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05

Oct

2020

Untangling the Transnational Law and Politics of Criminal Justice

 
 

Criminal law has long served as a powerful symbol of the state’s monopoly over the use of violence. However, as the world becomes more economically, technologically, and socially interconnected, domestic processes of criminal justice policymaking are increasingly enmeshed within processes of transnational legal ordering. For example, domestic processes of legislating and enforcing drug laws are governed by international treaties, monitored by international organizations, and, in addition, assessed by the United States government which uses a transnational drug certification process that includes the threat of sanctions for noncompliance. In parallel, models of domestic drug legislation (such as the Dutch and Canadian models of decriminalizing and legalizing cannabis use) influence the development of drug policies in other countries, and they stimulate international organizations (such as the World Health Organization) to adapt existing international standards to accommodate changing state practices.

Our new book, Transnational Legal Ordering of Criminal Justice, assesses the increasing intensity, complexity, and salience of efforts to establish shared standards of criminalization, policing, sentencing, and punishment across jurisdictions. It illustrates the ways in which these processes integrate top-down, bottom-up, and horizontal forms of transnational norm-making and practice. The transnational legal ordering of criminal justice varies across time, space, and subject matter, which the book examines through case studies assessing the formation, institutionalization, and implementation of transnational criminal justice norms in ten issue areas: money laundering, corruption, human trafficking, migration, drugs, atrocity crimes, transitional justice, prison conditions, capital punishment, and the prosecution of sexual violence. Two theoretical chapters bookend the case studies to develop and refine socio-legal theories of transnational legal ordering, and to assess what is distinctive about transnational legal ordering in the field of criminal justice.

Our book demonstrates that the success of transnational legal orders of criminal justice in achieving advocates’ regulatory goals depends on a combination of top-down structural factors, including the institutional design, governance capacities, and perceived legitimacy of the institutions that formulate and implement normative prescriptions, and bottom-up factors, including the attitudes and practices of national and local actors, as well as those who serve as intermediaries between transnational and domestic norm-making and practice. Among the case studies’ findings is that transnational criminal justice orders, even when they have questionable success and, in some cases, have counterproductive impacts, continue to grow institutionally and expand their regulatory reach. Once transnational legal orders institutionalize distinctive modes of framing social problems and establish bureaucratic structures through which resources are channeled, they can become entrenched, reducing their vulnerability to criticism for their failures to combat criminal activities and human rights abuses. The proliferation of transnational legal orders of criminal justice over the last decades often serves not just functionally, but also symbolically to reassure the public that governments are taking serious measures to address security threats associated with the destabilizing impact of globalization processes and transnational crime.

Transnational Legal Ordering of Criminal Justice edited by Gregory Shaffer and Ely Aaronson

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About the Author: Ely Aaronson

Ely Aaronson is an Associate Professor at the University of Haifa, Faculty of Law. His main areas of scholarship include legal history, socio-legal theory, criminal justice, and comparative and transnational legal theory. He is the author of From Slave Abuse to Hate Crime: The Criminalization of Racial Violence in American History (2014)....

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About the Author: Gregory Shaffer

Gregory Shaffer is Chancellor's Professor at the University of California, Irvine. His publications include seven books and over one hundred articles and book chapters, including Constitution-Making and Transnational Legal Order (with Ginsburg and Halliday, 2019); Transnational Legal Orders (with Halliday, 2015); and Transnational Legal Ordering an...

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