Global Policing and Transnational Rule with Law
Transnational Legal Theory, vol. 6, 2015, Forthcoming
50 Pages Posted: 5 Feb 2015 Last revised: 23 Feb 2015
Date Written: February 4, 2015
This paper explores the connection between transnational law and policing. Following a brief overview of the global policing field and its relationship with law, we use socio-legal theories of policing to examine four examples of law in action: (i) the global money system, (ii) transnational mobility, (iii) intellectual property and (iv) high policing. These examples illustrate how legal instruments become tools in the hands of public and private social actors operating in the transnational sphere. The paper advances three arguments. First, we argue that global policing practices exemplify rule with law not rule of law. That is, technocratic ‘legal engineers’ use legal ‘power tools’ to achieve specific ends that usually uphold the existing global system dominated by seigneurial states and powerful private corporations. Examining transnational law in action illustrates that the global order is a rule with law system. Second, we argue that attempts to codify transnational (criminal) law and procedure must recognise the distinction between ‘law in the books’ and the ‘living law’ revealed in the practice of transnational policing. Rather than constraining power, law is better understood as a tool available to police that enables intrusive surveillance and coercion (among other things). Third, we argue that the study of transnational policing should not be restricted to the response to transnational organised crime or defined as coterminous with transnational criminal law. Global policing practices deploy many kinds of public and private law as power tools in the governance of the global system.
Keywords: Transnational law, policing, police, globalization, governance
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