Legal Transplants or Legal Patchworking? The Creation of International Criminal Law as a Pluralistic Body of Law

Cassandra Steer 

University of Amsterdam; Cornell University - Law School
June 6, 2013

Elies van Sliedregt (ed.) “Pluralism and Harmonization in International Criminal Law”, Oxford University Press, 2013 (Forthcoming) 
Amsterdam Center for International Law No. 2013-09
Amsterdam Law School Research Paper No. 2013-31 
Abstract:      
Since ICL is considered to be a branch of public international law, it has been born out of the same institutional framework that governs law-making and law-applying in this traditionally inter-state playing field, yet because it deals with individual criminal responsibility, its normative content is drawn from domestic criminal law systems. Inter-systemic “borrowing” has occurred for centuries as a process of law reform, whereby domestic systems look to foreign jurisdictions for solutions to shared legal problems. The comparative law notion of legal transplants is therefore a useful analytical tool in ICL, however in the case of this nascent branch of international law, it is not so much a question of law reform, but of law creation.

There is much to be learned from comparative law methodology and the scholarship on legal transplants, however the process of creating an entire system of law could perhaps better be described as legal patchworking. An inevitable pluralism emerges as multiple decision makers in multiple decision-making forums, both international and domestic, patchwork together various notions and norms drawn from other pre-existing systems. It would appear that international criminal lawyers need to consider themselves not only specialists in a new field, but also both comparativists and legal pluralists. The very nature of our field demands a multi-focal perspective. In order to minimize the risk of myopia, therefore, this paper deals with the question at hand: in what way can scholarship on legal transplants and legal pluralism amongst domestic legal systems offer some guidance on ensuring transplanting and patchworking in ICL are as successful as possible?

Number of Pages in PDF File: 36

Keywords: international criminal law, pluralism, harmonization, fragmentation, international tribunals, leal theory, law making

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2275233