Rethinking Comparative Criminal Justice
December 20, 2022
Comparative law is no stranger to debates on globalization. Indeed, the complexity, diversity and often pluralistic nature of law in a globalized world is frequently raised in debates about the appropriate lens for legal comparisons, such as legal families, legal cultures or — the explicitly borderless — legal traditions (see Glenn, 2010). Writing recently in this blog Monateri (2022) identifies three main challenges for comparative law: ‘an increasingly blurred line between private and public law, the emergence of new global regulatory processes, and a shift from Eurocentrism’. For him, this requires both new methods ‘for comparing legal landscapes … shaped by new global sources of normativity outside the standard framework of national laws or of legal families’ and ‘a self-critical approach to comparative law’. Taking up these debates in the field of comparative criminal justice, a new Research Handbook of Comparative Criminal Justice published by Edward Elgar and edited by David Nelken and Claire Hamilton (available here), seeks to reexamine the theories, assumptions, values and methods of comparative criminal justice in light of the challenges and opportunities posed by globalisation.
Part I of the Handbook therefore takes a fresh look at the traditional objects of comparative inquiry, such as families of law and the systems of trial, through the lens of globalisation. The first three substantive chapters, for example, provide an interrogation of the inquisitorial/adversarial dichotomy and its relevance in a globalised world. Trends such as an increased emphasis on efficiency, cost-saving and the growth of ‘administratisation’ or trial avoidance mechanisms, raise important questions about global convergence and the demise of adversarialism. While, as Hodgson argues in Chapter 2, these pressures may play out differently in different procedural contexts, closer inspection reveals a similar response to the demands of managerial efficiency: ‘a facsimile of justice in which the safeguards of prosecutorial review and judicial oversight are increasingly absent’. Linked with this are the implications of a new global language of criminal justice, namely, ‘algorithmic justice’, also discussed in Chapter 22: are we witnessing the replacement of old ideas about crime and criminality with new, epistemically different, sources of knowledge?
Speaking to Monateri’s theme of enhanced global regulation, Part II of the Handbook turns the spotlight on the unwanted or unexpected consequences of global ‘flows’ of people and goods, what may be termed the ‘dark side’ of globalisation. What is striking is that so many of these crimes or social problems – cybercrime, genocide, ‘bordering’ practices and so on – push the boundaries of comparative criminal justice as an academic subject. Another challenge is that laws and standards are often transmitted across diffuse and complex transnational legal and regulatory spaces.A good example is counter-terrorism law (discussed in Chapter 10) where laws and standards span UNSC resolutions, European counter-terrorism laws, bilateral agreements, national counter-terrorism laws, and the recommendations of the Financial Action Task Force (FATF). Scholars of comparative counter-terrorism must therefore navigate these different sites of governance, both public and private, and their complex interrelationships, while also recognising the enduring influence of the nation state as a source of ordering (Nelken, 2011). As with law more broadly, if comparative criminal justice is to play a role in exploring these more transgressive fields of study and how these play out in different contexts it will inevitably have to assume a broader, more interdisciplinary and more flexible character.
Finally, as Monateri rightly acknowledges, the shift in subject matter should be accompanied by a more self-critical, reflexive approach, probing the values of the comparative project. As he points out, too often so-called ‘objective’ classifications and typologies display ‘a high degree of subjectivity under a veil of alleged objectivism’. This view is echoed by David Nelken in Part III of the book: ‘academics … also have agendas – and the highlighting of similarities or differences is often instrumental to these.’ This part provides insights into the universal, or supposedly universal, remedies for the problems posed by globalisation such as human rights, global standards and social indicators such as the United Nation’s Sustainability Development Goals. As well as discussing the nexus with policy, the chapters demonstrate how the values built into such projects, particularly those viewed as spreading ‘best practices’ or imposing common standards, may need more scrutiny than they often get. Nelken’s chapter in particular raises questions about the comparative exercise itself and how it is implicated in the ‘policing’ and ‘self-policing’ effects produced by various indicators. Perhaps an even greater challenge discussed by Cunneen in Chapter 20 is the effort to decolonize comparative criminal justice, with calls to reconsider the fixity of the nation state, to reassess units of time and measurement, and to rethink established methodologies. Linked to this have been calls for ‘epistemic justice’ and the decolonisation of knowledge and university curricula, including law and comparative law. While these represent formidable challenges, they are more likely to intensify than diminish. Indeed, they may well form part of the ‘profound rethinking’ of comparative law called for by Monateri to make sense of the new world order.
References
Glenn, P. (2010) Legal Traditions of the World: Sustainable Diversity in Law. Oxford: Oxford University Press. 4th ed.
Monateri , P. G.(2022) ‘The Structures of Comparative Law: Metaphors and Methods’, American Society of Comparative Law blog, 15 November. Available at: The Structures of Comparative Law: Metaphors and Methods – American Society of Comparative Law (ascl.org) (accessed 1 December 2022).
Nelken (2011) (ed.) (2011c) Comparative Criminal Justice and Globalisation. London: Ashgate.