Defining Crimes in a Global Age: Criminalization as a Transnational Legal Process

Abstract

The design of empirical research and theory-building projects in the sociolegal literature on criminalization is often premised on a presumed dichotomy between domestic and international planes of criminal lawmaking. However, in a global era in which domestic processes of criminalization are increasingly shaped by norms, institutions, and actors developed and operating outside national borders, criminalization research should develop a new theoretical frame for studying how international and domestic practices of criminal lawmaking interact with one another. This article builds from the theory of transnational legal orders and the recursivity of law to propose a transnational processual theoretical framework for the study of criminalization. This framework provides tools for investigating how criminal prohibitions are constituted through recursive interactions between actors operating in international, national, and local sites of legal practice. It draws on empirical studies to show how the processes of constructing, applying, and contesting definitions of international and transnational crimes are embedded in broader structures of power. The article demonstrates how a processual theory of transnational criminalization sheds light on important sociolegal questions about the driving forces and consequences of current efforts to harmonize the definitions of criminal activities across national jurisdictions.

Constructions of migrant victims of labor exploitation in Nordic court cases

“…Thus, Bacchi's (2009) WPR approach represents a break with the idea that policies are reactions to societal problems. Bacchi's approach aligns with Aaronson and Shaffer's (2021) idea that diagnostic struggles regarding a "problem" shape the content of legal norms. Judges who interpret and apply the laws thus constitute part of the process of framing the problem of labor exploitation and of understanding the victims of such exploitation.…”

“…Anti-trafficking laws, which include labor trafficking, have existed in Denmark, Finland, Norway, and Sweden since the beginning of the 2000s, 1 and are based on the UN Palermo protocol ( Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children ). The criminalization of trafficking can be understood as an example of a transnational legal order, which includes the interaction between international and domestic criminal processes and the diagnostic struggles that shape the meaning of legal norms (Aaronson and Shaffer, 2021). Although there might be a high degree of normative consensus at the international level, as is the case regarding the criminalization of trafficking, there may be discord in the interpretation and implementation of legal norms at the domestic level (Aaronson and Shaffer, 2021).…”

Why lawyers internationalize and police transnationalize: disjointed criminal justice at the border of the state

“…These approaches have contributed important concepts and knowledge about law and police at the border of the state. However, despite one recent framework being developed to study internationalized criminalization across different crimes [29], previous scholarship has understudied how the shared national roots of international and transnational criminal justice practitioners was written into the bifurcation of these two fields.…”

Stacked Fields of Criminal Justice: The National Embeddedness of Transnational Policing

“…Investigating globalized criminalization of behavior such as piracy, slavery, drug trafficking, prostitution, and other activities, Nadelmann points to the importance of norms and ideologies in the transnational emergence and development of these forms of prohibition. A similar take on the globalization of criminal justice has recently been developed under the wider theoretical framework of "transnational legal orderings" (Aaronson & Shaffer, 2021;Halliday & Shaffer, 2015;Shaffer & Aaronson, 2020). This perspective takes the normative framing of crime problems as its starting point but also investigates how institutions and criminal justice systems were built around and respond to these perceived problems.…”