A neutral conception of punishment. A philosophical analysis

PhD ceremony: Mr. V.C. Geeraets, 16.15 uur, Doopsgezinde Kerk, Oude Boteringestraat 33, Groningen

Dissertation: A neutral conception of punishment. A philosophical analysis

Promotor(s): prof. A.R. Mackor, prof. W. van der Burg

Faculty: Law

The claim central of Geeraets’s dissertation is that a neutral conception offers a better interpretation of the concept of punishment than a normative conception. The point of the neutral conception is that it characterises a number of impositions as punishment which are normally not classified as such. Particularly, the neutral conception classifies the Dutch reparative sanction (administrative law), the measure of TBS (a response to the violation of a norm by someone who is suffering from a mental disease) and the measure of ISD (a response to repeat offence) as punishment. The normative conception - in contrast - stipulates that these sanctions are not punishment. Despite the fact that the normative conception is better in line with how the concept of punishment is employed in the legal arena, Geeraets maintains that the neutral conception is more fruitful. Adoption of the normative conception can easily result in what he calls quietism. By denoting these sanctions as something other than punishment, it encourages a quietism that takes them to be therefore less problematic than punishment, or requiring less in the way of protective procedures and constraints than punishment does. Instead, the neutral conception obliges us to bring into the open what choices we make and to make explicit what, for example, the basis is for a differentiation in legal protection.

The goal in this dissertation is to develop a neutral conception and to discuss and rebut possible objections. To this end, the following subjects pass in review: the justificatory theories of retributivism and utilitarianism, the legal principle ‘no punishment without guilt’, the principle of proportionality, the distinction between direct and oblique intent and the idea that by means of punishment the personality of the offender is respected. In each case, Geeraets investigates how the idea in question relates to the concept of punishment.