Privatising Criminal Justice? Shopping in the Netherlands
| Author | Patrick J. V. Van Calster |
| Published date | 01 June 2011 |
| Date | 01 June 2011 |
| DOI | 10.1350/jcla.2011.75.3.706 |
| Subject Matter | Article |
Privatising Criminal Justice?
Shopping in the Netherlands
Patrick J. V. Van Calster*
Abstract The Netherlands is encouraging Public Private Partnerships
(PPP) for reducing problems of crime and anti-social behaviour. This
article reports research done by the author on the Collective Shop Ban,
allegedly the most successful form of Public Private Partnerships currently
operating in the Netherlands. With the Collective Shop Ban, shopkeepers
have their own measure to keep individuals who exhibit anti-social
behaviour from entering their shops. In this way private parties, i.e.
shopkeepers and security personnel, are co-responsible for detecting and
punishing classic punishable acts such as shoplifting and fraud. The Col-
lective Shop Ban is an interesting measure to study, all the more because
it is no longer based primarily on criminal law, but on civil law. It is
interesting to see to what extent the Collective Shop Ban differs from the
Dutch criminal law approach, what this civil law approach means for the
perpetrator, and what are the legal and societal consequences.
Keywords Anti-social behaviour; Public Private Partnerships;
Responsibilisation; Collective Shop Ban; the Netherlands
Problems in public space are a matter of widespread debate. Just look at
any daily paper and public space is synonymous to crime, filth, noise,
traffic jams and juvenile delinquents hanging around street corners.
One of the sharpest analyses of the problem was written by the German
essayist Hans Magnus Enzensberger. In his essay Eye to Eye with Civil War,
he notes that a special form of war is raging in the inner cities on the part
of young men mainly motivated by sheer boredom. This small-scale or
molecular civil war, Enzensberger feels, is the primary form of all
interpersonal conflicts. It does not need any outside forces to escalate, it
feeds itself. According to Enzensberger,1‘There is gradually more and
more garbage on the streets. Needles and broken beer bottles accumu-
late in the park. The same graffiti appear on walls all over, and the only
message is autism (. . .) It stinks of piss and shit in the front yards. These
are stupid little declarations of war that the experienced city dweller
knows how to interpret.’ There is no denying that the state does all it can
to put an end to this war, but it is startling to see how little we really
know about what is being accomplished and what is not.
One way the Western state tries to intervene in the inner cities is
based on the conviction that people are responsible for their own lives
* Professor of Criminology, Faculty of Law, Rijksuniversiteit Groningen, the
Netherlands; e-mail: p.j.v.van.calster@rug.nl. The author would like to thank Marc
Schuilenburg. Translation of this article was financed by the Translation Fund of the
Royal Netherlands Academy of Arts and Sciences and Stichting Reprorecht.
1 H. M. Enzensberger, Oog in oog met de burgeroorlog (De Bezige Bij: Amsterdam 1994)
40.
204 The Journal of Criminal Law (2011) 75 JCL 204–224
doi:10.1350/jcla.2011.75.3.706
and should be held accountable. In other words, they should be respons-
ibilised.2Responsibilisation is rooted in the idea that the traditional
criminal law approach is too limited to combat crime in public space
effectively. Crime is a societal problem that needs to be addressed with
the help of forces in society. From this perspective, the state wants to
make the institutions closest to the population co-responsible for ad-
dressing and combating crime. In other words, combating crime is no
longer solely a matter for the criminal law apparatus, but also one for
schools, private citizens, volunteers, insurance companies, local admin-
istrations, hospitals and so forth.
At the executive level, this has led to a wide range of new actors
becoming part of the detection of security risks and the maintenance of
security in public space, each in their own way. In the ideal situation,
successful responsibilisation should lead to a certain extent of self-
reliance on the part of the parties who have been made responsible.
However, although a great deal of research has been conducted on the
efficiency and effectiveness of the criminal law system and its actors,
very little attention has been devoted to the unique role the new private
actors have come to play in our immediate vicinity, the supervision they
exercise there, the techniques they use, the sentences they pronounce
and the truths they adhere to. The question is whether the instrument of
responsibilisation is indeed as legitimate and successful as the state
seems to think.
We would like to make a contribution towards this research and
concentrate in this article on the Collective Shop Ban, a step taken in the
Netherlands in an effort to make shopkeepers co-responsible for main-
taining security. The new measure was introduced in downtown The
Hague to prevent anti-social behaviour. Shopkeepers developed their
own measure to keep individuals who exhibit anti-social behaviour
from entering their shops throughout the downtown area. In this way
private parties, i.e. shopkeepers and security personnel, are co-
responsible for detecting and punishing classic punishable acts such as
shoplifting and fraud. From the angle of responsibilisation, the Col-
lective Shop Ban is an interesting measure to study, all the more because
it is no longer based primarily on criminal law, but on civil law. It is
interesting to see to what extent the Collective Shop Ban differs from the
Dutch criminal law approach, what this civil law approach means for the
perpetrator, and what the legal and societal consequences are.
We do not solely focus on the Collective Shop Ban policy with its
emphasis on agreements, aims, shared convictions and so forth. We are
also interested in the daily practice generated by the policy. After all, in
principle it is not mandatory for shopkeepers to enforce the Collective
Shop Ban. They can do so as they see fit and take new steps of their own,
which in turn can potentially influence the official policy. It is interesting
to see whether they take advantage of this opportunity and how they do
2 D. Garland, The Culture of Control: Crime and Social Order in Contemporary Society
(Chicago University Press: Chicago, 2001); D. Garland, ‘The Limits of the Sovereign
State: Strategies of Crime Control in Contemporary Society’ (1996) 36(4) British
Journal of Criminology 445–66.
Privatising Criminal Justice? Shopping in the Netherlands
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