Harry R Dammer, Philip Reichel, Ni He. Handbook of Transnational Crime & Justice. Editor: Philip Reichel. Sage Publication. 2005.
During the past two decades, crime has moved from being primarily a domestic social problem to one that is more global in nature. The globalization of economy, opening of previously restricted borders, the exponential growth in information technology, and widespread transcontinental mobility all helped crime to transcend national boundaries.
Two academic disciplines with particular interest in these issues are criminology and criminal justice. These fields of study have much in common but are clearly distinguished. Criminologists are interested in crime as a social phenomenon (e.g., the spread and distribution of crime) and as social behavior (e.g., why people engage in criminal acts). Criminal justice scholars are interested in the people and procedures established by a government in its attempt to maintain social order and accomplish justice in society. In this chapter, we explain why comparing issues of crime and justice cross-nationally is important, describe how comparative criminologists and comparative criminal justice scholars go about their work, and identify some issues we believe will confront both disciplines in the future. We begin with a review of the growth and importance of comparative studies in criminology and criminal justice.
The Growth and Importance of Comparative Crime and Justice Study
In response to the growing problem of transnational crime, those in the academic community have developed an intense and sustained interest in the study of comparative criminology and criminal justice. Although the growth of transnational crime—and surely the September 11, 2001, terrorism events in the United States—have piqued the interest in international crime issues, we can trace the beginnings of the subject area back to at least 1872 and the International Congress on the Prevention and Repression of Crime, held in London. Later, the First International Police Congress was held in Monaco in 1914. Two world wars put interest in the field on hold until the late 1960s when the United Nations developed the first Crime Prevention and Criminal Justice Branch under the direction of G. O. W. Mueller. Over the last 30 years, interest in comparative crime and justice has slowly gained momentum and is now prominent in the academic and professional arenas.
Recently, prominent American scholars have vociferously called for the “globalizing” of criminal justice curriculum (Adler, 1996) and for “internationalizing” criminology and criminal justice study (Friday, 1996). Academic, professional, and governmental organizations have responded to these calls. Since the 1990s, at least three major North American conferences chose the related theme. In November of 1995 and November 1999, the American Society of Criminology titled its annual conferences “Crime and Justice: National and International” and “Explaining and Preventing Crime: The Globalization of Knowledge,” respectively. In March 2003, the Academy of Criminal Justice Sciences held its annual conference under the theme of “The Globalization of Crime and Justice.” Similarly, international conferences have been held throughout the world, the largest being the International Congress on Criminology, which held its 12th Congress in Seoul, Korea in 1998, and its 13th Congress in Brazil in August 2003.
Comparative criminology and criminal justice courses, and various forms of written and electronic materials on the subject, have also flourished in recent years. Based on several surveys conducted among U.S. researchers, between one third (Cordner, Dammer, & Horvath, 2000; Hippchen, 1977; Terrill, 1983) and one half (Esbensen & Blankenship, 1989; Peak, 1991) of the criminal justice programs offer some comparative or international courses. During one 5-year period, between 1986 and 1991, the number of courses offered in comparative criminal justice more than doubled (Wright & Friedrichs, 1991). In 2002, John Jay College of Criminal Justice developed the first full-fledged bachelor’s degree in International Criminal Justice (Natarajan, 2002).
Increased awareness and coverage of cross-national crimes and criminal justice practices can be found in many criminology and criminal justice textbooks published in the United States. It is common for authors in criminology and criminal justice to include paragraphs, inserts, or boxes featuring cross-national crimes, foreign justice practices, or both. Many introductory texts now devote an entire chapter to issues related to comparative criminology, criminal justice, or both (Adler, Mueller, & Laufer, 1995; Albanese, 2002; Schmalleger, 2001). An impressive number of edited books and anthologies with a cross-national focus have been published in the last decade. More important, there are now textbooks devoted entirely to the study of comparative criminal justice systems (Fairchild & Dammer, 2001; Reichel, 2002; Terrill, 2002). Comparative study as a legitimate vehicle for academic publications can also be evidenced by the increasing number of periodicals addressing comparative criminology and criminal justice (Mueller, 1996), and there are thousands more published cross-national studies compared with a mere decade ago (Adler, 1995). Yet some remain skeptical about whether the comparative criminology-criminal justice field has indeed grown out of its “infancy” (Howard, Newman, & Pridemore, 2000) and whether comparative study is still regarded as an “exotic frill” or as “an excuse for international travel” (Bayley, 1996, p. 241). However, this view is sure to change if the field continues to gain academic legitimacy and notoriety.
With the spread of crime throughout the world, many governmental agencies, national and international, have come to see the value in the study and dissemination of information on the subject. Various forms of statistical data are obtained through agencies such as the International Police Organization (Interpol) and the World Health Organization and through organizations such as the Ministry of Justice in the Netherlands that conducts the International Crime Victim Surveys (ICVS). The United Nations has created a large group of criminal justice information providers, including the Dag Hammarskjold Library in New York City and the ever-growing U.N. Crime and Justice Information Network (UNCJIN). UNCJIN has expanded to include the Centre for International Crime Prevention in Vienna and numerous institutes for crime prevention in Japan, Rome, Australia, Italy, Cost Rica, Finland, Uganda, and Canada, and in the United States under the auspices of the National Institute of Justice (NIJ).
The NIJ is the research, development, and evaluation agency within the U.S. Department of Justice. In 1999, the NIJ, recognizing the need to better identify and describe crime and to support those who fight crime, decided to develop the NIJ International Center. The International Center’s mission is to stimulate and facilitate research and evaluation on transnational crime and justice issues and to disseminate the knowledge gained throughout the national and international criminal justice communities (Finckenauer, 2000). Since its inception, the International Center has worked with the United Nations and its various institutes to mount a variety of studies on topics such as transnational organized crime, corruption, and human trafficking.
Criminal justice libraries worldwide have also joined in the search for international criminal justice knowledge. The World Criminal Justice Library Network has been developed to link nearly 100 criminal justice libraries. Active participants include university libraries in the United States (e.g., Eastern Kentucky University, Rutgers University, Sam Houston State University), Canada (e.g., the University of Montreal, and the University of Toronto), Europe (e.g., the Max Planck Institute in Freiburg, Germany), and university and government entities in Australia (e.g., the Australian Institute of Criminology) and Asia (e.g., the Korean Institute of Criminology). Having briefly expressed the reasons for and vehicles contributing to the growth of the field of comparative criminal justice, we now turn to the larger question of why people around the globe should concern themselves with the identification and comparison of issues related to crime and justice.
Why Should We Compare Issues of Crime and Justice?
There are many reasons to study and compare issues of crime and justice. We will concentrate on three: (1) to benefit from the experience of others, (2) to broaden our understanding of different cultures and approaches to problems, and (3) to help deal with the many transnational crime problems that plague the world today.
To benefit from others’ experience. “The reason for comparing is to learn from the experience of others and, conversely, that he who knows only one country knows none” (Sartori, 1996, p. 20). This profound statement by George Sartori illustrates the importance of international and comparative study. Comparative work in criminal justice is an excellent vehicle for learning more about how others practice criminal justice. With this information, we can begin to solve the many problems related to crime and justice.
In all areas of the criminal justice system— police, courts, and corrections—there are many examples of how nations have adapted others’ methods of implementing criminal justice. For example, people wonder why Japan has a much lower crime rate than the United States or, indeed, most Western nations. The Japanese themselves give some credit for their low crime rates to their police methods—most notably, community policing. Many countries have become interested in adapting the Japanese police practices, including the use of Kobans (small local police stations). Some U.S. cities, including Detroit and Houston, have modified the Japanese methods and use them in their local police operations (Bayley, 1991).
Many countries have also adopted rules of criminal procedure that others pioneered. In fact, some criminal procedure rules, such as the right to counsel at an early stage of the criminal process, are becoming universal in Western systems of justice. Many countries have even adopted entire legal codes from the codes of others. The Napoleonic Code of Civil Law, developed in France in the early 19th century, was one such export, as was the French penal code, also developed under Napoleon. Another export in the late 19th century was the German Civil Code. These codes have had an enormous influence on the development of legal systems and criminal justice systems throughout the world (Merryman, 1985).
Corrections strategies also tend to spill over borders. For example, the idea of day fines, which was first developed in Scandinavian countries, has been adopted by Germany and, more recently, by Great Britain and the United States. And New Zealand, Australia, Canada, and the United States have started different kinds of restorative justice programs. Restorative justice is an idea that many victims’ rights advocates in the United States cultivated, but it has its roots in the justice practices of many indigenous cultures.
There are many other examples of countries borrowing or adapting criminal justice practices from the United States. In the 19th century, many European countries, especially France, copied American methods of incarceration—specifically, the Auburn system and the Pennsylvania system. More recently, former Communist countries in Eastern Europe have called on the FBI to help train them in the fight against organized crime. Many countries have also improved their ability to collect and disseminate crime statistics using the U.S. models of the Uniform Crime Reports (UCR) and National Crime Victimization Survey (NCVS).
To broaden our understanding of the world. A second reason for studying the administration of justice in other countries is to broaden our understanding of other countries and cultures. This is imperative because the multicultural world we now live in has entered the stage of globalization, whereby the world has become interdependent in terms of the events and the actions of people and governments around the world. In short, globalization is the idea that the world is “getting smaller.” Reflecting on the globalization of crime is a recent trend in criminal justice, and many countries, concerned with transnational crime, are developing a serious interest in globalization issues.
Globalization has occurred because of many events in the 20th century. Two of the most prominent are the end of the Cold War and the growth in technology. The end of the Cold War—more specifically, the demise of the former Soviet Union—has led to the opening of many previously regulated borders and, in turn, to an increase in international trade and travel. Over the past 30 years, the number of international passenger flights has increased twentyfold, and the number of global imports has increased tenfold. Along with these increases has been a concomitant increase in crime.
Ease of travel by air has enabled criminals to do their work in other countries or easily escape to a safe haven. As air and sea trade has increased, so has the smuggling of illegal goods such as drugs and guns. Strong evidence suggests that some individuals have even engaged in the illegal smuggling of human body parts to wealthy persons in other countries who need medical assistance. In countries that are in economic or political turmoil, many persons attempt to flee, causing problems such as international criminal activity, refugee flows, the spread of contagious disease, and nuclear weapons and drug trafficking (Cusimano, 2000). When refugees enter a country, either legally or illegally, they experience difficulties adjusting to a new language and cultural norms, and many find themselves in some kind of legal trouble.
Technological growth has also contributed directly to the vast increase in the kind and volume of transnational crime, with computers and telecommunications playing a key role. Cybercrime, crime committed with the use of computers, now ranges from relatively minor acts of consumer fraud to more serious crimes in which drug traffickers move billions of dollars of illegal drug money, to major crimes that can paralyze entire financial networks and national security systems. In sum, “the very networks that legitimate businesses use to move goods so cheaply are the same networks that criminals use to move illicit goods so easily” (Winer, 1997, p. 41).
Broadening our understanding of other countries is also important because, as globalization occurs, we are more likely to fall prey to the problem of ethnocentrism—the belief that one’s own country or culture does things “right” and all other ways are “wrong” or “foreign.” Ethnocentrism is a common phenomenon; people often think their country, culture, or religion is better than all others. In terms of crime and criminal justice, ethnocentrism is a problem because it can lead to crime within and across borders. LePaulle noted that there is a tendency to view the law of one’s own country “as natural, as necessary, as given by God” (quoted in Cole, Frankowski, & Gertz, 1987). This ethnocentric view actually makes the system seem uninteresting and not worthy of scrutiny. After all, why should we need to examine and appreciate what amounts to the only game in town? But, LePaulle continues, the law of any country is more accurately the result of “historical accident or temporary social situations” (p. 19). The way that a nation administers justice often reflects deep-seated cultural, religious, economic, political, and historical realities. Learning about the reasons for these different practices can give us insight into the values, traditions, and cultures of other systems. Such broadening of perspective helps us see our own system in more objective terms.
To deal with transnational crime problems. Finally, a third good reason to study criminal justice from a comparative perspective is the increasing need to address transnational and international crime problems. Crime is universal—there is no country without crime (Newman, 1999, p. 64). And as we begin the 21st century, rapid travel and communication are making us painfully aware that crime is no longer confined by the geographical boundaries of individual countries. It appears that garden variety thefts, robberies, and assaults may become less troublesome to society than offenses such as the internationalization of organized crime, nuclear trafficking, international terrorism, money laundering, and the transnational trafficking of humans and human organs (see, e.g., Collin, 1997; Lee, 1996; McDonald, 1997; Williams, 1999). Criminality in this new century seems less apt to prey on private citizens and more likely to victimize communities, governments, and even entire nations.
Transnational crimes such as terrorism, air and sea hijacking, and drug smuggling are serious concerns that beg for a cooperative international response. Multinational collaboration is occurring, but the needed action requires a level of teamwork that countries of the world are only beginning to consider. Understandably, cooperation often starts with neighboring countries. Their common border not only presents the problem of intercountry crime but also provides both reason and opportunity to do something about it. Besides examples of neighbor cooperation, there are several examples of multinational collaboration as groupings of countries realize the need to develop formal agreements in their quest to control and combat crime.
Benefiting from others’ experience, broadening our understanding of the world, and combating transnational crime are clearly three excellent reasons for studying comparative crime and justice. Those reasons express clear goals that appeal to the practitioner, policymaker, and to academics with an applied bent. There is another good reason for comparing issues of crime and justice, but this reason is often neglected because its application is less obvious. Specifically, comparative studies can help build, modify, and advance theoretical analysis of crime and criminal behavior. Obviously, theory informs practice, so it is unfair to suggest that strengthening theoretical analyses cannot be lumped with practical reasons for comparative studies. But a consistent predicament of theoreticians is to have their applied credentials questioned. A brief review of the efforts of comparative criminology will show how comparative studies benefit the growth of theory. We will then turn our attention to comparative justice studies in order to appreciate how that field of study works to achieve some of the other benefits of comparative study.
Comparative studies have a lengthy history in the social sciences, and despite its seemingly recent appearance, comparative criminology is no exception. Jeremy Bentham, Émile Durkheim, Adolph Quetelet, Gabriel Tarde, and Alexis de Tocqueville would be on many lists of scholars interested in cross-national studies of crime. But just what do comparative criminology scholars study and what have they found? These are important questions when trying to understand the current interest in comparative criminology and when considering the future of this field of study. We briefly consider each question in hopes of whetting the appetite of persons interested in a more rigorous inquiry into comparative criminology.
What is the Subject Matter of Comparative Criminology?
As noted at this chapter’s start, criminologists are interested in crime as a social phenomenon and as social behavior. Most simply, comparative criminologists are interested in the same things but on a broader scale. Johnson and Barak-Glantz (1983) suggest that comparative criminologists seek to locate commonalities and differences in crime patterns among divergent cultures. Newman and Howard (2001) list issues such as testing at the international level our traditional theories about crime, identifying the distribution and patterning of crime in different countries, and describing how cultures might differ in their relation to crime as topics of interest to comparative criminologists. Helpful as those denotations are, we are drawn to Beirne and Nelken’s (1997) succinct definition of comparative criminology as referring to “the systematic and theoretically-informed comparison of crime in two or more cultures” (p. xiii).
Appealing aspects of Beirne and Nelken’s (1997) definition are the focus on crime and the requirement that two or more cultures are compared. By restricting comparative criminology to the study of crime, we avoid confusion with comparative criminal justice, which focuses on the policies and procedures established by a culture to achieve social order. As we do at this chapter’s beginning, Beirne and Nelken recognize the artificial nature of any line drawn between crime and criminal justice. But doing so helps distinguish fields of study that might otherwise be confused. Similarly, requiring a research effort to involve two or more cultures before being designated an example of comparative criminology seems very reasonable. Research describing homicide in a particular country other than one’s own can be very informative, can clearly advance scientific knowledge, and could be a necessary step in developing or refining theories about homicide’s occurrence. To be a comparative study, however, homicide in at least two countries should be studied.
Another feature of comparative criminology must be noted. To date, comparative criminology has mostly compared domestic crime events in two or more countries. The growth of criminal acts that cross national borders should also be of interest to comparative criminologists. Other chapters in this book provide examples of transnational crimes such as money laundering and trafficking in illicit drugs. An understanding of these criminal events requires knowledge of their spread and distribution across time and place—a type of inquiry appropriate to comparative criminology. In addition, transnational crime involves the cooperative behavior of people in several countries as they coordinate efforts to accomplish the crime. Explaining such behavior by criminals in different countries is also an appropriate investigation for comparative criminologists. To more accurately reflect contemporary research topics, we propose an expansion of Beirne and Nelken’s (1997) definition of comparative criminology to be a systematic and theoretically informed comparison of crime in two or more cultures or across two or more countries.
What Variables are Used in Comparative Criminology?
Criminologists seeking to understand better the spread and distribution of crime in a particular country have considered the possible influence of social, economic, political, psychological, and biological variables. Comparative criminologists have used these same variables in their attempt to compare crime’s occurrence cross-nationally. Especially popular have been variables associated with economic conditions and urbanization.
Economic development and industrialization are among the most popular variables included in comparative research on crime— with homicide and theft often being the crimes of research choice. Most studies have found that neither economic development nor industrialization is significantly related to homicide rate (e.g., He, 1999; LaFree, 1997). However, the majority of research comparing theft rates among countries finds a significant positive effect of economic development and industrialization (e.g., Hartnagel, 1982; He, 1999; Stack, 1984).
Other economic variables of interest to researchers have included unemployment rates and the amount of money the government spends on social service programs. Fiala and LaFree (1988) found no significant effect of unemployment on homicide. Neapolitan (1995) found no evidence to suggest that unemployment has any significant effect on theft in less-developed nations. Using both cross-sectional and pooled data, He (1999) found a significant positive effect of unemployment on homicide, but the effect of unemployment on theft is less consistent.
Several researchers have offered government expenditures on social service programs as a potential correlate to crime (see DeFronzo, 1997). Fiala and LaFree (1988) found a significant negative effect of welfare spending on child homicide victimization among 18 industrialized nations. Similarly, using advanced industrialized nations as samples, Gartner (1990, 1991) and Briggs and Cutright (1994) both found a significant negative effect of “social assistance” on child homicide. Pampel and Gartner (1995) also found that the level of welfare assistance had a significant negative effect on homicide offending among young men in 18 industrialized nations. A significant negative effect of welfare assistance on property crime has been found in single-nation studies (e.g., DeFronzo, 1996).
He (1999) measured the theoretical concept of human investment as the total percentage of the government expenditures in social security, social welfare, health care, and education in his study. Contrary to expectations, He’s cross-sectional analysis results indicated no significant effect of government expenditure on social welfare on either homicide or theft.
In addition to economic conditions, researchers have also considered the role urbanization might play in explaining differences in cross-national crime rates. The results here are also mixed. Using population growth rate as measurement of urbanization, two studies found a positive effect of urbanization on homicide (Krahn, Hartnagel, & Gartrel, 1986; McDonald, 1976), but two others did not (Krohn & Wellford, 1977; Messner, 1982). Both Krohn and Wellford (1977) and McDonald (1976) found a significant positive effect of urbanization on theft.
When urbanization is operationalized as the percentage of the population living in urban areas, researchers have not found a significant positive effect of urbanization on either homicide (e.g., Kick & LaFree, 1985; Messner, 1980; Ortega, Corzine, Burnett, & Poyer, 1992) or theft (e.g., Hartnagel, 1982; He, 1999; Kick & LaFree, 1985). In fact, some studies suggest a significant negative effect of urbanization on homicide (e.g., Conklin & Simpson, 1985; Ortega et al., 1992). Obviously, urbanization remains a variable worthy of additional research.
In addition to economic conditions and urbanization, comparative criminologists have considered the potential role played by factors such as political strictures and moral individualism. Lynch, Newman, McDowall, and Groves (1988) tested a hypothesis proposing that the rates of violent and property crime will differ according to world system location. They suggested that core nations would have higher rates of property crime because of the democratic and egalitarian ideologies. Periphery countries will have higher rates of violent crime because of political repression, frustration-aggression reactions, and alienation. Controlling for income inequality and the level of economic development, Lynch et al.’s study supported their hypotheses regarding crimes in the core and the periphery nations. In an attempt to identify patterns for semiperiphery nations, He (1999), using pooled data analysis, found a significant positive effect of both semiperiphery and periphery on homicide. He also found a significant negative effect of both semiperiphery and periphery on theft.
Only a handful of comparative studies have looked into the effect of moral individualism on homicide. Messner (1982) used Protestant religiosity and school enrollment as measurements of moral individualism but did not find a relationship between these two measures and homicide. Huang (1995), upon finding a significant negative effect of individualism (measured by scores on political and civil rights) on homicide, suggested that a society’s common sentiment of respect for individuals’ political and civil rights might inhibit citizens from killing each other. Neapolitan (1995) tested the effect of political rights on theft in a sample including only the less-developed nations. He found that political rights had a significant positive effect on theft in less-developed nations.
Attempting to make sense of these positive, negative, null, and mixed effects requires researchers to draw on the rich tradition of theory that has developed in criminology. A key question is whether theoretical explanations for crime’s occurrence in a particular country have any explanatory power in another country. Continuing our brief overview of comparative criminology, we consider some of the explanations that have been offered to explain crime cross-nationally.
What Explanations Have Comparative Criminologists Offered?
An entire section of this book is devoted to the research of comparative criminologists as they seek to understand transnational crime. Here, we provide a brief account of the more traditional research endeavors that compare domestic crime in two or more countries. This review of classic and contemporary examples of comparative criminology shows the diversity of crimes considered, variables addressed, and theories proposed by scholars interested in comparing crime across cultures.
A popular technique among comparative criminologists has been an attempt to identify commonality among cases of crime to determine a general theory of criminal behavior. Shelley’s (1981) Crime and Modernization is an early example of this methodology. As the title indicates, Shelley uses empirical evidence to show that modernization provides the best theoretical explanation for crime’s evolution in recent history. Specifically, she suggests that social processes accompanying industrial development have resulted in conditions conducive to increased criminality, such as loosened family ties, instability of family, and lack of supervision of younger family members. More recent versions of this approach are grouped as examples of Durkheimian-modernization theory (see Neuman & Berger, 1988). This perspective uses the nation-state or society as the unit of analysis, and it posits that all nations develop through similar stages. Variables such as industrialization, population growth, urbanization, the division of labor, social disorganization, anomie, modern values, and cultural heterogeneity are used to explain variation in crime rates.
Recent theorizing in the Durkheimian-modernization vein uses the triad of modernization, civilization, and power to explain different criminological developments in diverse societies (Heiland & Shelley, 1992, p. 18). This synthesized modernization-civilization theory is seen by some as strengthening the explanatory power of the Durkheimian-modernization perspective by adding civilization and power variables. The civilization concept, drawn from Elias’s (1982) civilization theory, provides the link between the long-term structural changes and the alteration of personality structures. At the individual level, Elias suggests that historically there has been an ever-increasing refinement of customs and manners, an obvious pacification of the conditions of daily life and an intensification of instinctive and affected inhibitions. At the institutional level, Elias found three key societal factors in the development of greater individual control: (1) the monopolization of the instruments of power, (2) the centralization of state power, and (3) the creation of power monopolies.
According to Elias (1982), the limitations on individual behavior can find equilibrium only when they are part of a relatively stable and easily comprehensible arrangement of actions by the broader society. And such a situation occurs when there is a monopoly of social institutions. If Elias’s hypothesis holds true, that interpersonal relations vary with the civilization of society, then so should the nature of interpersonal violence and crime (Heiland & Shelley, 1992). And it would not be unreasonable to hypothesize that a more civilized society would have lower volumes of violent crimes but higher volumes of self-inflicted harmful behaviors such as drug use or suicide.
In their assessment of the Durkheimian-modernization perspective, Neuman and Berger (1988) found weak support for the perspective’s ability to explain variation in crime rates across countries. Believing other perspectives could work as well, Neuman and Berger consider a Marxian world-system perspective and an ecological-opportunity perspective. The Marxian world-system perspective defines crime as a sociopolitical concept that reflects production and power relations, which are intrinsically linked to a society’s relation to other societies (see, e.g., Humphries & Greenberg, 1981; Lopez-Rey, 1970; Neuman & Berger, 1988). This perspective treats industrialization and urbanization as the outcomes of capitalist expansion. Unlike the Durkheimian-modernization perspective, which sets modernization as a key predictor of crime rates, the Marxian-world system perspective uses modernization only as an intervening variable. In this way, it argues that the effect of industrialization and modernization depends on how modes of production articulate with one another.
Durkheimian-modernization, synthesized modernization-civilization, and Marxian world-system perspectives all provide a macro-level analysis of variation in cross-national crime data. The ecological-opportunity perspective takes a microlevel approach by concentrating on the criminal act itself. This theory argues that crime occurs where environmental conditions are favorable. For example, LaFree and Birkbeck (1991) studied victimization data in Venezuela and in the United States and found that in both countries, robbery typically involves public domains, lone victims, strangers, and incidents taking place outside buildings. Neuman and Berger (1988) see this ability to identify the specific situations that immediately precede in space and time the actual execution of a crime as a strength of the ecological-opportunity perspective. Should comparative criminologists continue to find that crimes occur in similar situations, regardless of country, we will have valuable information about criminal acts— although our knowledge about motivation to commit those acts will not necessarily be advanced.
It is apparent from this review of comparative criminology that it is a field of study in which scholars are drawing on traditional criminological theory and methodology while simultaneously expanding the discipline’s enquiry beyond events in a single country. In a similar manner, scholars interested in comparative criminal justice are borrowing from the knowledge base in disciplines such as sociology, political science, and criminal justice as they seek to understand how nations have sought to maintain a system of formal social control. We now turn our attention to this other area of importance—the broad field of comparative studies.
Comparative Criminal Justice
While comparative criminologists are busily comparing crime patterns cross-nationally, comparative justice scholars are considering the similarities and differences in how countries attempt to maintain social order and accomplish justice. Research has identified the different ways police organizations are structured (e.g., Bayley, 1985), described variation in criminal procedure around the world (e.g., Bradley, 1999), noted how jury systems differ among those countries using juries (e.g., Vidmar, 2000), reported on differences in sentencing policies and practices (e.g., Tonry & Frase, 2001), and offered explanations for variation in the use of imprisonment in different countries (e.g., Neapolitan, 2001). And those are just a very few topics and authors who are building the knowledge base of comparative criminal justice.
As an example of the type of information resulting from comparative justice studies, we offer a descriptive account of how the courts are structured in four different countries. To introduce another comparative technique, the countries are chosen to reflect each of four legal traditions. This concept of legal traditions—also called legal families—refers to a culture’s attitudes, values, and norms regarding the nature, role, and operation of law. Following the prevailing contemporary strategy (e.g., Fairchild & Dammer, 2001; Reichel, 2002), we use the four legal families of civil, common, socialist, and Islamic.
Civil Law Family and German Courts
The oldest contemporary legal family is the civil legal tradition. Persons familiar with the American legal system often find this term confusing because civil law in United States jurisdictions refers to private wrongs (such as contract disputes) rather than to the criminal law, which handles social wrongs (such as thefts and assaults). Some authors attempt to avoid this confusion between civil law as private wrongs and civil law as a legal tradition by referring to the Romano-Germanic law family. That designation is appropriate because the origins of the civil law tradition are in the Corpus Juris Civilis (450 b.c.) and the laws of the Germanic tribes, such as the Franks and the Bavarians, that bordered the Roman Empire in central Europe and eventually conquered most of Europe. Although use of the term Romano-Germanic avoids the problems of confusion, especially by Americans, between the civil law family and civil law as private wrongs, most comparative scholars prefer to refer to the civil law tradition. We honor that preference and use the term civil law as referring to one of the world’s major legal traditions.
A number of different codifications of civil law followed the Corpus Juris Civilis, including the famous Code Napoléon (1804), which codified the civil law of France. During the first part of the 19th century, the idea of codification spread from France to other parts of Europe and to Latin America. Germany was among the countries finding favor with the idea of codification, but the Germans did not agree with basic principles used in developing the Code Napoléon. With significant deliberation and historical research, Germany finally succeeded in creating its version of a civil code (the German Civil Code of 1896), which became effective in 1900.
The German national legislature determines, for the entire country, what behavior is criminal and what will be the accompanying punishment. However, each German state is responsible for administering both the law and the punishment.
Germany’s penal code places criminal offenses into one of two categories: felonies, which are punishable by imprisonment for at least one year, and misdemeanors, which are punishable by a shorter term or a fine (Kurian, 1989). The distinction is similar to that used in the United States, but German misdemeanors contain a broader range of offenses and include crimes such as larceny, fraud, or negligent homicide that would be considered felonies in many American jurisdictions.
A distinguishing feature of the civil legal tradition is a reliance on the inquisitorial rather than adversarial process for adjudication. The adversarial process, found especially in the common law tradition, assumes truth will arise from an open competition over who has the correct facts. The prosecution and defense propose their version of the “truth,” and the judge or jury determines which side has the most accurate portrayal. Rather than a competition between opposing sides, the inquisitorial process is more like a continuing investigation. All parties in the case are expected to provide all relevant evidence to the court. The judge, not the attorneys for defense or prosecution, then calls and questions witnesses. As a result of this process, the civil legal tradition has a procedurally active judge and rather passive lawyers. This is nearly opposite the adversarial process, which has a procedurally passive judge and rather active advocates.
The German states (Länder) are responsible for administering federal law, so all trials are conducted at the state level. Federal courts exist only to handle appeals from the state courts. Fairchild and Dammer (2001) describe three tiers of criminal courts in the German states. At the bottom are the Amtsgerichte courts that hear minor criminal cases. Above them are the Ländgericht where major criminal cases are tried. As the uppermost state court, the Oberländesgerichte court hears appeals from the lower state courts and will also try some exceptional cases (e.g., treason). Appeals from the state courts may eventually reach the Bundesgerichtshof, or the Federal Supreme Court. Five of these supreme courts operate as the court of last resort for appeals in criminal cases coming through the state courts. When the appeal is on a constitutional question, the Federal Constitutional Court decides the issue and returns the case to the lower court for final disposition.
Legal systems following the inquisitorial process seldom use a jury as Americans know the term. Instead, participation from the public is in the form of lay judges. Persons are selected as lay judges from nominees provided by a community council. The lay judges are assigned to trials over a 4-year period, but they serve an average of only 1 day per month. During the trial, the lay judges serve alongside a professional judge. Trials for the less serious crimes are heard by a panel of one professional judge and two lay judges. When the trial is for a more serious offense it will be heard by three professional judges and two lay judges. The verdict is by majority vote, so it is possible that the lay judges have a significant say in the outcome. However, since the professional judge or judges typically dominate the questioning and the deliberation, lay judges have to be especially assertive to have significant influence (Fairchild & Dammer, 2001; Weigend, 1983).
Common Law Family and Canadian Courts
You will recall that the primary source of law in the civil legal tradition is the written code. For the common legal tradition, the primary source of law is custom. The distinction between codification and custom is confusing because it is possible—in fact, likely—that common law is also expressed in written form. However, it is neither necessary nor sufficient that common law be written down for it to have legal authority. A brief review of the origin of common law will make this point more clearly.
In an attempt to return order to an increasingly disrupted kingdom, Henry II (1154-1189) issued the Constitutions of Clarendon (1164), which listed customs said to be the practice in England when the 12th century had begun. The idea was that traditional, consistent, and reasonable ways of deciding disputes provided the appropriate source of law. Determining whether something was “customary” fell to members of the community, who sat as a jury of peers. Judges were expected to follow legal custom by abiding by prior decisions in similar cases. In this manner, custom could be identified by reliance on the people and through reference to several cases. Importantly, however, the case was not referred to as the source of law; it merely provided proof that a legal principle (a custom) was once applied.
Eventually the practice of citing prior cases was done less to show custom and more as a way to reference authority. In this way, common law developed a reliance on precedent or stare decisis, wherein courts are expected to abide by previously decided cases. Those cases were in written form, but they cannot be considered written law in the way the civil legal tradition views “written.” The prior cases reflected custom, albeit custom in writing, rather than reflecting specific decisions by rulers or legislators. The criminal statutes found in common law countries today must be considered in the same way. When common law legislatures prepare written penal statutes or codes, they are not so much making written law (as do civil law legislatures) as they are proposing law. That is because final determination regarding the validity of a statute lies with the courts, who will evaluate the legislature’s work. In other words, civil law legislation stands on it own because the legislature is the source of law. But common law legislation is not authoritatively established until it passes examination of the courts because custom is the source of law.
Because common law developed in England and influenced the application of law in the British colonies, this legal tradition is the one most familiar to citizens of the United States. Today, the United States, Canada, Australia, New Zealand, India, and former British colonies in Africa have legal systems counted among those of the common law tradition. Exceptions include parts of those countries where France had great influence in the province’s or state’s history. So Canada’s province of Quebec and the state of Louisiana each have a strong civil law tradition despite being part of a common law country.
The way Canada has classified an offense determines how the case flows through the system. Therefore, it is necessary to understand the classification before being able to follow a case through the courts. Also, it is important to note that the French influence in Quebec gives that province some unique aspects in its court structure and trial process. For that reason, the following description applies generally to the other nine provinces and the two federal territories.
Canada’s Criminal Code places crimes into one of three categories. Summary conviction offenses are the least serious and result in only slight punishment. They include, for example, committing an indecent act, creating a public disturbance, soliciting prostitution, and driving a motor vehicle without the owner’s consent. Indictable offenses are the most serious crimes and bring the harshest penalty. Typical indictable offenses are murder, possession of stolen goods, dangerous driving, and sexual assault. Falling between summary and indictable offenses are hybrid offenses such as theft of an item valued at less than $1,000 (Canadian), impaired driving, and some types of assault (Griffiths & Verdun-Jones, 1994; Pease & Hukkila, 1990).
Canada’s provinces and territories generally have a three-tiered court system going from provincial and territorial courts at the lowest level through superior courts (with name variation by province) to the courts of appeal at the highest level (Griffiths & Verdun-Jones, 1994). The provincial courts carry the greatest workload of any court level because all cases enter at this level. The majority will also be tried and finally disposed of in the provincial courts, but others (the most serious indictable offenses) will be sent to the superior court for trial.
Provincial courts may have separate divisions to handle family matters, cases of juvenile delinquency, traffic cases, and criminal cases. Most of the criminal cases are those that have been charged as summary conviction offenses. In general, such offenses may be tried only before a provincial court judge sitting without a jury. Accused persons may appear in person at the trial or may send their lawyer to represent them—unless the judge has issued a warrant requiring their attendance. The term summary conviction implies that casual and concise justice is dispensed.
Indictable offenses, and hybrid offenses charged as indictable, can be heard at either the superior or provincial court level. Griffiths and Verdun-Jones (1994) explain that the particular form and place of trial in superior court are determined by the category of indictable offense being charged. The most serious indictable offenses (e.g., murder, treason, piracy) may be tried only by a judge of the superior court sitting with a jury, unless the judge and the attorney general consent to forgo the jury. The least serious indictable offenses (e.g., theft, fraud, possession of stolen goods) may be tried by only a provincial court judge. If the charge is on an indictable offense not falling into either of those categories, the accused can choose the mode of trial. Robbery, dangerous driving, assault, and breaking and entering are examples of these “electable” offenses. The choices available to the accused are to have a trial by a provincial court judge, a superior court judge and jury, or a superior court judge. Failure to make a choice sends the case to a judge and jury. At the federal court level, and standing as the country’s court of last resort, is the Supreme Court of Canada. The Supreme Court justices are appointed by the federal government from lists prepared by the provinces.
Socialist Law Family and Chinese Courts
The designation of socialist law as a separate legal tradition is the most controversial of the four legal families. In fact, some comparative legal theorists do not see the socialist legal tradition as a separate family. However, valid arguments recognize the similarities between socialist and civil law while maintaining that cultural and philosophical differences between the two allow separate classification. For example, both civil and socialist traditions view law as stemming from written codes, but the civil codes (according to the socialists) are the work of special interest groups, whereas the socialist codes represent the ideals of the people’s revolution. In addition to its particular philosophical view of law’s role, we consider socialist law as a separate tradition because we can learn much about the nature of law in systems emphasizing communal values at the expense of individualism.
The legal system of the Union of Soviet Socialist Republics (U.S.S.R.) provided the philosophical and technical base for a socialist legal tradition. The “fall” of the U.S.S.R. did not result in the collapse of the socialist legal tradition any more than the fall of the Roman Empire destroyed the civil legal tradition. Countries currently reflecting major aspects of the socialist legal tradition are Cuba, North Korea, Vietnam, and China.
One characteristic setting the socialist legal tradition apart from others is its view of law as artificial. The Romans and Western Continentals viewed law as binding because they appropriately authorized and recorded it. The English viewed law as binding because it recognized immemorial custom. The Russian people, even before the arrival of the U.S.S.R., never came to see law as binding at all. For the Russians, law was an arbitrary work of an autocratic sovereign and a privilege of the bourgeoisie. Russian princes and czars not only created the law, they were above it. This point is important to understanding the role of law as perceived by Karl Marx and as implemented by Vladimir Lenin.
After the Bolshevik revolution (1917), Lenin, as the head of the new Soviet state, drew on the traditional Russian view of law as artificial. A basic tenet of Marxism-Leninism was that under communism, the need for law would wither away. Because law was artificial, that philosophy was neither surprising nor unreasonable to the Russian people. Nevertheless, until it had faded, law could play an important role in achieving a communist state. Law would, in other words, be used to achieve other ends. Rather than being an absolute value that dictated how people and their government must behave, law would be a tool for accomplishing communist goals. For the Russian people, the idea that law was subordinate to policy was not much different from its being subordinate to the will of princes and czars. Law was, after all, artificial.
Another characteristic setting the socialist legal tradition apart from others is its view of law as subordinate to policy. Law, under this tradition, is used to achieve a desirable end rather than being an absolute value limiting both the leaders’ and the people’s behavior. The policy to which law is subordinate places the rights of the collectivized economy and the socialist state above any rights the individual might have. Socialists see the subordination of law to policy as an improvement over the civil and common traditions, because subordinated law can be used as a tool to achieve socialist economic and educational goals.
David and Brierley (1978) addressed the economic role played by socialist law when they contrasted it with civil and common law’s role in capitalist economies. Law in a capitalist economy tells the citizens that a just and moral society, achieved through law as an absolute value, results in economic order. Under the socialist legal tradition, economic order, achieved through law as a tool, results in a just and moral society. The reversal of attitudes toward law’s role in the economy gives the socialist legal tradition different ideas about law than those found in civil and common traditions.
Law’s educational role was an important feature for Lenin and remains a key feature in today’s socialist law countries. In the former U.S.S.R., the People’s Republic of China, and other countries following a socialist legal tradition, law operates to educate people about the principles of socialism and to guide them toward the communist ideal. Socialist judges do not simply apply the law, as they do in civil law countries, nor do they make or validate the law, as they do in common law countries. Judges in the socialist legal tradition must help ensure the success of government policy by educating the people.
Political and economic changes beginning in 1989 had an important affect on the legal systems in the former countries of the U.S.S.R. and in other Central and Eastern European countries. Because an important aspect of that change was a growing appreciation for the rule of law, it seems appropriate to identify those countries as more closely affiliated today with the civil, rather than the socialist, legal tradition. But similar changes have not occurred in all socialist countries. Cuba, Vietnam, North Korea, and the People’s Republic of China were less affected by challenges to traditional socialism and provide contemporary examples of the socialist legal tradition. China provides our specific example.
China’s formal court system has four tiers. Going from the bottom up, they are the Basic People’s Court, the Intermediate People’s Court, the Higher People’s Court, and finally the Supreme People’s Court. The Basic People’s Courts, which are found in each county and municipal area, handle the majority of the ordinary criminal trials. The Intermediate People’s Courts hear more serious criminal cases and appeals from the Basic People’s Courts. Major criminal cases and appeals are heard by the Higher People’s Courts, which operate at the province level and in some major cities. The Supreme People’s Court serves primarily in an appellate capacity but will also hear major criminal cases that have an impact on the entire country (Situ & Liu, 1996).
The courts are essentially agencies of the central government (i.e., the Communist Party) and as a result do not have judicial independence in the way Westerners think of the term. Court activities at each level are reviewed by a judicial committee. Members of the judicial committees are appointed by the People’s Congress at each level, and it is through the People’s Congress that the central government has its input and influence.
At the trial, those accused have the right to offer a defense, to argue the case, to explain their innocence, or to request leniency in punishment. Although the defendant can provide self-defense, it is also possible to hire a lawyer or ask a close relative to defend one’s case. When cases are at trial with a public prosecutor, the court can appoint a lawyer to speak for the accused (Situ & Liu, 1996).
Like the situation in most civil law countries, China does not use a jury but instead has citizen input through representation of lay judges or people’s assessors. Minor criminal cases are heard before a single judge, but more serious cases come before a panel of one to three professional judges and two to four people’s assessors. The people’s assessors are laypersons who have reached age 23 and are eligible to vote.
In addition to its formal justice system, China is recognized as having an especially well-developed system of informal justice. In fact, the informal system is so integral that it sometimes operates alongside the formal system. The Public Security Committees operate in this capacity at the policing level and the People’s Mediation Committees (PMC) perform the informal role at the court level. China’s constitution requires each urban neighborhood and each rural village to have a PMC. In addition, PMCs can be established at workplaces, schools, and other institutions.
Although the PMCs serve the socialist ideology very well, they have historical ties to Confucianism and the belief that moral education through mediation is the best way for communities to resolve conflict. The PMCs operate under the guidance of local governments and local people’s courts. PMC members are elected by the people living or working in the PMC’s jurisdiction. When a conflict arises, the parties can ask that a mediator get involved. But the PMC does not need to wait for an invitation. Because the mediators live in the community, they usually hear about problems early on and can respond quickly.
Islamic Law Family and Saudi Arabian Courts
The Islamic legal tradition is unique among legal families in several respects. The first is its perception of law’s source as sacred rather than secular. The other legal traditions, especially civil and common, have religious links, but they remain distinct and separate from religion. The Islamic legal tradition, on the other hand, is completely reliant on religion.
Muslims, like Christians and Jews, believe in one God, whom Muslims call Allah. Of Allah’s messengers to the world, Muhammad (circa 570-632) is considered the most recent prophet by Muslims. The religion prescribed by Muhammad is Islam (Arabic for submission), and its followers are “those who submit to Allah” (Muslims).
Islamic law is called the Shari’a, “the path to follow.” Its primary ingredients are the Qur’an (Islam’s holy book) and the Sunna (the statements and deeds of Muhammad). These two elements identify both crimes and punishments, but they provide very little information regarding the legal process by which offenders are brought to justice.
Three categories of crime are distinguished in the Shari’a: hudud, quesas, and ta’azir. Hudud, which are offenses against God, require mandatory prosecution and must be punished in the manner prescribed in the Qur’an or the Sunna. The seven hudud crimes are adultery or fornication, defamation, drinking alcohol, theft, highway robbery, apostasy (the rejection of Islam by one professing Islamic faith), and rebellion or corruption of Islam. The punishment for hudud crimes include death by stoning for a married person committing adultery, hand amputation for theft, and whipping for persons using alcohol (Sanad, 1991).
Quesas crimes are less serious than hudud crimes and more serious than ta’azir crimes. They are similar to what other criminal codes call crimes against persons and include acts such as voluntary and involuntary homicide, assault, and battery. Punishments for these crimes can be acts of retaliation by the victim or his family (e.g., the eye for the eye, the nose for the nose) or financial compensation by the offender to the victim or his family.
The least serious of Shari’a crimes are the ta’azir. Included in this category are all offenses not identified as either hudud or quesas crimes. Examples of ta’azir crimes are petty theft, homosexuality, eating pork, neglect of prayers, and acts damaging to the public interest. A ta’azir penalty can be execution but is more likely to be whipping, imprisonment, or a fine (Sanad, 1991).
In the Shari’a, God identified the crimes and stipulated the penalty, but the law’s application fell to humans. Not surprisingly, humans disagreed about how to apply God’s law. Some Muslims took a strict interpretation and believed that every rule of law must be derived from the Qur’an or the Sunna. Others believed human reason and personal opinion could be used to elaborate the law. The latter camp suggested that as the centuries progressed from Muhammad’s time, there were new behaviors or situations that had not been directly addressed in the early 7th century. Human reason, these Muslims believed, could be used to fill the gaps.
Because human reason could become human legislation, which is inappropriate because law comes from Allah and not from humans, it was important that the reasoning be subordinate to divine revelation. The result was a process known as qiyas, or reasoning by analogy. For example, Lippman, McConville, and Yerushalmi (1988) note that some judges have sentenced committers of sodomy (a behavior not mentioned in the Qur’an or Sunna) to the same penalty the Qur’an provides for adultery by reasoning that sodomy and adultery are similar offenses. The presence of ta’azir crimes also allows the Shari’a to keep pace with modern society by making criminal any act that might cause damage to the public interest or the public order. In this way, acts not specifically mentioned 14 centuries ago (such as traffic violations, embezzlement, or forgery) are still considered illegal by divine revelation rather than human legislation.
Traditional Islamic societies such as Saudi Arabia mold their court system to ensure that Islamic law is the basis for court proceedings and decisions. There is a dual court system in Saudi Arabia, with Shari’a courts handling criminal cases, family law, and some civil law. A separate system of administrative tribunals has jurisdiction over specific issues such as traffic offenses and laws related to business and commerce. Our concern is with the Shari’a courts, which follow a four-tiered structure moving from the lower or general courts at the bottom, to the High Courts, then to the Courts of Appeal, and finally to the Supreme Judicial Council.
The general courts are presided over by a single Islamic judge (qadi). These courts are found in most every town and deal with minor domestic matters, misdemeanors, small claims, some ta’azir crimes, and hudud offenses of intoxication and defamation. Hudud and quesas offenses are heard in the High Courts, which also hear cases on appeal from the lower courts. A single judge hears the case unless a sentence of death, stoning, or amputation is required. A three-judge panel hears those cases (Moore, 1996). Final appeal is before the Supreme Judicial Council, which is also the agency making regulations and policies for administering the country’s court system as a whole. The Council, composed of 11 members, cannot alter a verdict but instead refers the case back to the court of appeals for reconsideration.
Although the structure of Saudi courts is not especially unique, some of the procedural law governing the trial process is. Sanad (1991) highlights the rules of evidence as a particularly important distinguishing feature of Islamic law in general. Most Muslim scholars maintain that evidence in criminal cases must be restricted to confession and testimony. Regarding confession, it is not sufficient for the accused to simply admit to the charges. For a confession to be valid, the confessor must be a mature, mentally sound person who gives, with free will, a confession that is neither doubtful nor vague. Coerced confessions presumably are not acceptable or admissible, but Moore (1987) says flogging and long detention of suspects who refuse to confess occur in Saudi Arabia.
For the second type of evidence, testimony, at least two witnesses should provide consistent testimony before a conviction on hudud and quesas crimes can be given. But just any witness is not acceptable. To be condoned, the witness must be an adult male (one school accepts two females as equivalent to one male), known to have good memory, sound mind, and good character.
In addition to requirements about who can testify, there are rules regarding how many witnesses are required and how the testimony is given. For a conviction on hudud and quesas offenses, at least two witnesses should provide consistent testimony about the accused’s actions. In the case of adultery, four witnesses are required. Because there are seldom times when two devout male Muslims observe a burglary in process or four such witnesses watch adultery taking place, the “evidence” in many criminal trials is incomplete. At this point, the rules regarding how testimony is given come into play in the form of oaths.
According to Rosen (1989), witnesses under Islamic law are not sworn in before testifying. In fact, there is even some understanding that less than truthful statements may be made in court as witnesses are speaking freely. However, if testimony reaches a point where neither side has adequately supported its claim, one party may challenge the other to take an oath. If the person challenged does so, he wins the case. Or the person challenged can refer the oath back to the challenger who can secure victory by swearing to his own truthfulness. This process of challenging is not a haphazard one. The qadi plays a very important role because he decides which party will first challenge the other to take an oath. That decision is important because the first to swear wins the case. Rosen suggests that the qadi, after observing the comments from witnesses and from the parties themselves, looks for the person most likely to know what is true about the case. That person is designated as the one first to be challenged to take the oath. Because false swearers will suffer the consequences of judgment day, devout Muslims take oaths very seriously and, presumably, truthfully.
By categorizing the world’s legal systems as falling into one of four legal traditions, comparative justice scholars are encouraging us to benefit from others’ experiences, broaden our understanding of the world, and combat transnational crime. They are, in other words, helping us realize the benefits of comparative study as described at this chapter’s start.
Future Issues for the Comparative Crime and Justice Community
Predicting future issues in any area is always risky. But we do not speculate too much when suggesting that the coming decades will see continued increase in transnational crime and more transnational cooperation to combat that crime. These points form the crux of this book, and they are fully developed in the remaining chapters. However, we conclude this chapter with a brief overview of these issues as we set the stage for the more topic-specific chapters.
Predicting an increase in transnational crime is less difficult than defining exactly what acts constitute transnational crime. Typically, when we think of crime, we are considering those events that originate, are carried out, and affect a local area—even if that local area is the nation. The burglar, assailant, or auto thief usually conceives the crime in the same general locale where it is committed. Furthermore, the impact of the crime is mostly on that locale. Transnational crime, on the other hand, has its origin, execution, and impact in two or more nations. Dobriansky (2001) makes the point with the drug ecstacy, which is manufactured primarily in the Netherlands and is trafficked in the United States by, among others, Israeli organized crime groups. That crime’s impact is likely felt in all three countries.
Even after accepting a definition of transnational crime that requires the crime’s origin, execution, and impact to involve more than one country, there is no agreed-on list of crimes fitting that definition. Most people would agree that cybercrime, drug trafficking, and money laundering are examples of what we mean by transnational crime. There might be less agreement about environmental crime (e.g., pollution from one country causing environmental harm in another country). This lack of specificity regarding the activities constituting transnational crime cannot continue. Our first prediction regarding the future of comparative crime and justice is that we will see greater clarity regarding what activities are examples of transnational crime. Whether a result of action by practitioners, researchers, or policymakers, there will have to be greater agreement regarding the subject matter of transnational crime.
In addition to clarification of what constitutes transnational crime, we also believe there will be increased understanding and appreciation of this phenomenon by citizens of each country. Virtually all corners of the world are affected by at least some type of transnational crime. But there is considerable variation in the attention the crimes receive from a nation’s justice agencies, politicians, media, and citizens. American citizens, for example, are very much aware of the transnational aspect of drug trafficking but are often not so familiar with environmental crimes and crimes against a cultural heritage. Citizens in European countries may fully appreciate the transnational aspects of organized crime but may not have much understanding of how cybercrime and money laundering can affect their daily lives. Increased awareness is already occurring, but we believe it will become an even greater aspect of daily life—not necessarily because more individual citizens will be directly affected by a specific transnational crime (although that too will certainly happen) but more because government resources will be directed toward combating transnational crime, so politicians and the media will encourage citizens to become informed.
Finally, we anticipate expanding cooperation among nations in the areas of enforcement and adjudication. At present, Interpol is the premier example of international cooperation in law enforcement. Interpol is not an operational police force; instead, it assists local and national police agencies in conducting crime investigations, collecting and compiling statistics, and delivering arrest warrants ordered by courts. Because of Interpol, police have learned that through collaboration and communication much can be accomplished in the fight against crime. With Interpol firmly in command of international coordination among law enforcement agencies, there is no reason to anticipate anything other than continued sophistication and cooperation at that level. However, changes may occur at regional levels as geographically linked nations collaborate to combat transnational crimes that particularly impact their region. The activities of the European Police Organization (Europol) provide a prime example of such regional cooperation, and we anticipate that nations in other regions will follow the European Union’s model and develop specific agencies to coordinate law enforcement efforts in their region.
As more transnational criminals are caught, there will be greater effort to express global outrage toward the offense and the offender. Appropriate and understandable issues of national sovereignty means the majority of transnational offenders will be tried and punished according to the laws of a particular country. However, we also anticipate an increase in the use of international tribunals and supranational courts for a greater variety of transnational offenders.
Current examples of adjudication at a supranational level are mostly in cases where a legal solution is required between two countries or when justice must be meted out to offenders responsible for acts that violate international standards or treaties. The judicial mechanisms established for such cases are developing and gaining legitimacy at a rapid pace. For example, the International Court of Justice (ICJ) is the principal judicial organ of the United Nations (ICJ, n.d.). The Court has a dual role of settling, in accordance with international law, any legal disputes submitted to it by the 185 United Nations member states and neutral parties (Nauru and Switzerland) and to give advisory opinions on legal questions referred to it by international organizations.
Another supranational court is the European Court of Human Rights (ECHR). The ECHR allows for individuals to bring cases directly to a judicial body after they have been denied relief in their national courts (Council of Europe, n.d.). Generally, the mission of the ECHR is to interpret and uphold the European Convention on Human Rights and Fundamental Freedoms, a treaty prepared by the Council of Europe in 1950.
The most recently formed transnational court, ratified by United Nations member states in 2002, is the International Criminal Court (ICC). The ICC is the first ever permanent, treaty-based, international criminal court established to promote the rule of law and ensure that the gravest international crimes do not go unpunished (ICC, n.d.). It differs from the ICJ, which does not have criminal jurisdiction to prosecute individuals. When implemented (a number of statutory measures and practical steps still have to be taken before the Court becomes operational), the ICC will have jurisdiction with respect to the crimes of genocide, crimes against humanity, and war crimes. The Court will also have jurisdiction over aggression, but countries have not yet agreed on the definition of aggression. The ICC will not exercise jurisdiction over aggression until the crime has been further defined and conditions under which the Court will exercise its jurisdiction have been agreed on.
As of May 2004, 94 countries had become state parties to the ICC. The United States is not among those countries, but it seems clear that even without U.S. participation, the ICC will be playing a key role in the future of transnational crime and justice. For example, even though the ICC does not have direct jurisdiction over acts of terrorism, it may be able to prosecute terrorist acts when they amount to crimes against humanity—which is under ICC jurisdiction. Also, depending on how the crime of aggression is eventually defined, other transnational crimes may come under ICC jurisdiction.
These developments in transnational crime and justice will also affect the disciplines of comparative criminology and comparative criminal justice. We anticipate that academic programs will continue to create and expand course offerings in comparative criminology and criminal justice and that practitioners will find ever-increasing reasons and opportunities to engage in joint ventures with colleagues in other countries. The other chapters in this book will provide another resource to the increasingly solid foundation being built by scholars and practitioners around the world as we work together to understand the possibilities for a safer and more secure world.