The Ahistoricism of Legal Pluralism in International Criminal Law

Co-authored with Asad Kiyani. Forthcoming, American Journal of Comparative Law (2017) (peer reviewed), 70 pages.

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International criminal law (“ICL”) is legally plural, not a single unified body of norms. As a whole, trials for international crimes involve a complex dance between international and domestic criminal law, the specificities of which vary markedly from one forum to the next. To date, many excellent scholars have suggested that the resulting doctrinal diversity in ICL should be tolerated and managed under the banner of Legal Pluralism. To our minds, this approach omits a piece of the puzzle that has major implications for their theory – the law’s history. Neglecting the historical context of the international and national criminal laws that inform ICL leads to the uncritical adoption of criminal law doctrine as a proxy for diverse social, cultural and political values. This, we say, is often a false equation that results in important normative distortions, with major implications for the field’s self-image, function and legitimacy. To reinsert that history, this Article undertakes a very substantial review of the history of criminal doctrine in various national legal systems, as well as international correlates at each stage of the field’s development.