Toward a universal theory of criminal law: Rethinking the comparative and international project

Abstract

There is no theory that is not a fragment, carefully prepared, of some autobiography. --Paul Valery (1) Introduction: Developing an International Grammar for Criminal Law Theorizing, as Paul Valery observed, is a profoundly autobiographical exercise shaped over the course of a personal and professional life's journey. A close reading of the preface to The Grammar of Criminal Law: American, Comparative, and International reveals the cosmopolitan scholarly influences on George Fletcher and their role in refining his concept of criminal (2) Those influences span a vast terrain. In Fletcher's peripatetic intellectual life, comparative and international have loomed large and German criminal theory has always occupied a central place. One of the three central theses of Fletcher's book is a prognosis that international law, in particular international criminal law, will come to play a significant role in the development of domestic criminal theory, and vice versa [340]. Fletcher sums up this dialectical relationship at the end of his introductory chapter: Refining and elaborating the shared grammar and principles of criminal will be the challenge of the twenty-first century.... the task of theorists in the current century is to elaborate the principles of criminal that should be recognized not only in the International Criminal Court, but in all civilized nations [20]. (3) In relation to this last point, the past decade has already witnessed a significant internationalization of criminal as a discipline. Fletcher understates this trend, or at least generalizes too much from the American experience, when he suggests that criminal suffers from self-imposed parochialism [94]. A perusal of modern criminal scholarship in leading textbooks, monographs and journals reveal that in the last two decades of the twentieth century increasing attention has been paid to both international and comparative perspectives by domestic criminal lawyers. (4) That said, Fletcher is correct to note that comparative criminal which traverses the boundaries of common systems into civil systems remains exceptional. Fletcher's promise of a universal shared language for the criminal law, which crosses both territory and legal cultures, may be viewed as part of a wider project promoting the globalization of law. (5) These wider forces of globalization operating in the economic and political realm ensure that domestic can no longer be conceived as a closed system insulated from outside influences. The distinguished legal theorist, William Twining, has noted in his account of legal globalization: No one can understand their local by focusing solely on the municipal domestic of a single jurisdiction or nation state; ... the range of significant actors and processes has been extended. (6) In the criminal context, the forces of globalization are evident in a number of processes including: * the domestication of international criminal law, through the incorporation of various offenses and doctrines recognized under the Rome Statute, particularly Art 21(1)(c) which recognizes as a source of general principles of derived from national laws of legal systems of the world; (7) * the growing prevalence of crimes derived from international treaties that have extra-territorial or non-geographic jurisdiction; * the role of international human rights (particularly the International Covenant on Civil and Political rights and European Convention on Human Rights [ECHR]) in reshaping the domestic contours of criminal procedure as well as the substantive criminal either through case or legislative development; (8) and * the development of a transnational common law in which foreign law comes to exert some persuasive (if not binding) force in the field of criminal law. …