This blog is based on my essay, written thee years ago for a bachelor’s minor in Philosophy, focusing on the role of retributive punishment within the Dutch legal system.
Jan-Jesse Lieftink (TBS lawyer) on EenVandaag (2021): ‘’Sentences are getting higher and higher. The retribution component has grown in legislation and with it the sentences imposed by judges. There is currently more than a doubling in sentencing levels than 10 years ago. We are moving more and more towards an eye for an eye, tooth for a tooth society.‘’
The Netherlands is a democratic constitutional state that strives for a just society. Everyone in this society is entitled to independent, fair and impartial justice. The rule of law, its independence, and equal rights for all are safeguarded by the judiciary (The Judiciary, 2021). In the Dutch rule of law, a judge has social responsibility and ensures confidence in a just society. As a result, a judge makes decisions that can have far-reaching effects on people’s lives; for example, sentencing someone to a lengthy period of confinement. A judge respects the interests of both parties and is aware of the social impact a case can have on people’s lives (De Rechtspraak, 2021).
One of the fundamental pillars of punishment in the Dutch legal system is retribution as its goal (De Rechtspraak, 2021). Adding a suffering element in punishment, retaliates the suffering that an offender has caused a victim or society. The victim and society deserve reparation, as it is essential for maintaining public trust in the justice system. The legitimation theory of retribution in criminal law surfaces from retributivism, which is based on Kant’s retributive theory and stands for punishment justification. This theory suggests that when an offender breaks the law, justice requires the punishment to be proportionate to the crime committed. This retribution is not meant as revenge, but of equalisation, as the damage done to the rule of law must be repaired to the extent possible. But how can we rightly determine the fundamentals to decide what (degree of) punishment compensates for the harm of a particular crime?
Moreover, the purpose of punishment for retribution is to add suffering to lawbreakers, which seems only justified when it presupposes that the convicted person can be held responsible for his actions. Thus, it can be inferred that retributivism places great importance on the concept of humans as rational beings with the freedom to choose their actions, commonly referred to as free will (Stated, T. 2021). However, nowadays the existence of free will is more and more questioned, as scientific neurological research increasingly shows that we act from an abnormality in our brains. Our conscious decisions are the outcome of unconscious processes over which we have no ultimate control. This suggests that there is increasingly little or no reason to assume the existence of free will, or only to a limited extent (Steenhuis, P. H., 2010).
In conclusion, since retribution remains a cornerstone of the Dutch legal system, the preceding paragraphs serve as a starting point for a critical re-evaluation of its foundations, purpose and contemporary relevance.