Criminal law has long provided a site for understanding how a state governs or, as Max Weber would say, “organizes domination.”Footnote ¹ Transnational Legal Ordering of Criminal Justice offers a unique contribution to understanding how criminal law enables governance across states. Edited by Gregory Shaffer, Chancellor's Professor of Law and Political Science at the University of California, Irvine, and Ely Aaronson, associate professor in law at the University of Haifa, this well-crafted collection brings together the flow of influential ideas on how and why criminal law crosses national borders. Read together, the eleven chapters examine a diverse set of actors involved in transnational criminal justice—or to use the editors’ phrase, it places states in their “wider ecology of national and global lawmaking” (p. 10)—established to respond to criminal activities that have actual or potential transboundary effects.Footnote ² In doing so, the book draws our attention to the recursive relationship among international, regional, national, and local lawmaking and offers a detailed and empirically rich set of case studies in a range of substantive areas, including human trafficking, money laundering, drug control, and international crimes.

The collection builds on Terence C. Halliday and Shaffer's earlier work on transnational legal orders (TLOs).Footnote ³ In line with this work, TLOs are defined as a “collection of formalized legal norms and associated organizations and actors that authoritatively order the understanding and practice of law across national jurisdictions” (p. 123, quotation omitted). Each of the chapters skillfully deploys TLOs as a theoretical framework to draw our attention to the formation, institutionalization, normative settlement, concordance, and indeed decline or inertia of transnational criminal justice regimes. In their chapter on the influence of the United Nations Universal Periodic Review on state responses to sexual violence, Ron Levi and Ioana Sendroiu state that “research on transnational legal orders provides a fundamentally global approach to understanding legal change” (p. 333). Prompted by this insight, this review focuses on this picture of global legal change. In particular, I read Transnational Legal Ordering of Criminal Justice in an effort to identify the sites where transnational criminal lawmaking is happening: temporally, geopolitically, and substantively. It is in making visible these legal coordinates that Shaffer and Aaronson's book offers groundbreaking insights into the current role of criminal law in transnational governance.

One of the book's many strengths lies in the breadth, depth, and empirical rigor of its case studies, showing us what robust sociolegal work can bring to the study of international law. In the opening chapter, the editors organize the ten case studies into three categories: first, criminal activities that have transboundary impacts, including anti-corruption measures, drug control, money laundering, human trafficking, and immigration offenses; second, those promoting the implementation of anti-impunity norms through international criminal law, looking closely at situations in Sudan and Colombia; and, finally, those aimed at abolishing or restraining the use of repressive penal and policing practices, with a focus on prison standards, human rights review mechanisms and death penalty abolition. These three types of criminal justice TLOs are seen by Shaffer and Aaronson as distinct, and their opening chapter undertakes a comparative analysis of the similarities and differences among these legal orders. This is outlined in a detailed table that compares the facilitating circumstances of the formation of criminal justice TLOs, the major actors involved in their formation, the vehicles for norm settlement, and the factors explaining a TLO's curtailment or decline. Yet the animating idea in the collection as a whole is what happens when we start to look at the operation of transnational criminal justice in its entirety, bridging the rather artificial bracketing of international criminal law from transnational criminal law.

In the interests of traversing these boundaries, this review looks across the book's three categories by examining the temporal, substantive, and geopolitical coordinates of these TLOs. To do so, first, this review draws attention to a shared temporal movement that all of the contributors to the collection use as a common point of reference across a range of substantive conduct. This reference point focuses on where criminal law operates as a form of transnational governance under the conditions of our most recent wave of globalization or what we might term “late modern capitalism.” Second, the review explores the substantive conduct that these transnational orders of criminal justice address through the control of movement of goods, people, capital, and information while focusing on states, groups, and individuals classified as vulnerable. Finally, in tracking the geopolitical coordinates of where this law is developed and applied, what we see is a picture of “governing the Global South.” This governance is characterized by the recursive relationships that TLO theory helps to illuminate and is sensitive to other possible framings and responses to the same social phenomena. Recognizing these criminal justice coordinates, made visible through transnational legal theory, prompts us to think about what colonial criminal law and the longer recursive relationship among national, local, and international lawmaking would bring to this discussion.

On temporality, transnational legal ordering as a theoretical idea is sensitive to change over time. It offers a way to start to identify how normative orders are formed and institutionalized, paying particular attention to the degree to which the settled meanings of a norm at the international, national, and local levels converge. Shaffer and Aaronson's selection of chapters and their careful editorial guidance means that each of the chapters offers this temporal description. In doing so, when looking across these contributions, we see striking convergence in temporal moments. It is a convergence to which the editors are well attuned at the national level, noting that these transnational legal developments are occurring at a time where there is “a trend in many countries from welfare-oriented to punitive-focused strategies of social governance . . . that resonate with (and can reinforce) neoliberal thinking about the role of the state and its priorities over social and penal programs” (p. 24). Across the chapters, the global force of this temporal moment becomes increasingly apparent. The contributing authors show us not only how states use criminal law to govern within their borders, but how states are using criminal law to govern outside of these borders and the role of international law in this governing enterprise.

In their chapter on anti-money laundering, Halliday, Michael Levi, and Peter Reuter note that this TLO, which has adjusted to frame itself as a suitable means to combat the drug trade, organized crime, domestic terrorism, and the financing of nuclear proliferation, really “gathered momentum in the later 1980s and early 1990s” (p. 54). The authors show how this TLO draws on a wide variety of control mechanisms, including the use of mutual evaluation reports coupled with blacklisting by the International Cooperation Review Group and the “de-risking” activities of individual banks that discontinue relationships with customers deemed at high risk of transferring illicit funds. The authors argue that the resultant anti-money laundering TLO, while failing to have any major impact on the movement of dirty money around the world, helps to establish an understanding that this flow of money destabilizes global financial markets, which were rapidly expanded during the 1990s and 2000s when this TLO emerged and was institutionalized. In creating such an understanding, one might add that this TLO helps shift attention away from the inherent instability in these markets, most starkly evident in the 2008 financial crisis.

Tracking a similar period, Vanessa Barker highlights how, from 2015 to 2017, the European Union (EU) ordered more than 1.5 million non-EU citizens to leave the EU. In doing so, she places the discussion of the formation of this criminalized immigration TLO at a historical juncture in which “EU solidarity is based on externally oriented repression rather than on more liberating norms and values” (p. 164). Her chapter shows how this temporal moment has seen a paradigm shift where asylum seeking is framed as a criminal threat rather than a human rights issue.

In her chapter on human trafficking, Prabha Kotiswaran demonstrates the strength of tracking the temporal changes in the framing of TLOs. She shows how a human trafficking TLO gained early momentum in 2000 and was framed strongly as a human rights issue that warranted a criminal law response. By 2007, however, there was “consensus that the conceptualization and implementation of the Trafficking Protocol was over-inclusive in targeting coerced and voluntary sex workers and that it was under-inclusive in addressing the labor exploitation of millions of workers” (p. 131). Kotiswaran then shows how including the full spectrum of labor exploitation in the remit of the criminal TLO has seen both uncertain and unstable institutionalization and has undermined the use of labor law and other regulatory responses to exploitation.

Yet this temporal moment of the 1990s onward is not restricted to the chapters gathered under the section on criminal activities that have transboundary effects; it also incorporates those clustered under the heading of promoting the implementation of anti-impunity measures and those designated as protecting international human rights in domestic criminal justice. In their chapter on the death penalty, Stephanie Neumeier and Wayne Sandholtz show that developments in the 1990s had the largest positive effect on the likelihood of death penalty abolition. This coincides with occurrences of death penalty phrases in Amnesty International and Human Rights Watch documents, which rose steadily through the 1990s and peaked at nearly one thousand per year after 2000. Meanwhile Levi and Sendroiu's chapter on human rights responses to sexual violence highlights how two thirds of the sexual violence recommendations concentrated in the second Universal Periodic Review period from 2012 to 2017.

Similarly, Joachim Savelsberg in his discussion of Darfur places the development of the anti-impunity TLO in line with Kathryn Sikkink's work, which documents how prosecutions against individual human rights perpetrators have increased exponentially in recent decades.Footnote ⁴ Savelsberg emphasizes the growth from the single digits in the 1980s, to about one hundred by the mid-1990s, to three hundred a decade later, and then approaching 450 by 2009. He goes on to recognize how this anti-impunity TLO coexists with competing fields, notably in the Darfur case study with the humanitarian aid and diplomacy framings of the conflict. Yet he shows that over time, media depictions deploying a criminal frame have predominated, enhanced by the involvement of the International Criminal Court (ICC).

The chapters on anti-impunity TLOs and those focused on the establishment of human rights safeguards against repressive policing and penal practices are generally more supportive of the role of international law than those discussing transnational crime. Crucially, however, the temporal moment is shared. As stated by Manuel Iturralde in his critical reading of the role of the ICC in accountability processes in Colombia, this period is one in which “the global expansion of liberal democracy has coincided with the rise of international criminal law and justice” (p. 235) and this has been coupled with opening up “economies and their political systems to foster the free movement of goods, services, and financial exchanges” (p. 237). A diverse ecology of criminal lawmaking is happening at this particular moment of late modern capitalism. The question is then where is it occurring in terms of substance and geography?

In terms of substantive areas of criminal justice, the book draws our attention to the use of criminal law as a response to money laundering, corruption, drug trafficking, human trafficking, immigration, post-conflict accountability, and gender violence. The editors note that other potential areas for discussion could include environmental crimes, transnational policing, and transnational responses to police violence. Overall, these areas of law focus on controlling the movement of goods, people, and capital and its attention is particularly on states (post-conflict), groups (migrants), and individuals (often women) classified as vulnerable. Kotiswaran, Barker, and Iturralde strongly demonstrate this in their chapters, but perhaps more surprisingly it is also evident in the chapter on the international standardization of prison conditions. In his chapter, Dirk van Zyl Smit, recognizes how the 2010 UN Rules for the Treatment of Women Prisoners and Non-custodial Sanctions for Women Offenders (the Bangkok Rules)Footnote ⁵ drew on the wider legitimacy that women's rights had accumulated in modern international human rights law to build international prison standards because “[n]o state would want to be seen to oppose them and thus appear to be against women's rights” (p. 268). As previous work on governance feminism has shown us, responding to the needs and abuse of women has provided fertile ground for building international and transnational legal regimes.Footnote ⁶ In doing the work of ordering the globe, criminal law is being drawn on to both protect and to control individuals, groups and states considered vulnerable—actors that are arguably easier to act upon and to speak for.

Finally, geopolitically, across the chapters in the book, there is a striking flow of law being developed and decided by rich countries and applied to poor countries. A few further examples are useful. In the chapter on anti-corruption, Radha Ivory shows how the Australian reforms focused on holding corporations criminally liable for failing to prevent the bribery of foreign officials were most clearly influenced by peer governments, notably the United States and the United Kingdom. Drawing on her earlier work, she recognizes how a critical lens would “have led us to consider whether and, if so, to what extent privatized corporate surveillance duties actually enhance economic freedoms (World Bank 2016) and sovereignty in Australia's globally southern trading partners” (p. 107). In doing so, Ivory draws attention to who drives the development of criminal justice TLOs and who carries the costs of their implementation.

Showing similar geopolitical concerns, Aaronson, in his chapter on cannabis control, demonstrates how the United States has made extensive use of bilateral treaties to create an issue-linkage between states’ willingness to adopt zero-tolerance models of drug policy and their eligibility for foreign aid, creating a resistance to other framings of decriminalizing or legalizing usage of this drug (p. 185). Meanwhile Halliday, Levi, and Reuter show that the anti-money laundering transnational order has pressed countries to draw informal markets into the formal economy where they can be better monitored. Their chapter goes on to highlight how “[t]his may have adverse economic effects on the poorest populations, who rely on cheap informal methods for moving money from city workers to rural parents” (p. 66) while constraining remittances that overseas workers can send back to their country of origin. Once again, the costs are felt most keenly in the Global South.

In a similar vein, while drawing worthwhile attention to the global successes in improving prison conditions, van Zyl Smit highlights the UK's recent support for building a prison complex in Nigeria to facilitate extraditions and prisoner transfers. He goes on to recognize that “the real motivation may be that wealthier states are keen to facilitate such transfers in order to rid themselves of troublesome offenders” (p. 287) and, as a result, “a focus on improving prison conditions in developing countries may lead to foreign aid being directed to building prisons to house expelled prisoners rather than to development programs that will benefit those countries more directly” (id.). In her posthumous conclusion to the collection, Sally Engle Merry succinctly states, this “infrastructural, contextual analysis highlights the role of powerful countries in supporting a TLO” (p. 373).

Taken as a whole, Transnational Legal Ordering of Criminal Justice demonstrates the strength of empirically informed sociolegal research. The book brings into conversation critical insights into the use of criminal law as a means to secure powerful interests—particularly those held by wealthier countries—with research that is dedicated to an ongoing commitment to criminal law's potentially virtuous use in realizing both human rights and the rule of law. The focus in this review on the temporal, substantive, and geopolitical coordinates of these transitional legal orders of criminal justice shows the points of intersection between these differing projects. What emerges from the book is a story of governing the Global South. Jean and John Comaroff's writing on the post-colony seems prescient in this regard, highlighting how we live “in an age in which profit rests ever more on the ability to control the long-distance migration of people and things.”Footnote ⁷ This book, both explicitly through detailed sociolegal insights enabled by transnational legal theory, and implicitly, through placing international criminal law and transnational criminal law in the same analytical frame, shows how criminal law is one way of securing these profit flows. In doing so, it also prompts a further analysis of how these profit flows follow previously established patterns of colonial extraction. Criminal law was a central part of European and Anglo-American political and economic expansion and these longer histories both inform and illuminate the marked material and political inequalities in this current expansion of transnational legal orders of criminal justice.

Recognizing these coordinates and their longer colonial resonances does not diminish the importance of the recursive nature of these TLOs. All the chapters in this collection bring greater and necessary attention to the agency, role, and interests of national and local actors inside and outside of the state. As the editors recognize in the opening chapter, mismatches often emerge between the actors shaping global norms of criminal justice at the international level and those implementing these scripts in national and local settings. For example, as Iturralde demonstrates in the case study discussion of Colombia, at the national level, the internationally and regionally generated ant-impunity TLO cohered with political groupings in Colombia made up of “traditional elites (landowners, members of the military, industrialists, and big business), and social and religious organizations.” They used this anti-impunity TLO to foster an essentialized framing of the guerrilla fighters as terrorists, drug traffickers, kidnappers, and murderers—“the worst of common criminals” (p. 240). This speaks to how differing criminal justice TLOs overlap and reinforce one another, as framings of terrorism and drug control cohere with framings of international criminals or, in another setting, with criminal migrants.Footnote ⁸

In placing these diverse criminal justice TLOs in a single collection, Transnational Legal Ordering of Criminal Justice offers an opportunity to make visible these shared temporal, substantive, and geopolitical coordinates, recognizing how they draw on, reinforce, or contradict each other. The breadth, depth, and empirically grounded rigor of this book offers a nuanced and illuminating understanding of how criminal law governs or organizes domination across borders.