The Standard Model of Criminal Jurisdiction Introduction and General Issues

Abstract

This chapter introduces the model of jurisdiction over crime with transnational elements which has become standard in the past century and a half. It embodies five principles which a state may generally use to justify making and applying criminal law for persons and prosecuting those who allegedly violate the law: territoriality, nationality of actor (“active personality”), protective jurisdiction (protecting state interests), passive personality (nationality of victim), and universality. These principles developed in their modern forms largely in civil law and common law countries, but today they are also implemented in Islamic law countries and a number of Asian countries which were never fully colonized by Western powers. They are for the most part the customary international law of criminal jurisdiction as well, though there are some who dispute that claim. Some of the general issues concerning this model addressed in this chapter include: the historical and intellectual roots of the model; the near-identity of legislative and adjudicative criminal jurisdiction, because each state uses only its own crime definitions in its courts; primary versus subsidiary jurisdiction; and others. The chapter concludes with a framing of the main questions concerning whose law we must obey.