Dutch Justice and Neo-Marxist Radicalism

Last week a judge acquitted a twenty-year old Dutch-Somalian who had been accused of stealing a wallet in Rotterdam. The police were able to catch the perpetratror and found the stolen wallet on him. But in court the judge could not be convinced of his guilt. The thieve, who had just been released from prison after being convicted for another street robbery, denied any involvement. The judge believed him. For a remarkable reason. 'One has to assume that someone who has recently done time, has learned his lesson,' the judge argued.

For Dutch neo-conservatives, of whom there are still too few, it is difficult not to see the acquittal in the light of the 68-revolution, when the phenomenon of crime was reduced to a mere symptom of societal inequality. If only we stopped accepting the gap between rich and poor - if only we invested more in the marginalized victims of our prejudiced society, then, crime would simply cease to be. Retaliation, one of the most important aspects of criminal justice, was no longer considered a valid motive. Punishment, after all, would only increase the marginalization of the already marginalized. Eversince judges seem to be more busy resisting the "popular" demand for effective punishment than actually enforcing the law.

Most people don't even know how radical the Dutch elite had become during the late 60s and early 70s. Take, for instance, Louk Hulsman, professor of law at Erasmus University in Rotterdam (1963-1986), and key member of the progressive Coornhert League for reformation of criminal law. Hulsman felt that criminal justice had failed. Fully in line with the teachings of the post-modern activist Foucault, he came to the conclusion that the law was no more than 'an instrument of oppression'. In the early 70s, he radicalized even further, eventually to become a socalled 'abolitionist'. His abolition, though, had nothing to do with slavery. Hulsman actually proposed to abolish criminal law, so as to put an end to the criminalization of certain types of behavior by the state.

Fortunately, the abolitionists were even too radical for most Dutch intellectuals. This does not mean, however, that the debate at that time went beyond the overlap between neo-marxism and post-modern relativism. An important player was the juridical sociologist Toon Peters (1936-1994), one of Hulsman's contemporaries and a former student at Berkeley University. Peters, too, was disappointed about the effects of criminal justice. Yet contrary to Hulsman, he did not believe in abolitionism. Instead, he argued, criminal law should be made a tool in the hands of the oppressed. During his '72 inaugural lecture at Utrecht University, Peters proclaimed that 'justice should not be impartial. It should rather be on the side of those who are powerless, those who are put under authority, those who are at risk of being marginalized.' Peters urged his colleagues and students to become activists and take part in the battle against state oppression. In juridical circles he is therefore still remembered as the inventor of 'academic activism'.

It has become a common-place, nowadays, to say that the sons and daughters of the '68 revolution have dominated or even hijacked the juridical and political debate in the Netherlands during the 70s, 80s and 90s, indeed a larger part of the former century. And because of their long-lived dominance, the post-modern paradigm is far from dead today.

A good example of the perpetuation of neo-marxist radicalism in the Netherlands is Bart Stapert, board member of the Dutch section of Amnesty International. In the 90s Stapert had been dedicating his life to the ultimate victims of state oppression, offering legal assistance to US death row convicts. In 2001 Stapert was rewarded for his ideological activism, when Utrecht University, an old Coornhert League stronghold, decided to bestow upon him an honorary doctorate at the Law department. The position offered Stapert an academic safe-haven from where he could undisturbedly spread his neo-marxist views.

In an interview following his appointment, Stapert seized the occasion to blow up at his natural allies, the Social Democrates, infuriated by their hesitant approval of tougher punishments: 'The Christian Democrates and even the Social Democrates are now calling for tougher punishments. This is all the result of the notion that criminal law can be used to tackle crime. Yet we know that thouger punishments are merely a sign of impotence - that we have already been too late. In my view, the causes of crime and the suspect's background are of much greater importance.'

In the light of this intellectual and juridical climate, it is of course no wonder that judges are often perceived as radically soft. It is no wonder either that crime rates have been steadily on the rise during the seemingly endless aftermath of the '68 revolution. If not even law professors believe in the law, why should a simple thug?

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- Guthwirth, S. & P. De Hert (2004) Vergelding, een kernbegrip van het strafrecht.
- Smits, H. (2007) Lezing gehouden voor het Agnietenconvent te Gouda, op zondag 11 maart 2007.
- Haenen, M. Het grote complot. In: NRC Handelsblad.
- Faber, S. & S. van Ruller (2004) Een criminoloog in juristenvacht: interview met L. Dupont. In Veen, T.J. (ed.): Prominenten kijken om : achttien rechtsgeleerden uit de Lage Landen over leven, werk en recht. Hilversum.