The saying often goes that history repeats itself. However, this is not entirely accurate. It’s people who repeat history. Not necessarily because they fail to learn from it, but rather because they refuse to learn history’s important lessons. And if too many people fail to learn from past mistakes, it will only have negative consequences for society. That is why we, as an intelligent species, need to be able to spread awareness about conduits of racism and hatred across Europe. But how can this be achieved? Through learning more about the theory and practice of preventive justice, there are several things a country can do.
By Maureen van der Kris*
Only a few years ago, during the refugee crisis of the 2010s, it looked a lot like Muslims were the Jews of the twenty-first century. Islamophobia reached new highs due to terrorist attacks from ISIS, which also sparked hate crimes against innocent Muslims fleeing from ISIS (vander Taelen, 2016), as well as inciting hostility and tensions towards Muslims living around the world. Then COVID hit, and hate crimes seemed to be redirected at the East Asian community (Aziz, 2020). In 2023, the new generation is witnessing what their predecessors before them had lived through: blatant antisemitism is retaking the spotlight (Simsek, 2022).
The saying often goes that history repeats itself. However, this is not entirely accurate. It’s people who repeat history. Not necessarily because they fail to learn from it, but rather because they refuse to learn history’s important lessons. And if too many people fail to learn from past mistakes, it will only have negative consequences for society. That is why we, as an intelligent species, need to be able to spread awareness about conduits of racism and hatred across Europe. But how can this be achieved?
Through learning more about the theory and practice of preventive justice, there are several things a country can do. Measures of preventive justice are imperative to make sure populism cannot gain momentum and take over the political and legal structures across Europe as it did in the 1940s. This essay will explain how preventive justice can help us establish a risk-averse society and what these terms mean.
What is preventive justice and how does it work?
In most cases, preventive justice is simply a concept. It entails calculating the risks of harm, before any harm has occurred and taking measures against the would-be perpetrators (Ashworth et al., 2013). It establishes a system that can make people accountable, and thus prevent potential corruption and any other crime that can violate democratic values. Elements of preventive justice exist within criminal law. Many modern criminal law systems are centered around judging and punishing criminal acts and incorporate some preventive measures. For instance, for certain crimes, a crime attempt would be as illegal as committing a crime. These crimes vary across Europe, but the consensus is if the nature of the crime is severe, even an attempt will be punished more severely compared with other criminal attempts (Kelk & de Jong, 2019).
The criminalization of an attempt to commit certain crimes can be considered a function of preventive justice. This simplified version explains how preventive justice works in the criminal law system, but how does it help a democratic society? It is argued here that it can help in many ways -but these need to incorporate the political and criminal justice system to produce practical solutions. One of these problems is the supposedly thin line between freedom of speech and discrimination.
Pulling the reins on democracy
The line between freedom of speech and discrimination is not very thin at all. For far-right populists, the line doesn’t exist at all, and they promote that their discriminatory ideas can only be seen as freedom of speech. This freedom of speech, they argue, has to be protected at all costs (Pennacchia, 2020). The hypocrisy of that statement will not be discussed here, but it is relevant to note the way it has led to cases of domestic terrorism. In France, for example, a Kurdish community center in Paris was attacked by an active shooter just before Christmas. It was reported that this incident was resulted in three civilian deaths, and the attacker had formerly been charged with a hate crime in the previous year (NPR, 2022). It seems that he felt safe enough to repeat his actions in the current political climate of France and is an example of the danger and progression of hate speech cloaked as ‘free’ speech.
These incidents could have largely been prevented by limiting what constitutes as freedom of speech. One may claim that this is the opposite of preserving a democratic society. Still, history has proven time and time again that having no limits on certain democratic principles will result in populists using those exact principles for their benefit and to undemocratic ends, as seen in the case of the rise of Hitler. Due to the lack of limitations on unacceptable speech, Hitler had the freedom to use his hatred for Jewish people as a campaign point (Wilde, 2020).
Although hate speech and hate crimes were regulated more strictly after WWII (i.e. by Germany banning the Nazi flag), there are still discussions about the line between freedom of speech and discrimination. Technically, the criminalization of specific insults is a good start. However, the burden of defining what counts as a discriminatory remark, an insult, falls on the judges. Judges could be very strict when handling lawsuits, as they have been during the Wilders trial in the Netherlands. The Wilders trial concerned a statement made by Dutch far-right politician Geert Wilders during a rally in the 2010s. Wilders asked his supporters if they wanted “more or fewer Moroccans” in the country, to which they responded by cheering “less, less, less!” The Moroccan community, in response, sued Wilders for his discriminatory remarks and racist mobilization. The Dutch supreme court responded by charging Wilders with spreading hate. However, the court also stipulated that hate speech had no associated intent to act (Wilders v. Plaintiffs, 2009).
The result of the hearing disillusioned some people in the Moroccan community, as Wilders’ specific statements were not considered when judging the case. Some contended that Wilders’ party should have been abolished after that statement. Ethically, one can request a more severe punishment after such incidences of racism. Legally speaking, it is much more complicated.
Preventive justice in the courtroom
In most Western countries, judges can only punish a suspect according to the material principle of legality. In many EU countries, this has been defined as the Nulla poena sine lege principle, or “no punishment without law.” It means a political party cannot be declared illegal and abolished for maintaining an ideology harmful to a democratic society without legal codes. It also means that a judge cannot declare that a statement constitutes an illegal insult when the verdict is riddled with violations of aspects of the legality principle. One of these aspects is prohibiting an overly extensive interpretation by a judge. For example, if the suspect has discursively targeted a person of color, this can be interpreted as an illegal insult under ideal circumstances, but the suspect cannot be charged with a hate crime. This would be different if the suspect used a racial slur to insult the person of color (de Hullu, 2021).
Laws that prevent hate crimes and the strict interpretation of these laws in accordance with the legality principle can work very well. But there are also cases in which laws have an adverse effect stemming from discriminatory policies, which should be illegal. Take the Dutch surcharge, for example. This so-called libertarian policy is aimed to combat fraud committed by people not legally entitled to childcare allowance. However, the policy culminated in a nationwide scandal. It used a self-learning algorithm to identify fraud and, in the meantime, asked inspectors to have much stricter and limiting judgement on childcare allowance specifically for individuals with a foreign last name. Following the outrage, the Dutch government resigned in 2021. However, from 2018 onwards, people have been suffering due to the racist nature of the Dutch surcharge policy (NOS, 2020).
The law does not exist in a vacuum. Democratic practices and a working legal system depend on society, political accountability, and social support. Here I want to add to my discussion the kinds of social context that can help create a safe space for all and a flourishing civil society.
Living in a ‘risk-averse society’
According to German sociologist Ulrich Beck, a risk-averse society can be described as a society in which legal systems actively try to prevent the risk of certain crimes being committed (Beck, 2003). So, a risk-averse society supports the ideals of preventive justice. Preventive justice can establish the socio-legal infrastructure of a risk-averse society and vice-versa. Some speculate that preventive justice can establish foundations for a risk-averse society. Yet a risk-averse society might undermine democratic values (Barone, 2022).
This would only be true if preventive justice is rooted in unrealistic fears and undemocratic practices. Like the two faces of the Janus or a fire that can both cook or burn, the concepts and ideals of preventive justice or risk-averse society can yield either positive or negative results depending on if they are in the hands of well-intentioned or selfish people. The dilemma of what counts as liberty, if it has limits, if so, how to develop policies that protect freedoms without violating principles of democracy remains a big question, which motivates us to do more theoretical and practical discussions about how to establish a safe space to realize the ideals of preventive justice and a risk-averse society.
In an age where war crimes and injustice make us question the degree to which our civilization has actually evolved, the question is not whether we want to be risk-averse; we do not have a choice. This is strikingly clear when we acknowledge that nuclear power has become a staple of everyday discussions in newspapers, making us believe the doomsday is coming. The choice that falls upon us all is between whether we want to live in a society where the freedom to say whatever we want risks supporting the rise of far-right populism and encouraging hate and even violence. To keep our democracies afloat, we must invest in forming risk-averse spaces and use preventive justice to our advantage. Only then can we fight populism effectively on a more significant level and prevent the atrocities from history being repeated.
(*) Maureen van der Kris is studying Law at Utrecht University (UU) in the Netherlands. She is in the second year of her bachelor’s degree and at the very start of her legal career. Before joining ECPS, she wrote articles for the members’ magazine of Ad Informandum, the student association for criminal law at UU. Her main interests are women’s rights and preventive justice, while her favorite university subjects are international- and criminal law. As she has been personally confronted with various criminal offences during her childhood. Her goal is to become a criminal judge. She aspires to work at the Dutch supreme court or the ICC one day.
— (2020). “Commissie: Ongekend Onrecht in Toeslagenaffaire, Beginselen Rechtsstaat Geschonden.” NOS. December 17, 2020. https://nos.nl/collectie/13855/artikel/2361021-commissie-ongekend-onrecht-in-toeslagenaffaire-beginselen-rechtsstaat-geschonden (accessed on January 29, 2023).
— (2022). “Kurdish People Protested in Paris After Three Were Killed in A ‘Racist’ Shooting.” NPR. December 25, 2022. https://www.npr.org/2022/12/25/1145467662/kurdish-people-protested-in-paris-after-three-were-killed-in-a-racist-shooting (accessed on January 29, 2023).
Ashworth, Andrew; Lee, Ambrose & Zedner, Lucia. (2013, July). “Preventive Justice Project.” Oxford law. https://www.law.ox.ac.uk/preventive-justice-project#:~:text=’%20In%20its%20many%20guises%20preventive,lest%20they%20should%20do%20harm (accessed on January 29, 2023).
Aziz, Sahar. (2020). “Anti-Asian Racism Must Be Stopped Before It Is Normalised.” Al Jazeera. April 12, 2020. https://www.aljazeera.com/indepth/opinion/anti-asian-racism-stopped-normalised/ (accessed January 29, 2023).
Barone, Michael. (2022). “The Democratic Party’s Risk Aversion Is Harming Us All.” American Enterprise Institute. October 13, 2022. https://www.aei.org/op-eds/the-democratic-partys-risk-aversion-is-harming-us-all/ (accessed on January 29, 2023).
Beck, Ulrich. (2003). Risikogesellschaft. Suhrkamp Publishers.
Beck, Ulrich. (2003). Risikogesellschaft. 17.” Auflage München.
de Hullu, Jaap. (2021). Materieel Strafrecht. Over Algemene Leerstukken Van Strafrechtelijke Aansprakelijkheid Naar Nederlands Recht. Deventer: Kluwer Publishers.
Kelk, Constantijn & de Jong, Ferry. (2019). Studieboek Materieel Strafrecht. Deventer: Kluwer Publishers.
Pennacchia, Robyn. (2020). “Right-Wingers Hate New ‘Free Speech’ Platform Parler, You Can’t Even Own The Libs There.” Wonkette. July 6, 2020. https://www.wonkette.com/right-wingers-hate-their-new-free-speech-social-media-site-miss-trolling-us-already (accessed on January 29, 2023).
Simsek, Ayhan. (2022). “Germany’s Jewish Community Fears Rise in Antisemitic Attacks in Winter.” Anadolu Agency. November 8, 2022. https://www.aa.com.tr/en/europe/germany-s-jewish-community-fears-rise-in-antisemitic-attacks-in-winter/2732965 (accessed on January 29, 2023).
vander Taelen, Luckas. (2016). De grote verwarring: Hoe moeten we reageren op het islamitisch fundamentalisme? Antwerp: Houtkiet Publishers.
Wilde, Robert. (2020). “Hitler’s Rise to Power: A Timeline.” Thoughtco. August 27, 2020. https://www.thoughtco.com/hitlers-rise-to-power-timeline-1221353 (accessed on January 29, 2023).
Wilders v. Plaintiffs.  GHAMS K08/0309, K08/0374, K08/0277, K08/0444, K08/0310, K08/0328, K08/0329, K08/0330 & K08/0353. https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:GHAMS:2009:BH0496 (accessed on January 29, 2023).