At the department of criminal law a group of PhD and master students regularly meet to read classical texts on criminal law and legal theory. At the last meeting we discussed professor Vrij’s valedictory lecture (Ter effening), held in 1947, on the principle of opportunity for public prosecutors. What struck me more than the subject matter were his oblique remarks on public thinking about criminal law in the immediate postwar years.
The second world war had confronted people with excessive authoritarianism, which resulted in a period of general suspicion of repressive authority exercised by the state. Vrij emphasizes public resentment concerning the treatment of political prisoners, authoritarian behaviour by the state and the risk of losing prestige by responding overly repressively to deviant behaviour. He perceives repression as an evil that sometimes outweighs the evil done by the perpetrator. This is what contrasts most with the current zealotic belief in criminal law.
The current trend goes towards more criminal law, not less. There is no public resistance to the constant creep of investigative competences, data mining, or criminal charges for truly minor offences. Calling a police officer a ‘pancake’ might result in a charge of insulting behaviour, the police apparently have no fear of losing esteem. Forms of youth crime that would earlier have resulted in a sermon are now reported to the police. The fight against terrorism is taken to justify arbitrary body searches at airports, the exchange of personal data within and without the EU, and a plethora of other investigative techniques. We seem to be willing to pay whatever it costs for a feeling of security. Or perhaps we don’t even see repression through criminal law as a cost. A greater turn, in just sixty years, in public opinion on state authority is hardly imaginable.
But does it really make us more secure to provide criminal justice authorities with large amounts of powers that can be used discretionarily? And does this form of security also imply justice? Research conducted in mainly the Anglo-Saxon world constantly shows that all use of discretionary powers leads to selection. If police officers are free to decide who to stop and search, they will not stop and search a representative selection of citizens. Men, young people, and especially ethnic minorities will be overrepresented. The same happens when deciding whether or not to prosecute, to convict and to send to prison. So discretionary use of power might make the world more secure for some, but also more unjust for others.
The decades after Vrij’s lecture saw the emergence of critical (legal) theory, a school of thought inspired by Marxist ideas of reproduction of power relations through all kinds of institutions, including the law. It seems to me that this movement never really set foot in Dutch criminal law, perhaps due to its very ideological and explicitly emancipatory approach. Yet, critical theory could make us aware that the exercise of state power may not necessarily be for the best – even if exercised with the best intentions. The Rechtsstaat is based on institutionalized mistrust, that is why checks and balances on state power are pivotal. Perhaps a slight touch of old fashioned critical thinking about state power and its necessary checks could counter the thoughtlessness with which we put our trust in the criminal justice system. Security and justice are not the same.