Criminal Law Adrift
Criminal law is likely to become overburdened. Therefore a renewed reflection on the course of criminal law is required.
In my inaugural lecture on June 28th I stated that, due to the fact that developments in criminal law have been so stormy the last few decades, the question of why criminal law actually exists seems to have been repressed to the background. It is a fact that criminal law as a legal domain has swollen over the last few decades; one law proposal falls over the other. Both politics and society are demanding more and more of criminal law: not only the effective combat of crime and due process for the accused, but also the prevention of criminal offenses and satisfying the victim and public opinion. In this state of affairs, criminal law is likely to become overburdened and disappointment is already ingrained in advance. Therefore I called in my inaugural lecture for a renewed reflection on the course of criminal law, to allow the legislator – more than is the case right now – to give shape to criminal law in a consistent way.
Demarcation of criminal law with administrative law
More specifically, I stated that some clear choices must be made, especially when it comes to the position of the victim in criminal proceedings (which has been strengthened significantly in recent years) and to the demarcation of criminal law with punitive administrative law. At present, it is far from clear when norms are enforced by criminal law and when by punitive administrative law. Partly based on the well-known criteria for criminalization – developed by legal scholars in the second part of the 20th century – this division should be made more consistent and transparent. However, this requires a reconsideration of these criteria, taking into account the reality that criminal law over the years, due to the introduction of the administrative penalty, has got stiff competition from administrative law when it comes to the imposition of punitive sanctions. At the moment more than eighty laws are (at least partly) enforced by an administrative penalty. The European dimension should also be involved in this discussion, as the question of by which legal domain a certain norm will be enforced is no longer made exclusively on the national level.
To prevent criminal law becoming more and more adrift, a renewed reflection on the course of criminal law is required. This is not only a responsibility for the Dutch legislator, but also for Dutch legal scholars. They should offer the legislator the essential tools to give shape to our criminal law in a more consistent way.