Project 2: Rethinking the Criminal Justice System beyond the State: Towards a System Model for Transnational Criminal Law

The overall aim of this research project is to contribute to a discussion about the foundational problems that criminal law faces in the context of internationalisation , from the perspective of the system character of the criminal law. More specifically, the focus is the problematic issue that the ongoing development of the criminal law, especially at the transnational level, seems to be in tension with the basic requirements of public penal power that are inherent in the criminal justice system, as developed within the constitutional paradigm of the democratic Rechtsstaat.

The point of departure, and problem context, is the fact that within the legal paradigm of the western states, the exercise of public penal power by tradition takes place within a criminal justice system, i.e., within a certain normative and institutional structure aimed at crime control and criminal justice. More specific, the exercise of penal power paradigmatically takes place within the different existing national criminal justice systems that have been developed in conjunction with the modern state. The right to punish has traditionally been emphasized as the essence of state power, and accordingly the modern criminal justice system has been developed as a system for the exercise of the state's penal power. Hence, the penal paradigm of the western world is the paradigm of the national criminal justice system. The national criminal justice system is in this regard most often viewed as the only existing self-governing system for the administration of punishment (and the growing bodies of transnational penal norms are traditionally viewed as dependent, and most often also subordinated, to the criminal justice systems of the states).

The settled paradigm of the national criminal justice system corresponds to some basic ideas in the western legal discourse, about what a criminal justice system is and how it should function as a system. These ideas are (still) so firmly anchored in the legal discourse so that they - in spite of all controversial details - can be said to form a traditional model of a criminal justice system. The basic assumption of this model is that the criminal justice system is a state-based system, in the meaning of being a sub-system to the legal order of the democratic Rechtsstaat and, hence, of its archetypal institutional and normative framework. Thus, in the name of the rule of law, democratic legitimacy and rights protection, the criminal justice system is typically considered as built upon the laws enacted by the (national) parliament and as subject to the limitations implied by the (national) constitution. Further, it is paradigmatically understood as a system with a certain division of powers (above all among the different institutional functions of the level of legislation, the level of adjudication, and the level of execution of punishment). In line with the archetypical modern legal discourse departing from the rule of law, the criminal justice system is in addition, in particular in its norm dimension, conceptualised as a hierarchical, monistic and coherent unit, with one constitution at its apex. Finally, on the level of values and principles, the criminal justice system is typically considered as rooted in the basic Rechtsstaat values of individual autonomy (cf., human dignity) and equality and in the desire to avoid the abuse of power (both from the public and from other individuals). And more generally, the criminal justice system is paradigmatically considered to embody a distinctive ‘grammar of the criminal law', which is centred on the notions of crime and punishment and which embodies principles and concepts that demark the criminal justice system from other parts of the legal system.

However, the ongoing process of internationalisation seems to challenge the established paradigm of the national criminal justice system (and its corresponding concept). As a consequence of the growing body of transnational criminal law, the national criminal justice systems are increasingly affected. Today, a considerable part of the norms that are applied in the national criminal justice system are ultimately based upon transnational legislation. What could previously be understood as a genuinely national criminal justice system must today therefore be perceived of as largely influenced by transnational decision-making; the institutional framework, the substance, the procedures, and the ideological aspects of the criminal justice system are all affected by transnational regulation. In addition, and at more fundamental level, the development of transnational penal competences seems to alter the entire systematic context of the criminal law. More specific; the emergence of transnational competences seems to - in different transnational contexts - generate particular transnational system structures, characterised by (‘multilevel') interaction and, in particular as concerns the EU, also overlap between the national and the transnational level. These system structures, which are developed alongside the national penal sphere, are rooted in competences at the transnational level and are centred on the function to implement transnational penal rules. On the global level, the ICC occupies a central position in the establishment of a system of international criminal justice. On the regional level, the EU-cooperation is of particular significance as regards the emergence of transnational system structures.

The emergence of transnational penal competences, and the system implications it carries with it, seems to challenge many of the basic premises of the traditional model of a criminal justice system. What is most, the development of a transnational penal sphere seems to result in an increasingly fragmented, pluralistic and non-transparent systematic context of the criminal law that struggles with problems concerning the control of penal power. In the end, the development of transnational penal structures also carries with it a separation between the criminal law and the state that challenge the paradigm of the national criminal justice system as such, at least as the only legal system structure for the use of public penal power.

In challenging the established paradigm of the national criminal justice system, the penal development at the transnational level demands a thorough discussion of the meaning of upholding a certain system structure of the criminal law (such as the traditional structure of the national criminal justice system) - and in the end, it demands a discussion concerning the concept of a criminal justice system as such. With the aspiration to initiate a discussion on these matters, this project deals with the changing system structures of the contemporary criminal law.

The core questions are whether, and to what extent, it is possible to uphold the standards of public penal power, that has traditionally been secured by the existence of a (national) criminal justice system, in an increasingly internationalised and multilevel criminal law context - and whether (or to what extent) it is needed. Or, to put it differently: To what extent, and in what way, could - and should - the basic ideas of penal power that is inherent in the ‘traditional model' of a criminal justice system function as basic principles and legal requirements for the ongoing development of the criminal law? In this regard, the project departs from the key assumption that the criminal justice system as developed within the democratic Rechtsstaat, as a system, represents necessary requirements for the administration of punishment at all points or in its totality.

In answering the above mentioned questions, this project will interconnect a (conceptual) analysis of the meaning and virtue of a criminal justice system, departing from the traditional model, with an analysis of the system character of the transnational penal sphere, with particular focus on the problems of the increasing "system deficit" of today's criminal law. In analysing the system character of the transnational penal sphere, will in particular the EU penal context serve as a case study.