Book Chapter in the Oxford Handbook of Criminal Law, Markus Dubber and Tatjana Höernle (eds), Oxford University Press, Forthcoming
22 Pages Posted: 16 Oct 2013
Date Written: October 15, 2013
This chapter seeks to provide an overall account of criminal jurisdiction under both international and domestic law. Section 2 presents the overall analyitical framework. It advocates understanding criminal jurisdiction as a Hohfeldian power to mete out legal punishment to a particular offender, and explains how this notion helps to distniguish conceptually between adjudicative and enforcement jurisdiction, and between the ambit and venue of the criminal law. The following Section presents and critically assesses the basic legal framework currently in force for domestic offences, namely, the principles of territoriality, nationality, passive personality and protection and the arguments that have been traditionally given to defend them. Section 4 discusses less central bases of criminal jurisdiction, such as the principle of vicarious jurisdiction, fraude à la loi, and jurisdiction over organized or transnational criminality, and seeks to provide conceptual clarity as to the best way to understand each of these extensions under the existing framework. Finally, Section 5 explores the three main theoretical approaches under which the existing legal framework has been usually defended or criticized. It therefore takes issue with 'comity' as the overall explanatory tool, with standard retributivist and deterrence accounts, and with the claim that the scope of State's criminal jurisdiction is derived from the internal structure of the notion of responsibility. Section 6 briefly concludes.
Keywords: Jurisdiction; Public International Law; Criminal Law; Punishment; Authority
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