Substantive Criminal Law
Week 1
Chapter 1: Theories of punishment
The primary goal of punishment seems to be retribution; people deserve their punishment
because the crimes they committed are not yet atoned for.
Life imprisonment means de facto detention for the rest of one’s life. In the UK and the
Netherlands this truly means for the rest of one’s life. Most other European countries have
implemented a review mechanism; in those countries someone’s life sentence can be
reviewed after a certain period of time.
Sentences can have a negative impact on offenders as it can result in the loss of one’s job,
house and/or partner, it can lead to stigmatisation and it can even have a criminogenic effect
because prison can in fact sometimes be a ‘high school for criminals’.
Concept of punishment:
Philosopher Hart defines punishment based on the following 5 cumulative elements:
1. It must involve pain or other consequences normally considered unpleasant;
2. It must be for an offence against legal rules;
3. It must be of an actual or supposed offender for his offence;
4. It must be intentionally administered by human beings other than the offender;
5. It must be imposed and administered by an authority constituted by a legal system
against which the offence is committed.
Packer added a 6th element:
6. Goal for which punishment is imposed is retribution and/or prevention.
Punishment is defined by others as:
‘To reprove and to call to order’ Hulsman
‘The disapproval and rejection of the action’ Glastra van Loon
‘To reproach or to blame normatively, so Gutwirth and De Hert
that the person addressed suffers’
‘A government response to a violation of a De Hullu
penal provision expressed in the context of
a criminal process’
Hart and Packer: punishment always contains the intentional addition of suffering, while
measure like forced treatment in a clinic do not; they exclusively focus on prevention and
reparation.
Walgrave: sanctions have to fulfil all of the following conditions in order to be identified as
forms of punishment:
(a) Coercion (sanction is imposed top-down by the government to the offender)
(b) Suffering (imposition of the sanction is accompanied by the offender’s suffering)
(c) Intention (suffering is not a side effect of the sanction but is intentionally inflicted on
the offender by means of the sanction)
(d) Relation (there is an inextricable connection between the crime committed and the
sanction imposed)
The use of criminal law should be used as the last resort (ultimum remedium). Criminal law is
a form of public law, which means law enforcement whereby there is a vertical legal
relationship between the government and the citizen (the offender).
Week 1
Chapter 1: Theories of punishment
The primary goal of punishment seems to be retribution; people deserve their punishment
because the crimes they committed are not yet atoned for.
Life imprisonment means de facto detention for the rest of one’s life. In the UK and the
Netherlands this truly means for the rest of one’s life. Most other European countries have
implemented a review mechanism; in those countries someone’s life sentence can be
reviewed after a certain period of time.
Sentences can have a negative impact on offenders as it can result in the loss of one’s job,
house and/or partner, it can lead to stigmatisation and it can even have a criminogenic effect
because prison can in fact sometimes be a ‘high school for criminals’.
Concept of punishment:
Philosopher Hart defines punishment based on the following 5 cumulative elements:
1. It must involve pain or other consequences normally considered unpleasant;
2. It must be for an offence against legal rules;
3. It must be of an actual or supposed offender for his offence;
4. It must be intentionally administered by human beings other than the offender;
5. It must be imposed and administered by an authority constituted by a legal system
against which the offence is committed.
Packer added a 6th element:
6. Goal for which punishment is imposed is retribution and/or prevention.
Punishment is defined by others as:
‘To reprove and to call to order’ Hulsman
‘The disapproval and rejection of the action’ Glastra van Loon
‘To reproach or to blame normatively, so Gutwirth and De Hert
that the person addressed suffers’
‘A government response to a violation of a De Hullu
penal provision expressed in the context of
a criminal process’
Hart and Packer: punishment always contains the intentional addition of suffering, while
measure like forced treatment in a clinic do not; they exclusively focus on prevention and
reparation.
Walgrave: sanctions have to fulfil all of the following conditions in order to be identified as
forms of punishment:
(a) Coercion (sanction is imposed top-down by the government to the offender)
(b) Suffering (imposition of the sanction is accompanied by the offender’s suffering)
(c) Intention (suffering is not a side effect of the sanction but is intentionally inflicted on
the offender by means of the sanction)
(d) Relation (there is an inextricable connection between the crime committed and the
sanction imposed)
The use of criminal law should be used as the last resort (ultimum remedium). Criminal law is
a form of public law, which means law enforcement whereby there is a vertical legal
relationship between the government and the citizen (the offender).
