Criminal Law beyond the State: The European Model

• Published date: 01 March 2013
• Author: Massimo Fichera
• DOI: http://doi.org/10.1111/eulj.12020
• Date: 01 March 2013

Criminal Law beyond the State:

The European Model

Massimo Fichera*

Abstract: This article will analyse two models of criminal law beyond the State, which

are here termed ‘eunomic’ and ‘dialogic’. It will then focus on one case study, European

criminal law, which was inherently ‘dialogic’ until the last decade of the past century but

has now quite unique features. In accordance with classic liberal views, criminal law has

always been conceptualised as one of the most salient attributes of the sovereign State.

The monopoly on the use of violence was to be legitimised by the State’s concern for the

sphere of autonomy of the individual. It is submitted in this article that it is precisely this

condition that is lacking in the current European model, which promotes security-

oriented paradigms of self-fulf‌ilment and effectiveness. However, criminal law, if prop-

erly conceived, could in theory function as a powerful vehicle of integration.

I Introduction

Criminal law has recently been acquiring an increasingly higher prof‌ile at the

transnational level, and this has not yet been adequately recognised by criminal law

theorists. The most pressing issue in the face of this phenomenon is that it

contradicts the way criminal law has so far been conceived, ie as inextricably linked

with the State. What is curious about these recent developments is that they are all

occurring separately from each other. It is possible to discern different models and

patterns, but their complexity can perhaps be schematised, and some common

features can be identif‌ied. This article will attempt to do so by analysing two general

models, which are here called ‘eunomic’ and ‘dialogic.’ It will illustrate the main

implications of the emergence of these models and their connection with human

rights. It will be evident that when we talk about international criminal law, we refer

to two parallel dimensions. One has as its centrepiece, the International Criminal

Court, as well as the permanent and non-permanent courts that have been instituted

across the world with a specif‌ic geo-legal and geo-political role. The other one is the

outcome of a network of intertwined relations that overlap and are built around

well-tested institutions and practices. Similar patterns have also gradually emerged at

the European level. The article will focus on one particular case study that has

attracted the attention of many experts: European criminal law. It will show that

* Post-Doctoral Researcher, Centre of Excellence in Foundations of European Law and Polity Research,

Faculty of Law, University of Helsinki, funded by the Academy of Finland. I would like to thank the

anonymous reviewers for their helpful comments.

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European Law Journal, Vol. 19, No. 2, March 2013, pp. 174–200.

© 2013 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

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this model was inherently ‘dialogic’ until the 90s but has now emerged as an

independent and unique example of ‘criminal law beyond the State,’ perhaps as a

result of the simultaneous appearance of European constitutionalism beyond the

State. Its slow but steady evolution has been strongly inf‌luenced by free market

paradigms, and this affects inevitably the way the relationship between the citizen

and the public authority is shaped. In accordance with classic liberal views, criminal

law has always been conceptualised as one of the most salient attributes of the

sovereign State. This was admitted under a very strict condition. Holding the

monopoly on the use of violence was to be legitimised by the State’s deep concern

for the sphere of autonomy of the individual. It is submitted in this article that it is

precisely this condition that is lacking in the current European model. These

considerations are closely linked to the nature of the EU as a polity that possesses

some State-like traits and to the particular way the constitutional discourse in the

EU has been ‘securitised’ in recent years. It is for this reason that it is also argued

that criminal law can function as a powerful vehicle of integration only if conceived

outside the security-oriented policies pursued in Europe.

II The Concepts of Freedom, Security and Justice

The developments of transnational criminal law in Europe need to be considered

alongside the fast-growing area of freedom, security and justice (AFSJ). Although, as

can be seen from the Treaties, criminal law is only one of the disciplines covered by

this sector of EU law, it stands out for its importance and its ability to penetrate in

different contexts. An interpretation of the spirit behind the legislation and policies

adopted in this area can provide some useful guidelines for our analysis of the essence

of criminal law beyond the State in Europe.

When AFSJ was conceived, initially as ‘justice and home affairs,’ the idea was that

this should represent a crucial step towards political integration in the EU.1From the

very beginning, this development presented an internal and an external dimension. In

the pre-Maastricht era (which coincided with the f‌inal stages of the Cold War), the

so-called European Political Cooperation2was in fact essentially propelled by the

need to promote Western values. The Member States of the European Community

were (already in 1988) ‘(. . .) determined to make full use of the provisions of the

Single European Act in order to strengthen solidarity among them, coordination on

the political and economic aspects of security, and consistency between the external

policies of the European Community and the policies agreed in the framework of the

European Political Cooperation.’ This was to be put into practice by protecting

human rights and fundamental freedoms and the ‘free circulation of people and

ideas,’ as well as ‘the establishment of a secure and stable balance of conventional

forces in Europe at a lower level’ and ‘the strengthening of mutual conf‌idence.’ It was

an optimistic long-term project. This is why the European Council invited all

countries ‘(. . .) to embark with the European Community as world partner on an

historic effort to leave to the next generation a Continent and a world more secure,

1The Treaty of Maastricht (OJ C 191 29.07.1992) set up the Third Pillar and AFSJ was at that time

termed ‘Justice and Home Affairs.’ See also consolidated versions of the Treaty on European Union

(TEU) and of the Treaty Establishing the European Community (TEC), OJ C 325 24.12.2002.

2The European Political Cooperation (EPC) was created as an informal cooperation structure in the 70s:

it was later reformed and became Common Foreign and Security Policy (CFSP) in the Maastricht

Treaty.

March 2013 Criminal Law beyond the State: The European Model

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