https://orcid.org/0000-0003-1005-7652
ABSTRACT
The introductory article of Raimo Lahti starts with the description of Finnish–Chinese colloquia on criminal law 2016–2022, i.e. the cooperation in criminal sciences between the Peking University and the University of Helsinki. The author continues with the analysis of trends towards internationalization and regionalization of criminal policy and criminal justice – more generally, towards global law. The need of comparative criminal law is emphasized. The author's examples are mostly from the Nordic countries and Finland. He also prioritizes the examination of criminal law theory in transition and invites to express global views on criminal law theory.
1. Three Finnish–Chinese colloquia on criminal law 2016, 2018 and 2022
The third Finnish–Chinese Colloquium on Criminal Law (in Helsinki on 25 November 2022) is continuing our cooperation in the field, now on-line due to the COVID-19 pandemia. For me personally, the starting point for this kind of cooperation was in 1994, when I took part as a member of the Finnish delegation in the first Finnish–Chinese seminar on the rule of law in criminal law and procedure, organized in Peking and aimed at a serious of similar seminars between the Ministries of Justice of Finland and China.
Our academic scientific cooperation has been deepening since the first bilateral colloquium between the Universities of Helsinki and Peking in Helsinki since 2016. At that first colloquium there were presentations on the general criminal and legal policy issues in the field of criminal law.Footnote1 At the second colloquium at the University of Peking in 2018 we had presentations which also have connections with the general topic of today’s third seminar, namely themes related to the preventive turn of criminal law. For instance, I had in 2018 a presentation about the life imprisonment and more generally long-term sentences (including punishments for dangerous recidivists). A revised version of this presentation has later been published.Footnote2
Following introductory remarks deal with the general topics on the internationalizion and regionalization of criminal policy and criminal justice, with the special emphasis on preventive criminal law.Footnote3
2. Harmonization of criminal laws and the need of comparative law – towards global law
Since the 1990s, we can see a strong development of international criminal law and an increase of the importance of the United Nation’s (UN) activities in global criminal policy taking place.Footnote4 At the same time we notice similar regional tendencies, in particular on the European level. In our region, the most powerful organizations are the Council of Europe and the European Union (EU). Their legal instruments have reflected and generated common principles based on the values of democracy, human rights and the rule of law.
The intensified internationalization and regionalization of criminal law have changed in Finland the role of comparative law and criminal sciences in general. There is much more need for comparison of legal orders due to the emergence of European criminal law and international criminal law and due to the interaction between European and global legal regulations and the national legal orders.Footnote5 This kind of interaction between international law and domestic law has been strongly emphasized by Mireille Delmas-Marty, who repudiates ‘any binary vision that opposes the national to the supranational and the relative to the universal’.Footnote6
Scientific cooperation should be, when possible, multinational. The significance of bilateral arrangements is diminishing, although they also may have a positive role in furthering common research projects and personal contacts. Saying this, I do not undermine our bilateral Finnish–Chinese co-operation, because the parties Finland and China represent different legal cultures and the exchange of ideas is therefore very fruitful. Strengthening of the activities of scientific organizations (like Association Internationale de Droit Pénal, AIDP) and of various networks of scholars is advisable in order to produce ambitious scientific comparative works, in Europe such as the ‘Corpus Juris’ proposal and its implementationFootnote7 , ‘Economic criminal law in the European Union’Footnote8 , ‘A Programme for European Criminal Justice’Footnote9 and ‘A Manifesto on European Criminal Policy’.Footnote10 As for the AIDP, the latest two uniting topics for international conferences should be especially mentioned: ‘Criminal justice and corporate business’ (2016–2019) and latest ‘Artificial intelligence and criminal justice’ (2021–2024).Footnote11
The importance of the studies on comparative criminology and criminal justice should not be forgotten either. For instance, empirical studies should increasingly be planned in research groups so that they can be repeated in various countries in order to strengthen their verification value and applicability in decision-making. We need more evidence-based criminological research to be utilized in criminal-policy planning and as a foundation for rational criminal policy. This is particularly true in relation to the decision-making and actors within the EU, where criminal policy has not so far been made on the basis of coherent conceptions and by utilizing relevant criminological research.
Ulrich Sieber has analysed the trend to harmonize criminal law as one result of worldwide globalization and he explains it by four significant forces: the increasing development and international recognition of common legal positions for the protection of human rights and for the political and economic aims; the growth in international security interests; the growing influence of actors other than nation states; and the increasing international cooperation based on new institutions with new instruments of legal approximation.Footnote12
There is also increasingly debate on the trends towards transnational criminal lawFootnote13 and towards law and globalizationFootnote14 and about the contents of these increasingly used concepts. Transnational criminal law in the large sense covers international criminal law in stricto sensu, and so the crimes under international law (core crimes) are topical after the establishment of the International Criminal Court (ICC) and the aggressive war of Russia against Ukraine. Jaakko Husa writes that ‘[b]ecause of globalisation, the need for a non-nation-state-bound understanding of overlapping legal sources is constantly growing and the necessity for knowledge of how to deal with polycentrism and pluralism of laws has grown intensely’.Footnote15 In a move from transnational criminal law to global criminal law is according to Kimmo Nuotio desirable, because such a trend could lead to a broader setting of law and development studies and of sustainable development.Footnote16
3. Challenges of internationalization and regionalization of criminal policy and criminal justice – a Nordic approach as an example
The increased internationalization and regionalization of criminal policy and criminal justice are challenging for legal scientists, legislators and practitioners. The administration of criminal justice, which so far has been an essential element of state sovereignty, has partially moved, and is still moving, beyond the direct control of nation-states. In Europe, the European Convention of Human Rights and its case-law have an important role in creating the European model of criminal procedure. The international criminal tribunals have a similar role in furthering respect for fair trial rights.Footnote17 Domestic courts are in key positions in strengthening human rights according to these standards. In particular, the ICC, whose competence relies on the principle of complementarity, needs a jurisdictional shift from the ICC to domestic courts when dealing with the serious violations against humanitarian law, as defined in the provisions of the Rome Statute.Footnote18 For example, Finland has transformed those provisions into Penal Code provisions,Footnote19 and in one case a person has been charged for participation in genocide in Rwanda and found guilty and sentenced by the Helsinki Court of Appeal.Footnote20 Challenges and alternatives to ICC have recently been examined in an AIDP symposium in 2021.Footnote21
One of the challenging questions to comparative criminal scientists is: To what extent can we speak about common legal positions in respect of the general part of criminal law, i.e. common legal principles and concepts? Although there is a common ground for the doctrines of intent in the Nordic countries, a unified ‘Dolus nordicus’ is missing even in this sub-region of Europe where the countries have common legal traditions.Footnote22 An outstanding comparative research project of the Max Planck Institute for Foreign and International Criminal law for creating a universal meta structure for criminal law (universale Metastruktur des Strafrechts) is an ambitious endeavor to develop international criminal law doctrines.Footnote23
The diversification of certain areas of criminal law – typically internationalized humanitarian law economic corporate criminal law and – is reflected in the pluralism of general legal doctrines. Therefore, there is a need for developing a more dynamic conceptual and system thinking in order to control many parallel legal regulations and the diversity of the regulated phenomena.Footnote24 For instance, there are cogent criminal-policy reasons for certain differentiation of traditional concepts and principles of criminal law in order to take into account the nature of macro-criminality and so-called organizational crimes, i.e. when developing doctrines for regulatory offences (administrative penal law).Footnote25 Nevertheless, there are limits to this differentiation, because the utilitarian (effectiveness) aims must be balanced with the considerations of fundamental rights and freedoms of the accused persons.
In Nordic criticism against the unification of European criminal policy, the main arguments have concentrated on the concern that the basic values of the ‘Nordic model’ would then be endangered. In the Scandinavian thinking, for example, the role of crime prevention is particularly emphasized; specific criteria of rationality in criminal policy such as legitimacy and humaneness are applied; and the level of repression in criminal sanctions in relatively low. Especially the EU-criterion of dissuasiveness is criticized for its strong connotation with deterrence (negative general prevention) and high level of punitiveness and repression. It is, however, a positive sign that according to a recent EU planning document (Communication ‘Towards an EU Criminal Policy’) necessity and proportionality are underlined as guiding principles in criminal policy and that clear factual evidence ought to be required for the policy-making.Footnote26
According to critics, the principles of subsidiarity and proportionality should be strongly emphasized in criminal policy. The demand for the legitimacy is particularly strong as to criminal justice systems; so cultural and national traditions should be taken seriously into account.Footnote27 At a regional, European level such legitimacy is difficult to achieve. In order to increase acceptability of and confidence in European institutions (primarily in the EU), there should be general awareness of common European values (as now captured by the concept of the area of freedom, security and justice). Deficiencies in the decision-making processes and their transparency should also be removed (the idea of citizens’ Europe and the sufficient and equal freedom of action of member states should be combined). And finally, the commitment to the observance of human rights and fundamental freedoms ought to be strengthened.
4. Conclusions for third Finnish–Chinese colloquium
The preceding examination has indicated how important it is to compare legal systems and cultures. Legal comparison would be also the way to harmonize criminal justice systems and to develop global views for their development. As for this Third Finnish–Chinese Colloquium, I would especially emphasize the importance of learning about the factors and trends concerning criminal law theory. Accordingly, this colloquium could continue a longer Finnish tradition in the examination of criminal law theory in transition and in finding global views of criminal law theory.
In the preparation of the Finnish total reform of criminal law we organized an international research colloquium in 1990 at the University of Helsinki, in which 38 authors from 12 countries took part representing various legal traditions (but not the Chinese legal culture). In my introductory statement for that international colloquium. I said the following, which may instruct also the presentations of this bilateral colloquium:
‘Criminology and criminal policy should be regarded as relative disciplines, not only in relation to each other and to criminal law theory, but also to social theory, moral philosophy and political science. This demand is illustrated by an exemplary list of issues which have turned to be important in criminal law reform:
– What kind of criteria – principles (values) and policies (interests) – should guide policies and legislative works aiming at rationality, and how should we compare and balance those divergent criteria?
– More concretely, should we strive for making criminal law more efficient, just and humane? How adequately can modern criminal law be characterized by the criteria of legality, efficiency and legitimacy?’Footnote28
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 As to the published presentations, see Peking University Law Journal, Vol. 5, Issue 1, 2017. See also on these issues my ‘open access’ article collections of Raimo. Lahti, Zur Kriminal- und Strafrechtspolitik des 21. Jahrhunderts. Der Blickwinkel eines nordischen Wohlfahrtsstaates und dessen Strafgesetzreformen : Finnland (De Gruyter 2019); and Raimo Lahti, Towards an Efficient, Just and Humane Criminal Justice : Nordic Essays on Criminal Law, Criminology and Criminal Policy 1972–2010 (Publitions of Finnish Lawyers’ Association, Suomalainen lakimiesyhdistys 2021).
2 Raimo Lahti, ‘Life Imprisonment and Other Long-Term Sentences in the Finnish Criminal Justice System: Fluctuations in Penal Policy’ in Khalid Ghanayim and Yuval Shany (eds), The Quest for Core Values in the Application of Legal Norms. Essays in Honor of Mordechai Kremnitzer (Springer 2021) 201.
3 Cf. Raimo Lahti, ‘Towards internationalization and regionalization of criminal policy and criminal justice – the experience of Finland in a Nordic and European context’ in Michiel Luchtman et al. (eds.), Of sords and shields: due process and crime control in times of globalization. Liber amicorum prof. dr. J.A.E. Vervaele (Eleven 2023) 329.
4 As for the UN’s activities in global criminal policy, see esp. Sławomir Marek Redo, Blue Criminology. The power of United Nations ideas to counter crime globally. A monographic study (HEUNI 2012).
5 See, e.g. the example of Finnish-Hungarian scientific co-operation in 1979–2009 and the change of its priorities: Raimo Lahti, ‘From Comparative Criminal Law to the Europeanization and Internationalization of Criminal Law’ in Katalin Ligeti (ed), Homage to Imre A. Wiener (AIDP, Éditions érès 2010) 21 (<http://www.penal.org/sites/default/files/files/NEP%2022.pdf>accessed 26 March 2023).
6 Mireille Delmas-Marty, ‘Comparative Criminal Law as a Necessary Tool for the Application of International Criminal Law’ in Antonio. Cassese (ed), The Oxford Companion to International Criminal Justice (Oxford University Press 2009) 97.
7 See Mireille Delmas-Marty and others, Corpus Juris (Economica 1997); Mireille Delmas-Marty and J. A. E. Vervaele (eds.), The Implementation of the Corpus Juris in the Member States, Vols I–IV (Intersentia 2000–2001).
8 See Klaus Tiedemann (Hrsg.), Wirtschaftsstrafrecht in der Europäischen Union, Köln (Carl Heymanns Verlag 2002).
9 See Bernd Schünemann (Hrsg.), Ein Gesamtkonzept für die europäische Strafrechtspflege (Carl Heymanns Verlag 2006).
10 See European Criminal Policy Initiative‘ (http://www.crimpol.eu); (2009) 12 Zeitschrift für Internationale Strafrechtsdogmatik (ZIS), (2009) 12, 707 (www.zis-online.com). See also ‘The Manifesto on European Criminal Procedure Law’ (first published in ZIS (2013) 16, 412).
11 As for the resolutions of the AIDP, see Jose Luis de la Cuesta, Isidoro Blanco Cordero and Miren Odriozola Gurrutxaga (eds.), Resolutions of the Congresses of the Association Internationale de Droit Pénal (1926–2019). Revue Internationale de Droit Pénal, libri 01 (Maklu 2020).
12 Ulrich Sieber, ‘The Forces Behind the Harmonization of Criminal Law’ in Mireille Delmas-Marty et al. (éds), Les chemins de l’harmonisation pénale. (Paris 2008) 385, 387.
13 See e.g. Neil Bolster, Sabine Gless and Florian Jessberger (eds), Histories of Transnational Criminal Law (Oxford University Press 2021).
14 See e.g. Jaakko Husa, Advanced Introduction to Law and Globalisation (Elgar 2018).
15 Jaakko Husa (n 14) 8.
16 Kimmo Nuotio, ‘From Transnational Law to Global Criminal Law’ in Florian Jessberger et al. (Hrsg.), Strafrecht und Systemunrecht. Festschrift für Gerhard Werle (Mohr Siebeck 2023) 469, 474.
17 See especially Wolfgang Schomburg, ‘The Role of International Criminal Tribunals in Promoting Respect for Fair Trial Rights’ (2009)(8) Northwestern Journal of International Human Rights 1.
18 See UN Doc A/Conf. 183/9, 17 July 1998.
19 See Chapter 11 of the Penal Code, amendment made by Act of 212/2008.
20 Judgment of the Helsinki Court of Appeal, 30 March 2012 (R 10/2555). In more detail, see Minna Kimpimäki, ‘Genocide in Rwanda – Is It Really Finland’s Concern?’ (2011) 11 International Criminal Law Review 155.
21 See André Klip, ‘Preface’ in Renata Barbosa, Francesco Mazzacuva and Megumi Ochi (eds.), Contemporary Challenges and Alternatives to International Criminal Justice (2022) 93 Revue International de Droit Pénal 9.
22 See Jussi Matikkala, ‘Nordic Intent’ in Festschrift in Honour of Raimo Lahti (Forum Iuris 2007） 221.
23 See esp. following publications of the projects: Ulrich Sieber and Karin Cornils (Hrsg.), Nationales Strafrecht in rechtsvergleichender Darstellung. Allgemeiner Teil 1–3 (Berlin, Duncker & Humblot 2008–2009). See also the George P. Fletcher, The Grammar of Criminal Law, Vols I-II. (Oxford University Press 2007, 2020).
24 As for international criminal law, see e-g. Raimo Lahti, ‘Towards Harmonization of the General Principles of International Criminal Law’ in International Criminal Law: Quo Vadis? (AIDP, Éditions érès 2004) 345; reprinted in Lahti (n 1) 306; idem, ‘Memories and personal reflections on M. Cherif Bassiouni’ in J. L. de la Cuesta, R. Ottenhof and J. F. Thony (eds), M. Cherif Bassiouni (1937–2017): Cherif’s Friends. In Memoriam (AIDP, Siracusa 2018) 41.
25 See e.g. Raimo Lahti, ‘The Origin and Development of Quasi-criminal Enforcement Mechanisms in Europe: Nordic Perspective’ in Vanessa Franssen and Christopher Harding (eds), Criminal and Quasi-criminal Enforcement Mechanisms in Europe. Origins, Concepts, Future (Hart Publishing 2022) 11. From a larger perspective, see John A.E. Vervaele, Towards a European Reassessment of Punitive Law Enforcement? (Eleven 2023).
26 COM(2011)573 final.
27 On the relationship between proportionality and social legitimacy, see Emmanouil Billis and others, ‘The Typology of Proportionality’ in Emmanouil Billis et al. (eds), Proportionality in Crime Control and Criminal Justice (Hart Publishing 2021) 3, 11.
28 See Raimo Lahti and Kimmo Nuotio (eds), Criminal Law Theory in Transition. Finnish and Comparative Perspectives; Strafrechtstheorie im Umbruch. Finnische und vergleichende Perspektiven (Finnish Lawyers‘ Publishing Compary 1992) 5.