of these developments. In this connection it may be useful to realise that the
development of the classical CL was also a reaction to the change in the nature of crime which
went along with the processes of economic change and urbanisation. The classical CL was the
product of the rising bourgeois class which desired to control the government on the one hand,
and the growing masses of the urban poor on the other. For the new middle classes it was
intolerable that the CL would remain an unpredictable factor which could be manipulated to a
large extent in the interest of political power holders. At the same time, they were dissatisfied
with the mainly symbolic use the government made of the CL by hanging, torturing and
maiming a few offenders. The nature of crime changed from predominantly physical violence
See
Michael
Voss,
'Privatisierung
öffentlicher
Sicherheit', in Detlev Frehsee, Gabi Löscher & Karl Schumann,
Strafrecht,
sozialse
Kontrolle,
soziale
Disziplinierung,
Jahrbuch für Rechtssoziologie und Rechtstheorie XV, Opladen
(Westdeutscher Verlag) 1993, pp. 81-102.
72
51
and petty theft by vagabonds and drunkards to more professional forms of property crimes, a
more calculated and intelligent form of crime, at least as far as victims from the middle and
higher classes were concerned. Against this sort of crime a regular, professional police force
was believed to be a necessity for the apprehension of offenders, and imprisonment was seen as
the most efficient means of control and reform. Rationalising and limiting the use of the
criminal sanction was not only a matter of humanisation, but also and maybe more importantly a
matter of efficiency73.
A recognition of the ideological nature of the classical CL makes us realise that the present
transformations of the CL may be as fundamental as was the quick rise of the classical CL itself.
The classical CL was part of the process of functional differentiation characteristic of
modernity. The neo-classical model represents a further differentiation and rationalisation
within the classical model. The present, post-classical process is, I believe, one of an even
further, more radical functional differentiation. It does not only take place within the CL, but it
is also affected by more general legal changes of this kind in which the disintegration of older
models is more apparent than processes of functional resystematisation that are going on at the
same time. This process is one in which pieces from the traditional branches of the law, private,
administrative and CL, become relatively separated from other pieces within their branches, but
become more integrated with pieces from other branches in relation to particular social fields
and problems. More and more, we will find specialisations like computer law, environmental
law, etc. etc., which include and partially integrate private, administrative and criminal legal
aspects more or less coherently. To characterise these processes of functional resystematisation,
I will use three interrelated concepts: semi-autonomy, horizontalisation and supercomplexity.
Semi-autonomy is a concept which was first used in legal anthropology 74 . It refers to the
capacity of a particular social field to develop and maintain its own norms or to use official
norms for its own deviant purposes. In contemporary politics and administration, the semiautonomous nature of many social fields has been recognised by the state administration which
realises that it can accomplish very little unless it uses the mechanisms of semi-autonomous
social fields for its own purposes. This explains the horizontalised nature of modern law and
administration. The state finds strongly organised interest groups in its way all the time, and it
can accomplish little or nothing without getting the support of influential groups within the
semi-autonomous fields it would like to influence. The neat dividing line between public and
private legal powers that was part and parcel of the enlightened modern state is, to use Marx's
terminology with intentional irony, withering away. The consequence of this is that the law, in
our case the CL, which had developed its own functional rationality, becomes more exposed to
the functional rationality of semi-autonomous social fields. This results in supercomplexity, a
phenomenon that we can explain with the concepts of the structural, the non-structural and the
external rationality of the CL, as explained in section 2 sub C.
The dynamics of these developments have been analysed by
Trutz von Trotha in his book Recht und Kriminalität, Auf der
Suche nach Bausteinen für eine rechtssoziologische Theorie des
abweichenden Verhaltens und der sozialen Kontrolle, Tübbingen
1982.
73
Sally F. Moore, 'Law and social change: the semiautonomous field as an appropriate subject of study', Law and
Society Review Vol. 7 (1973), pp. 719-746.
74
52
Whereas the structural internal rationality of the classical model of the CL is GD, its nonstructural rationality depends on the social field it is operating in. Thus a CL against pollution
obviously aims at reducing the amount of pollution. The CL becomes supercomplex if it starts
reflecting upon its effectiveness in relation to its non-structural internal rationality. To do so, the
rationality of the semi-autonomous social fields it is operating in, which may be external to the
CL, must be taken into account. A particular field may be primarily orientated to economic gain
and not to minimising pollution. The application of the CL within such a field may be very
difficult unless important economic incentives are created and social control mechanisms which
already operate within such a semi-autonomous social field, are mobilised to make the law
effective. In this way the operation of the CL becomes much more interwoven with the social
field it operates in. Understandably, it then becomes difficult to keep thinking in terms of
general principles, rules and administrative policies for the CL as a whole. Instead of applying
traditional generalisations, the rationality of the law becomes more localised and
instrumentalist, that is, its expected effectiveness becomes decisive for the principles, rules and
policies that will be designed and followed.
Thus, in the given example of pollution control, three different rationalities have to be brought
together: the rationality of controlling deviant behaviour, the rationality of restricting pollution
and the economic rationality of doing this as efficiently as possible. Depending on the
circumstances, the best solution may be: technical prescriptions, flexible but increasing
restrictions on pollution whereby the technical aspects are left to the individual firm, or, finally,
the so-called 'bubble-concept', that is, pollution rights which are tradable between firms. The
first could be said to represent the traditional solution. The second takes a dynamical approach
to anti-pollution techniques, which implies a more negotiating, longer-term orientated style of
controlling crime. The third approach represents an even more "output-oriented" style of crime
control as it also includes the mechanisms of the economic rationality of pollution-rights within
a certain social field. In fact, the latter approach makes the participants in the social field to be
controlled interested in it not only on the passive side, but also on the active side, because
controlling competitors' environmental performance becomes part of one's efficiency
calculations. In order to design and apply efficient legal rules it will be necessary for authorities
to gather sufficient information and create sufficient willingness to cooperate with them among
the people and organisations who are being controlled. Creating an interest to do so
spontaneously, is therefore a smart device.
The three solutions have differential impacts on the technical and legal aspects of control of
violation of the norms, whereby civil, administrative and criminal-legal forms of control must
also be compared in terms of their efficiency and differential effects. Evidently then, the
rationality of criminal control becomes very much interdependent with the rationality of
pollution control and its social-economic aspects. In fact, the radicalisation of the process of
functional differentiation is not something which is restricted to the CL. Instead of thinking in
terms of "the" CL we will now think more and more in terms of the CL of a certain socio-legal
function (environmental law, media law) or object (computer law, space law) whereby the
supposedly general principles of the CL are transformed, restricted or refined depending on the
functional context. Similar processes of disintegration and resystematisation take place in the
fields of civil and administrative law, which figure in an interrelated way and sometimes as
functional alternatives in the context of such functions or objects. Processes of differentiation
and reintegration remain very dynamic, however, as legal problems can be related to different
subfields at the same time (e.g. pollution control in space).
53
Functional differentiation, that is, semi-autonomous social fields, horizontalisation and
supercomplexity, can also explain, but not necessarily justify, the way that the CL operates in
more traditional areas of criminality which have become organised. Take, for instance, the
highly dubious and illusory way that the CL operates against drugs-organisations. The drugscene is a semi-autonomous social field in which specific norms are maintained for the
participants in their different roles. The task of crime control is supercomplex because the
structural effects of the CL can be counter-productive in terms of health protection and the
frequency and severity of drug-related secondary crimes. In fact, as long as a viable form of
legalised drug-consumption has not been made possible, a realistic goal of criminal policies in
this area can hardly be to suppress the highly profitable illegal trade of drugs altogether. A
policy of relative containment is the maximum achievable. In order to realise this it will be
necessary to prevent monopolisation of the field by criminal actors. In order to strike down
potential monopolists it will be necessary to get the cooperation of competitors. This can be
accomplished only if drug-use and even trade is allowed within certain limits and criminal nonliability and safety of under-cover agents and "pentiti" can be guaranteed. Clearly, as soon as the
state can only control crime by making deals with criminals and their organisations, it operates
in a horizontal rather than in a vertical relationship to the social field it wants to control. It is
debatable, of course, if a radical decriminalisation and state-controlled commerce of drugs
would not be a much better policy. However, as long as trading of drugs is an affair of wellorganised criminals, it is difficult to see how the police could be at least somewhat effective
without using means of operation which are highly dubious from a classical point of view.
9.4 An evolutionary interpretation
Can we see the evolution of the CL making full circle then, as postclassical CL seems to
remobilise mechanisms of "primitive" social control in such diverse fields as the control of
drug-use and pollution, whereas whole schools of criminology now try to build upon such
mechanisms75? Is this a general trend of the evolution of law, as Donald Black has suggested76?
Or would it be more adequate to think in postmodern terms of unsynchronised paths of
evolution such that some parts of the CL can be in a more advanced stage and others, at the
same time, in a rather primitive one, as it takes time to learn how to cope with new social
phenomena and reconfirm the inherent doctrinal limits of the CL? Or is post-classical CL part of
a more general change in the way in which society observes itself, just as the classical CL was
when it became established? These are very speculative questions and the more so as the three
theories are not mutually exclusive.
The process of functional differentiation of modern society can be seen as a development of
possibilities of self-observation of increasing complexity. A first step was the differentiation
between state and society in which the unity of society is projected in a special institution, the
state, which facilitates the self-observation of society. Society duplicated itself in this way in
order to act upon itself, as if it were a human individual.
See John Braithwaite, Crime, Shame and Reintegration,
Cambridge (CUP) 1989.
75
Donald Black, The Behaviour of Law, New York (Academic
Press) 1976, last chapter.
76
54
The second step consisted in the legal regulation of this process of self-observation via legal
constitutions, fundamental rights and administrative procedures. The CL was a special part of
the latter because it is an "extraordinary" sort of law in the literal sense of the word. Unlike
ordinary administrative procedures, it deals with the contingency of the legal order itself. This
may seem to be true of any CL and not just of its classical model. However, the special nature of
the latter, which became more pronounced in the neo-classical model, is precisely its selfobservational character. It does not attempt to radically destroy whatever threatens its existence,
but it attempts to think about the most efficient way to control crime, conscious of the fact that a
capricious and limitless CL might be a much greater threat to the survival of the legal order than
crime itself.
The third step was that, as described, administrative, criminal and private law became more
directly interconnected in relation to specific social functions or objects rather than to their own
doctrinal unity. It is a further step in self-observation because, in our case, "crime" is no longer
seen as predominantly caused by individual deficiencies which have to be kept under control,
but as something which society and the law produce themselves and which may be better
prevented in coherence with non-criminal legal or non-legal means. In the classical model
"crime" was put in a functional perspective only in so far as "the offender" was treated as a
contingency with which society had to cope reintegratively. In the neo-classical model it was
recognised that reintegration can not just be a matter of the CL. Both systems were reactive,
homeo-static systems. By contrast, a post-classical CL not only regards the offender as a
contingency, but also crime itself. It is an interactive system. Its aim is to influence social
organisations, and not, at least not primarily, individuals. The world of organisations responds
to the intervention of the CLS. Some organisations are being excluded, others learn and adapt,
which may imply that they remove personnel that cannot adapt. Conversely, the CLS will have
to adapt again to its ever changing object.
If we try to account for this dynamisation of the classical model in terms of the Janus-face view,
one could say that the relationship between deterrence and rehabilitation has been reversed,
although it would be better, in connection with the replacement of individuals by organisations,
to speak about prevention and reform. Whereas in the (neo-)classical model rehabilitation was
conditioned on paying the price of punishment, in the post-classical model adaptation of
organisations has become a condition for prevention. Where reform of organisations cannot be
expected, destruction instead of rehabilitation through reform will prevail.
9.5 The justification of post-classical CL
Obviously the classical category of "mens rea" makes little sense in the context of a postclassical CL that is primarily about the accountability of organisations, and not, primarily at
least, about the responsibility of individuals. However, the negative consequences of criminal
responsibility of organisations are always borne, in the last instance at least, by individuals,
although these individuals are not necessarily the most responsible ones for the criminal liability
of an organisation. This raises the critical question of the justification of this sort of
responsibility. However, already in the neo-classical CL we find instances of functional
responsibility, that is, risk responsibility, which cannot be accounted for by the classical model
with its "mens rea"-requirement and which is usually called "strict liability". "Strict liability" is
a very controversial issue a thorough discussion of which would demand a separate article.
However, not all forms of strict liabilty are forms of risk liability as here intended.
55
Criminal risk responsibility, it would seem to me, is a form of accountability based on the
supposition that although "mens rea" may have been absent, an accountable person has
voluntarily taken a certain risk of causing harm by his participating in certain social activities. In
other words, risk responsibility is is a form of negligence that is just not as exceptional as
"ordinary" negligence is supposed to be. The exceptionality invloved in risk responsibility is not
the behaviour in question, but the nasty consequences of that behaviour. The rationale of such
criminal risk responsibility is that the chance that such harm will be caused, is, in general,
reduced by the threat of the CL. It is only in this way that we can explain e.g. that drivers who
cause a fatal accident due to an inattention that happens to practically all drivers now and then,
are punishable, even though its occurrence with fatal consequences is almost a matter of chance.
However, the reason that such behaviour must nevertheless be punished more severely than the
identical behaviour without such consequences, is that punishment is assumed to make drivers
drive more carefully.
Evidently, life in our "risk society" gives much more occasion also for criminal risk
responsibility than ever before. This is especially true were risks can better be prevented through
organisational reform. The principle of distribution of criminal risk responsibility can be derived
from this reflection. Obviously, those who are responsible for taking a particular risk in view of
the profits they envisage notwithstanding those risks, should be held accountable to the degree
in which they have failed to take the necessary measures they were competent to take in order to
prevent the occurrence of that risk or at least to insure those risks.
Although one should be wary of an idealisation of crime as far as the motives of offenders are
concerned, it seems to me that what are postclassical CL's deficiencies from a classical point of
view, can also be seen as a part of attempts to deal with crime in a more integrated and
sociologically prudent way. The inner wisdom that can be seen as hidden in the post-classical
CL is that it is much more efficient to prevent crime by changing social conditions than it is to
punish just to deter.