The Transnational Diffusion of Criminal Prohibitions: Existing Approaches

Much of the literature on the relationship between globalization, crime, and crime control measures is functionalist, depicting the emergence of new instruments for harmonizing criminalization policies as a natural response to changes taking place in the organization of illicit markets (for a critical analysis of this explanatory approach, see Andreas Reference Andreas, Mitsilegas, Alldridge and Cheliotis2015). Processes of globalization have vastly extended and intensified the flow of people, goods, capital, information, and technology across national borders (Held and McGrew Reference Held and McGrew2003). These processes create facilitative conditions for the production, financing, and trafficking of illicit goods and services, including the smuggling of banned commodities (such as drugs, guns, and counterfeit goods), the “laundering” of illegally obtained profits, and clandestine border crossing and exploitation of migrants (Williams and Vlassis 2001; Castells Reference Castells2010, 171–214). From this functionalist perspective, globalization’s criminogenic effects spur political initiatives to harmonize countries’ criminal laws to facilitate interstate cooperation and coordination to combat such crime (Boister Reference Boister2003, 957).

Accounts that focus on the role of large-scale changes in the operation of illicit markets help to illuminate the facilitative circumstances giving rise to new transnational prohibition norms. However, their explanatory power is inevitably partial as long as they fail to analyze the role of micro-level practices of issue-framing and lawmaking in shaping these norms’ content and forms of institutionalization (Christensen and Levi 2017). Such accounts echo a tendency to assume that legal definitions of crime reflect an objective ontological reality rather than contingent outcomes from complex political struggles (Hulsman Reference Hulsman1986; Kotiswaran and Palmer Reference Kotiswaran and Palmer2015, 71).

Theories focusing on the cultural dimensions of globalization offer a partial remedy to this problem because they illuminate how homogenizing cultural trends facilitate shared conceptualizations of the nature of social problems, which underpin the formation of global definitions of criminality. World polity theory (Meyer et al. Reference Meyer, John, Thomas and Ramirez1997) illuminates how the global diffusion of legislative and institutional forms is not necessarily driven by changes in the nature of the behaviors they intend to regulate but, instead, by changes in the cognitive frames through which actors assess the legitimacy of these behaviors. Scholars within this tradition argue that the global diffusion of models of criminal legislation reflects isomorphic trends in which actors in different countries adopt the beliefs and patterns that prevail in the surrounding global environment (Jakobi Reference Jakobi2013). For example, David John Frank and his colleagues (Frank, Wosick-Correa, and Hardinge Reference Frank, Wosick-Correa and Hardinge2009) identify a remarkable worldwide trend in which the definitional scope of the offense of rape has expanded. They explain these findings as a product of the global diffusion of individualistic and dignity-affirming ideological frames and accompanying policy templates.

The theoretical framework developed in this article shares with world polity theory a constructivist sociological orientation that focuses on how actors constitute the meaning of social reality. However, it differs from this theory in two critical ways for developing a sociological understanding of transnational criminalization processes. First, much of the world polity theory literature depicts legal diffusion as a one-step move in which legislative models travel from the center to the periphery of the international system (Halliday and Shaffer 2015, 25). In contrast, the transnational processional (TLO) theoretical framework is premised on a processual sociological approach (Abbott Reference Abbott2016) that depicts criminalization as an ongoing process of negotiating the interpretive meanings of legal norms. As part of this process, domestic actors who institutionalize and apply transnational norms in national and local contexts are able to reformulate these norms’ meaning and affect their regulatory performance. Second, although world polity theory does not predict that states will rigorously implement the global scripts they adopt, it places considerable emphasis on the isomorphic impact of transnational processes of norm diffusion. As a result, world polity theory has relatively little to say about the question of why different states (and different institutional actors within the same state) respond differently to the homogenizing forces that operate in the global environment (Boyle Reference Boyle2002, 99). To answer this question, a transnational processual theoretical framework provides tools to investigate how the institutional positioning, identities, expressive purposes, and differential capacities of the various actors who participate in transnational criminalization processes shape the ways in which they influence outcomes.

It is often observed that the emphasis of world polity theorists on the cultural driving forces of globalization processes cause them to underplay the role played by economic and political power relations in driving the global diffusion of policy templates (Finnemore Reference Finnemore1996). In contrast, work premised on global prohibition regimes theory focuses on how power asymmetries in the international system shape the global diffusion of criminal law (Nadelmann Reference Nadelmann1990; Andreas and Nadelmann Reference Andreas and Nadelmann2006). Global prohibition regimes theory emphasizes the role of powerful states (in particular, the United States) in shaping the international crime control agenda and in inducing states to join international regimes that promote hegemonic models of criminal legislation and policing. It shows how the effort to globalize US-style models of crime control serves as a major driver of change in other countries’ domestic criminal justice policies (Andreas and Nadelmann Reference Andreas and Nadelmann2006, 14).

The transnational processual theoretical framework shares with the global prohibition regimes approach a common interest in studying the power structures underpinning the formation and propagation of prohibition norms. However, as part of a wider effort to go beyond the limitations of regime theory (Halliday and Shaffer 2015, 21–24), we challenge two premises of global prohibition regimes theory. First, we posit that this theory fails to explain the impact of domestic cultural, political, and institutional factors on the interpretation, contestation, and revision of transnational prohibition norms. The global prohibition regimes literature tends to focus on visible indicators of participation in treaty regimes rather than on their highly variable forms of implementation. The transnational processual theoretical framework, in contrast, conceptualizes domestic lawmaking practices as integral components of the recursive processes through which particular interpretations of the scope and meaning of transnational prohibition norms are formed. This approach illuminates the role of bottom-up and horizontal norm-making processes that shape the development of transnational criminalization, an issue conspicuously understudied in the global prohibition regimes literature.

Second, like much of the international relations scholarship analyzing the formation of legal instruments promoting international cooperation against criminal activities (for example, Gardner Reference Gardner2015), global prohibition regime theory is state-centric, and it tends to conceptualize states as unitary actors. The transnational processual theoretical framework, in contrast, disaggregates the state (Shaffer and Halliday Reference Shaffer, Halliday and Zumbansenforthcoming). It assesses how complex dynamics of cooperation and competition between different domestic governmental and civil society actors seeking to promote different professional and political interests shape the formation and implementation of state policies. This emphasis on the disaggregated nature of the state sheds light on important sociolegal dimensions of criminalization processes. For example, it enables one to investigate how the policy scripts promoted by the United States and other powerful states are shaped by struggles between domestic interest groups within those countries, and how the efforts to implement these policy scripts in different national and local contexts, in turn, are facilitated and hindered by domestic actors serving as intermediaries between global and domestic lawmaking processes (Carruthers and Halliday Reference Carruthers and Halliday2006; Merry Reference Merry2006a). This aspect of transnational processual theory helps to examine dimensions of power overlooked by competing theoretical approaches (Cotterrell Reference Cotterrell2012, 520–21). Whereas global prohibition regime theory ultimately focuses on a single macro concept of power (the capacity of powerful states to coerce weaker ones to join crime suppression treaties and comply with them), transnational processual theory provides a framework for investigating the relationship between different modalities of power in shaping the meanings of globalized prohibition norms (including the agenda-setting capacities of professional experts and activists, and the power of transnational norms to shape the legal consciousness of actors, including those who wield lawmaking powers within states) (Barnett and Duvall Reference Barnett and Duvall2005).

Outline of a Processual Theory of Transnational Criminalization Processes

A major goal of this article is to improve understanding of how recursive interactions between actors operating in international, national, and local sites of criminal lawmaking shape criminal prohibitions. Our starting point is to show how sociolegal work on the recursivity of legal change (Halliday and Carruthers Reference Halliday2007a; Halliday Reference Halliday2009; Liu and Halliday Reference Liu and Halliday2009) helps to illuminate the nature of the relationship between lawmaking processes taking place at these levels. Halliday and Carruthers (Reference Halliday2007a) identify four mechanisms that drive recursive lawmaking processes: diagnostic struggles in which actors promote competing conceptualizations of the nature of a social problem, the indeterminacy of the legal norms adopted to address the problem, the contradictions that the texts may contain, and the mismatch between the actors formulating transnational norms and the actors who implement them in domestic settings. Transnational processual theory assesses how these mechanisms of recursive legal change affect criminalization. It explains how prohibition norms become embedded in transnational scripts and how these norms are contested and adapted across different sites of transnational and domestic lawmaking.

Within the tradition of social constructivist scholarship on the role of framing in shaping problem definition, causal interpretation, and policy recommendation (Goffman Reference Goffman1974; Benford and Snow Reference Benford and Snow2000), the concept of diagnostic struggles highlights the role of conflicts regarding the nature and causes of a perceived social problem in shaping the form and content of legal norms and implementation mechanisms to govern the problem (Halliday Reference Halliday2009, 278–279; Liu Reference Liu2013, 674–76). The transnational processual theoretical framework delineated in this article employs the concept of diagnostic struggles to assess how contests over the labeling of certain types of human conduct as criminal shape the scope and meaning of transnational prohibition norms in international, national, and local sites of criminal lawmaking and practice. In the next sections, we consider how the unique challenges of resolving moral and empirical debates underpinning the labeling of conduct as criminal impede concordance in the ways in which actors interpret and implement prohibition norms across legal systems.

Transnational criminalization processes involve two types of diagnostic struggles: internal and external. Internal diagnostic struggles are conducted between actors who support the use of criminal law to address a social problem while disagreeing on how to delineate the criminal prohibition’s scope of application. For example, during the negotiations of the Protocol to Prevent, Suppress and Punish Trafficking in Persons (commonly known as the Palermo Protocol), the effort to craft an internationally accepted definition of the offense of human trafficking became a battlefield between competing camps of norm entrepreneurs promoting contradictory conceptualizations of the nature of prostitution/sex work (Gallagher Reference Gallagher2001; Chuang 2010; Nelken 2013). On one side, a coalition of neo-abolitionist activists sought to shape the treaty in accordance with a diagnostic frame that construes prostitution as inherently exploitative and degrading, a form of violence against women that must be abolished (MacKinnon Reference MacKinnon1993). This coalition sought to capitalize on the image of UN treaties as symbols of international consensus to reinforce the legitimacy of a diagnostic frame that classifies all forms of prostitution as crimes and denies the existence of meaningful distinctions between “forced” and “voluntary” forms of commercial sex. On the other side, critics of the neo-abolitionist paradigm promoted a diagnostic frame that emphasizes sex workers’ agency and justifies criminalization only for those situations in which commercial sex acts are induced by force, fraud, or coercion (Chuang 2010, 1670–71). As is often the case, the offense definition that the Palermo Protocol eventually codified reflects a compromise between these two camps by using ambiguous legal concepts that gloss over ideological disagreements underlying the diagnostic struggle. On the one hand, the Protocol’s definition of the trafficking offense refers to “exploitation of the prostitution of others” and “other forms of sexual exploitation”; on the other hand, it purposely leaves the concepts of “exploitation” and “consent” undefined, thus granting national lawmakers discretion in accordance with domestic preferences regarding the governance of prostitution/sex work.

From the viewpoint of transnational processual theory, the mechanisms that drive recursive processes (diagnostic struggles, actor mismatch, ideological contradictions, and textual indeterminacy) interact. Diagnostic struggles, for example, can give rise to compromises that, in turn, are reflected in textual indeterminacies and contradictions. These textual indeterminacies and contradictions, in turn, provide tools that actors can exploit at the time of domestic implementation and practice. They similarly can restimulate diagnostic struggles over the nature of the targeted problem to be addressed.

Unlike a sizable body of literature examining the strategic advantages that norm entrepreneurs gain by choosing particular forms and institutional venues of transnational lawmaking (for example, Abbott Reference Abbott2001), the processual approach opens inquiry regarding how initial successes in shaping the content of treaties and soft law instruments may erode over time through transnational and domestic practices of norm contestation (Weiner Reference Weiner2018). Even when an international treaty reflects the normative propositions of a particular diagnostic frame, competing conceptualizations of the nature of the problem can affect how the treaty norms are interpreted and applied (Kotiswaran and Palmer Reference Kotiswaran and Palmer2015, 60–62). In some cases, the persistence of diagnostic struggles may erode transnational prohibition norms that appeared to be settled following the conclusion of a crime suppression treaty, such as when local actors harness textual indeterminacies.

For example, the question of whether legal definitions of crimes against humanity should cover the activities of corporations has been the subject of a long controversy dating back to the Nuremburg trials (Bush Reference Bush2009). During the negotiations of the Rome Statute, the idea of authorizing the International Criminal Court (ICC) to pursue criminal charges directly against corporations was rejected on a number of conceptual and practical grounds (Kaleck and Saage-Maass Reference Kaleck and Saage-Maass2010). However, diagnostic struggles over whether to interpret the prohibitions codified in the Rome Statute in ways that apply to the activities of multinational corporations persist in a variety of transnational and domestic contexts. In the wake of public debates over the involvement of multinational corporations in war zones and conflict areas and their role in facilitating state-sponsored human rights violations and large-scale environmental hazards to human health, international and regional lawmakers are increasingly adopting policy scripts that urge national lawmakers to expand domestic statutory definitions of corporate liability. In 2016, the European Parliament issued a resolution calling on European Union (EU) member states to enact criminal liability for corporate actions that constitute serious human rights abuses.Footnote ³ In the same year, the Office of the Prosecutor of the ICC declared that it “will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispassion of land” (Office of the Prosecutor of the International Criminal Court 2016, 5). These policy prescriptions have stimulated national prosecutors and courts to adopt more expansive definitions of atrocity crimes (Cryer, Robinson, and Vasiliev Reference Cryer, Robinson and Vasiliev2017, 73). Although the bulk of existing research on the construction of atrocity crimes focuses predominantly on actors operating at the international level, the transnational processual theoretical framework illuminates how domestic implementation practices can spur recursive processes affecting the meaning of these norms. Recent proposals to include new norms of criminalizing corporate activities in the UN-backed treaty on Business and Human Rights (Darcy Reference Darcy, Deva and Bilchitz2017) illustrate this recursive path of transnational lawmaking.

A second type of diagnostic struggle shaping the contours of transnational criminalization processes involves disagreements over whether a social problem should be addressed through criminal law measures or alternative policies. These external diagnostic struggles bring norm entrepreneurs advocating the creation of new criminal prohibitions into conflict with actors who highlight the counterproductive impacts that criminalization often engenders, including the creation of black markets, the strengthening of criminal organizations, and the displacement of regulatory frameworks for tackling the root economic and social causes of the targeted activities (Naylor Reference Naylor2002; Bowling Reference Bowling, Bosworth and Hoyle2011). In this context, too, the transnational processual approach emphasizes how such contests affect not only the production of transnational prohibition norms but also subsequent stages of implementing them.

For example, advocates have debated whether the personal use of cannabis should be criminalized since at least the late nineteenth century (Shamir and Hacker Reference Shamir and Hacker2001). Throughout the second half of the twentieth century, war-on-drugs crusaders initiated three widely ratified UN drug control conventions firmly grounded in a prohibitionist diagnostic frame. The preamble to the Single Convention on Narcotic Drugs (1961) exemplifies this frame, declaring: “[A]ddiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind.” However, the proposition that the personal use of drugs—and most notably, cannabis—should be treated as a punishable offense remained contested in many countries (Bewley-Taylor Reference Bewley-Taylor2012). Over time, such contestation catalyzed national and local legal reforms, eroding the prohibitionist norms that appeared to be settled at the international level (Aaronson 2019). Some countries retained the statutory prohibition on the possession of cannabis while initiating implementation policies that use civil rather than penal measures of enforcement (Ibid 90–91). Other countries introduced statutory reforms decriminalizing or legalizing medical or recreational uses of the drug (Laqueur Reference Laqueur2015). Recently, this emergent trend of domestic cannabis liberalization reforms led actors in the international drug control system—such as the World Health Organization and the United Nations Office on Drugs and Crime—to revise their long-standing policy positions and support harm reduction principles. As this example demonstrates, ongoing diagnostic struggles about whether a formally prohibited conduct deserves to be treated as a crime (with all the moral baggage that such a label entails) trigger changes in the scope and meaning of transnational prohibition norms. Horizontal and bottom-up norm-making processes, in which domestic actors import legal definitions from other jurisdictions and promote norm-diffusion trends, stimulate international lawmakers to revise earlier conceptualizations of the nature of the targeted social problem.

Transnational recursivity theory urges examination of how pressures to manage the uncertainties that arise from the indeterminacy and contradictions of legal texts catalyze the production of new legal rules, standards, and institutional arrangements (Halliday Reference Halliday2009, 281–82). This approach provides new understanding of the age-old social legal phenomenon of the gap between the law on the books and the law in action (Gould and Barclay Reference Gould and Barclay2012, 331–34) by showing the mechanisms through which the law in action can reshape the law in the books. We follow this line of inquiry by considering how disagreements regarding the implementation of transnational prohibition norms generate new episodes of criminal lawmaking at the transnational, national, and local levels. This focus allows us to place the conceptual tool of actor mismatch on the research agenda of the sociology of criminalization. The concept of actor mismatch directs attention to the difficulty of achieving concordance in the interpretation of a legal norm in international, national, and local settings because of the divergent interests and values of the relevant actors wielding lawmaking power at each level (Halliday and Carruthers Reference Halliday2007a, 1152–53; Halliday Reference Halliday2009, 277–78). The actors who play pivotal roles in setting the agenda of treaty negotiations and drafting treaty norms do not necessarily share the interests and values of actors wielding norm-making power in other sites of transnational lawmaking, such as at the levels of national enactment and local practice. The policy preferences of domestic actors who have the capacity to facilitate or resist the implementation of transnational prohibition norms are often marginalized in international lawmaking forums. As a result, these actors may interpret and apply prohibition norms in ways that are inconsistent with their settled meaning at the international level. Indeterminacies and ideological tensions within international legal texts, such as a result of compromise, facilitate their ability to do so.

In this light, the transnational processual theoretical framework shows how domestic lawmaking and implementation affect the meaning of prohibition norms at the international level. The conclusions of crime suppression treaties often stimulate actors operating under the auspices of international organizations, the US State Department, and the European Commission, among others, to create new legal ordering instruments to guide national implementation. Instruments such as prescriptive indicators and model laws are integral components of ongoing processes of negotiating, adapting, and contesting transnational prohibition norms (Merry, Davis, and Kingsbury Reference Merry, Davis and Kingsbury2015). The transnational processual approach calls for investigation of the techniques that powerful national governments and international organizations use to overcome some of the barriers posed by consent-based procedures of formal international lawmaking (Krisch Reference Krisch2014) in order to establish standards of criminalization that are stricter than those agreed upon during the formation of international crime conventions. It also foregrounds how these powerful governments and international organizations may frame their policies through interactions with domestic stakeholders and transnational professional and political actors who promote competing agendas. As we demonstrate below, through utilizing the concept of actor mismatch to analyze the interactions between different actors wielding influence in transnational criminal lawmaking processes, the transnational processual framework offers a more nuanced, multifaceted account of the modalities of power underpinning the formation of transnational prohibition norms. Such an account integrates analysis of the influence that powerful states and international organizations wield in these processes with analysis of the agenda-setting power of domestic constituencies and transnational private stakeholders that implicate the strategies and positions of such powerful states and international organizations. In other words, weaker actors can shape the construction of the strategies of more powerful actors.

The concept of actor mismatch is also helpful in illuminating how interactions between legislatures, judges, and law enforcement officials within national legal systems recursively shape the meaning of transnational prohibition norms. Recent strands in the sociology of criminalization emphasize how decisions about whether or not to label behaviors as crimes are taken across a variety of institutional domains within the state (Stuntz Reference Stuntz2001; Lacey 2009). Domestic criminalization processes involve complex interactions between diverse actors wielding different forms of lawmaking power. These actors include legislatures who formulate statutory definitions of criminal prohibitions, police officers and prosecutors who decide whether specific behaviors that potentially violate these statutory prohibitions pass the threshold of social disapproval justifying the initiation of criminal investigations and charges, and judges who interpret and apply statutory criminal prohibitions in light of broader constitutional and doctrinal principles (Duff et al. Reference Duff, Lindsay, Sandra Marshall, Tadros, Duff, Farmer, Marshall, Renzo and Tadros2014, 11). Extant theories of the construction of international and transnational crimes focus on lawmaking processes that occur beyond the state. These theories overlook the ways in which interpretive disagreements between state actors who form part of the overall legal complex within a state (Karpik and Halliday Reference Karpik and Halliday2011) shape the implementation of transnational prohibition norms. The transnational processual theoretical framework, in contrast, acknowledges that such disagreements emanate from structures underlying interinstitutional frictions—most notably, the fact that legislatures, police officers, prosecutors, and judges differ from one another in terms of their professional backgrounds, their organizational interests, their degrees of susceptibility to pressure from domestic interest groups, and the strength of their ties with transnational actors (Stuntz Reference Stuntz2001; Yoo and Boyle Reference Yoo and Boyle2015). In light of the indeterminacy of transnational prohibition norms and the ideological contradictions they often contain, we predict that these actors are likely to adopt divergent interpretations of the scope and meaning of prohibition norms. The transnational processual theoretical framework assesses the conditions under which the interpretive constructions of different state actors converge, leading to normative settlement (Grattet, Jenness, and Curry Reference Grattet, Jenness and Curry1998). As we demonstrate below, when these interpretive practices are out of sync, these norms are less likely to achieve their promoters’ regulatory goals.

The transnational processual theoretical framework enables criminalization scholars to attend to the methodological challenge encapsulated in Saskia Sassen’s (Reference Sassen, Seddon and Levin2013, 30) observation that “the global—whether an institution, a process, a discursive practice or an imagery—both transcends the exclusive framing of national states and partly emerges and operates within that framing.” In the next section, we apply this theoretical framework to offer a new interpretation of how the construction of prohibition norms transcends the boundaries of nation-states. The ensuing sections then apply this framework to analyze how the meaning of prohibition norms is reconstituted over time, including through developments within national and local contexts.

Toward a Processual Theory of the Construction of Prohibition Norms Beyond the State

The number of multilateral treaties formalizing duties to criminalize acts, the range of issues covered by these treaties, and the variety of actors participating in their formation have significantly increased in recent decades (Boister 2012, 13). Soft law instruments and transnational governance tools establishing global standards of criminal lawmaking have proliferated in parallel (Andreas and Nadelmann Reference Andreas and Nadelmann2006, 5). In this section, we summarize these trends and reflect on the theoretical challenges they pose for the sociology of criminalization. We demonstrate how the theory of transnational criminalization processes outlined in the previous section improves our understanding of the various dimensions of the processes through which prohibition norms emerge and institutionalize beyond the national level.

Treaty-Making Processes and the Construction of Transnational Prohibition Norms

In the final decades of the twentieth century, states increasingly used multilateral treaties to formalize transnational prohibition norms, shadowing earlier efforts during the League of Nations era to address transnational crimes such as “white slavery,” “anarchist terrorism,” and drug trafficking (Knepper Reference Knepper2010). Between 1988 and 2003, in what was a historic high point of treaty-making to address crimes of international concern, states concluded eight multilateral treaties, which involved the vast majority of states. As Table 1 shows, these treaties established international criminalization duties in areas ranging from corruption and human trafficking to terrorism finance and war crimes.

Table 1. Crime Suppression Treaties with Broad (100+) International Membership, 1988–2003

In parallel, other international treaties included criminalization duties as part of their enforcement tools to address their issues. For example, the Agreement on Trade-Related Aspects of International Property Rights (TRIPS) obliges all 162 members of the World Trade Organization (WTO) to “provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyrights piracy on a commercial scale.” Regional treaties also increasingly include duties to criminalize certain behaviors. Of the fifty-four member countries in the African Union, forty-nine signed the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, which requires criminalizing female genital cutting. The European Union and the Council of Europe have devised treaty instruments and other legal tools (such as directives and framework decisions) to commit member states to criminalize activities regarding human trafficking, terrorism, cybercrime, corruption, immigration, money laundering, counterfeiting, and electronic payment fraud (Mitsilegas Reference Mitsilegas, Mitsilegas, Alldridge and Cheliotis2015).

Despite the increased use of treaties to create criminalization duties, the sociology of criminalization has not developed systematic tools to assess how treaty norms shape domestic criminal law. We posit that a key to understanding the distinctive role played by treaty norms in this context lies in their operation as iconic symbols of international consensus. Unlike other processes of transnational lawmaking, treaty-making processes require the formal expression of consent by a large number of national governments. This distinctive feature enables norm entrepreneurs that are capable of exerting influence over the formulation of treaty norms to enhance the legitimacy of diagnostic frames labeling particular activities as crimes. In particular, UN crime suppression treaties provide a powerful symbolic representation of the universal moral validity of the prohibition norms they establish, exemplifying what Inis Claude famously conceptualized as the “collective legitimizing function” of the UN system (Claude Reference Claude1988, 45). “While the voice of the United Nations may not be the authentic voice of mankind,” he observed, “its status as an institution approximating universality gives it obvious advantages for playing the role of the custodian of the seals of international approval or disapproval” (150). Although the UN’s image as a benevolent organization has become increasingly contested in recent years, its ethos of commitment to the principle of sovereign equality helps to portray the treaty norms agreed upon under its auspices as transcending the parochial interests of individual states (Walker Reference Walker2014, 61–63).

We posit that the role of treaties within transnational criminalization processes should be analyzed, in part, within a two-level game perspective (Putnam 1988), although our focus on the recursivity of law extends well beyond conventional two-level game theory. The two-level game approach considers, on the one hand, how powerful states shape a treaty’s negotiated outcomes, and, on the other hand, how private stakeholders and norm entrepreneurs shape the policy preferences of these states. This perspective improves understanding of the variable forms of power that drive transnational criminalization processes. For example, studies of the formation of transnational prohibition norms governing the criminalization of intellectual property rights (IPR) violations often focus on the role of power asymmetries between states that enable advanced industrialized countries to promote the global diffusion of restrictive models of criminal legislation in this field (Drezner Reference Drezner2007). A two-level framework calls attention to how domestic political actors shape the policies adopted by these national governments. As has been well documented, American business elites lobbied the US Congress to introduce federal legislation threatening the imposition of trade sanctions on foreign countries that failed to comply with specified IPR standards. That action was an integral component of the transnational legal process leading to the global diffusion of the criminalization of trademark counterfeiting and copyright piracy (Sell Reference Sell2003). Likewise, business elites in advanced industrialized countries successfully pressed their governments to prioritize the criminalization of IPR violations in the negotiations of the agreements leading to the formation of the WTO, including the TRIPS agreement. In doing so, they sought to transform the social meanings of these activities, including in countries where IPR violations were not previously considered to be criminal. These campaigns sought to capitalize on the moralizing function of criminal law (Durkheim 1960) and catalyze a normative change in which issues that were once perceived as matters of legitimate cross-national variation in policy preferences—a reflection of diverging traditions of thinking about the degree of copyright protection that should be granted to artistic and scientific works (Alford Reference Alford1997)—would be reframed as departures from the collective values of the international community.

As this example shows, although the inclusion of criminalization duties in widely ratified multilateral treaties creates a powerful symbol of broad international consensus regarding certain conduct, this technique of formalizing prohibition norms in treaties can heavily rely on coercive strategies (Efrat Reference Efrat2012, 51–53). National governments of weaker states endorsing such treaty commitments are often motivated by non-crime-related instrumental economic and reputational incentives (Broude and Teichman Reference Broude and Teichman2009, 843–44). The increasing use of treaty instruments to harmonize national criminalization policies since the 1980s has harnessed issue-linkage strategies that make access to trade and aid conditional on states’ willingness to ratify international conventions. The United States and the European Union, due to the size of their domestic markets and their disproportionate influence on aid allocation, use these mechanisms by promising to open (or threatening to close) their domestic markets to foreign goods and by withholding aid from countries that refuse to commit to criminalizing certain behaviors (Hafner-Burton Reference Hafner-Burton2009; Bradford Reference Bradford2020). The transnational processual framework provides a distinctive lens for analyzing the consequences of these coercive techniques because it examines how the legitimacy deficits of treaty-making processes affect the ways in which norms are implemented in national and local settings. As we demonstrate below, the reliance on coercive issue-linkage strategies can compromise the ability of crime suppression treaties to change the normative frames through which domestic legal actors implement them in everyday settings.

Because treaties are designed to facilitate consensus across a broad spectrum of states that differ in their penal standards and constitutional structures, the texts often employ open-ended language and reflect contradictory ideological positions. Legal recursivity theory calls attention to ensuing dynamics neglected by mainstream international law scholarship. It posits that the very same feature that is usually identified as a cause of the weak direct influence of treaties on state behavior—namely, their limited capacity to set precise and enforceable obligations (Hathaway Reference Hathaway2002)—can produce significant indirect influences by catalyzing new cycles of transnational lawmaking intended to resolve interpretive disagreements about the appropriate forms of implementing these obligations.

Toward a Processual Theory of the Domestic Construction of Transnational Prohibition Norms

As we noted earlier, an extensive body of literature tends to assume that states’ geopolitical positioning and situational vulnerability to pressure from powerful countries and international organizations predominantly shapes participation in “global prohibition regimes” and regime outcomes (Nadelmann Reference Nadelmann1990). Such approaches, however, fail to consider how the indeterminacy and contradictions of legal texts enable national lawmakers to choose from among several options and foil powerful actors (Halliday and Carruthers Reference Halliday, Carruthers, Gessner and Antons2007b). Transnational processual (TLO) theory, in contrast, proceeds from the premise that transnational legal norms are prone to containing ambiguous legal concepts as well as contradictory ideological elements (Halliday Reference Halliday2009, 280–82). Consequently, the transnational diffusion of prohibition norms provides domestic actors with considerable leeway to design models of implementation that reflect their interests and values. The new legal meanings constituted through these practices of translating global prohibition norms into local vernaculars (Merry 2006b) sometimes reinforce and sometimes deviate from the settled interpretations of these norms at the international level. In some cases, domestic acts of implementing transnational scripts of criminalization generate new processes of horizontal and bottom-up norm diffusion by providing models that lawmakers in other countries borrow and imitate (Halliday and Shaffer 2015, 60).

Rethinking the Impact of Transnational Criminalization Processes

The preceding analysis has offered a new way of analyzing the formation, diffusion, implementation, and contestation of transnational prohibition norms under conditions of globalization. We identified a variety of strategies employed by transnational actors to harmonize criminal laws across jurisdictions. Many of these strategies enable powerful countries and international organizations (and, by extension, private constituencies that influence them) to deploy political and economic leverage to shape the direction of transnational criminalization processes. The transnational processual (TLO) approach, however, shows how the inevitable indeterminacy of prohibition norms, the contradictions they contain, the persistence of diagnostic struggles between competing frames for conceptualizing the targeted social problems, and the mismatch between the actors who craft prohibition norms in international lawmaking bodies and the actors who implement them in national and local contexts compromise the ability of powerful states to shape criminalization outcomes. What seems at first a triumph of powerful countries promoting the global diffusion of their preferred models of criminal legislation (McLeod Reference McLeod2010) stimulates lawmaking processes in unforeseen directions.

In contrast with theories that interpret the diffusion of prohibition norms as constituted by episodes of “global lawmaking from above,” the transnational processual theoretical framework links macro-level processes of producing transnational norms with micro-level processes that shape their social meanings. In some cases, international pressures to implement global scripts of criminal legislation coincide with domestic cultural pressures to internalize the normative rationales expressed in these scripts into the daily practices of law enforcement agencies. In other cases, however, the contested legitimacy of the transnational legal ordering measures deployed to induce national legislatures to adopt prescribed definitions of transnational crimes may impede the normative internalization of these laws and spur domestic actors to develop tactics of resistance. It is thus wrong to assume that cross-national convergence of statutory definitions of crimes that enact international legal norms will catalyze a high degree of isomorphism in the everyday meanings of such offenses as reflected in practice (cf. Langer Reference Langer2004; Lacey 2008). As Pierre Legrand (Reference Legrand1997, 15) notes, “the meaning of a rule is not entirely supplied by the rule itself … meaning is also—and perhaps mostly—a function of the application of the rule by its interpreter, of the concretization or instantiation in the events the rule is meant to govern.” Such practices of translating the meaning of prohibition norms into domestic vernaculars shape the impact of these norms, potentially compromising their ability to achieve their advocates’ goals.

By providing tools for systematic empirical investigation of the conditions that facilitate and hinder the concordance of prohibition norms across levels of government (from the international to the local), the processual theoretical framework raises questions about whether the means currently used to assess the impact of international instruments on domestic criminalization are capable of identifying the discordance between formal definitions of crime and their everyday implementation. Transnational criminalization processes often generate not only legislative outputs but also governance tools that measure the degree to which domestic policies comply with specified policy prescriptions (Merry 2016). Such governance tools tend to mainly observe changes in the formal laws and institutional design structures of national legal systems rather than the impact of such changes on domestic practice and the actual incidence of criminalized behavior. As David Nelken (2015, 39) observes, “[m]any indicators are set up to measure what can most easily be measured, irrespective of whether or not this gets at the heart of the problem.” The failure of these instruments to penetrate beneath the surface of formal criminal prohibitions, in particular, reflects inherent methodological difficulties to accumulate and interpret data on changes in the incidence of illegal, clandestine activities (Andreas and Greenhill Reference Andreas, Greenhill, Andreas and Kelly2010). These governance instruments, while not resolving uncertainty regarding the “dark figure of crime,” may nonetheless encourage national governments to adopt strategies of symbolic compliance that use treaty ratification and formal legislation to reap “rewards for positions rather than for effects” (Hathaway Reference Hathaway2002, 2007).

From this vantage, the success of transnational criminalization processes in catalyzing the diffusion of criminal prohibitions may mask the persistent failure of states and international organizations to develop effective tools to address the root causes of the harmful activities being criminalized. In a scholarly tradition going back to Karl Marx’s (1992) discussion of how the Factory Acts perpetuated the exploitative conditions inherent in the labor structures of early English industrial capitalism, critical strands in the sociology of criminalization have long observed that the introduction of criminal prohibitions targeting isolated symptoms of broader systems of exploitation can serve to disguise a lack of political will to dismantle the systemic conditions producing the harmful behaviors (Aaronson Reference Aaronson2014). Transnational criminalization processes perform ideological functions in a period characterized by the global spread of economic policies that have led to growing inequality around the world. Consider, for example, the ideological dimension of the global spread of antitrafficking laws. The exploitation of migrant workers is shaped by structural conditions of extreme poverty in migrants’ countries of origin and by the demand for cheap labor in destination countries (Kotiswaran 2017). To significantly reduce the incidence of human trafficking, the international community could prioritize transnational mechanisms that address various root causes, including the direct and indirect integration of forced and exploited labor into transnational production, destination countries’ inadequate regulation of sex service industries, and the intensification of migrants’ vulnerability to exploitation by harsh immigration policies. The success of norm entrepreneurs in placing antitrafficking criminal legislation at the center of the global policy agenda illustrates the double-edged consequences that transnational criminalization processes produce. While the emphasis on criminal legislation motivated national governments to pass and enforce laws against forms of exploitation that might otherwise have remained overlooked, it also enabled them to gain reputational points for their antitrafficking efforts, even when their efforts do little to address underlying causes.

This reading challenges a conventional triumphalist narrative that presumes the power of liberal internationalism to construct shared sentiments of moral condemnation across countries and regions (Sikkink Reference Sikkink2011). An alternative narrative suggests that the willingness to condemn and penalize behavioral symptoms at times involves symbolic compensation for the diminishing capacities and will of governments to tackle underlying causes (Bauman Reference Bauman, Garland and Sparks2000). Samuel Moyn, for example, observes similar dynamics in transnational criminalization processes shaping the legal definitions of war crimes. He traces how norm cascades to criminalize the humanitarian excesses of warfare, which the anti-impunity movement unleashed in the post-1980s, have eroded the principle that “war as a general phenomenon, not its cruelties alone, deserves most opprobrium” (Moyn Reference Moyn, Heller, Mégret, Nouwen and Robinson2020, 342). The activism that deploys criminal law to ensure morally tolerable conduct in warfare, in other words, has displaced ambitious visions of criminalizing the initiation of violent conflict. Where efforts to eliminate the root causes of international and transnational crimes do not accompany transnational criminalization processes, the success of these processes in initiating global waves of legal reform can obscure states’ persistent failure to address the structural problems underpinning the crimes.