Criminal Jurisdiction and the Nation-State: Toward Bounded Pluralism

Abstract

Should nation-states fight to maintain their traditional monopoly on criminal jurisdiction, or should they accommodate themselves to supra-national and sub-national prosecutors and courts? Here in the United States, we face difficult questions about how to engage with the supra-national International Criminal Court in The Hague and how much criminal jurisdiction to cede to sub-national Native American tribes at home. Legal commentators interested in criminal jurisdiction tend to fall into one of three categories: (1) Nationalists such as John Yoo who want to strengthen nation-state criminal justice systems against all jurisdictional challengers, (2) Internationalists such as Anne-Marie Slaughter who promote robust international institutions like the International Criminal Court, and (3) Pluralists such as Paul Berman who champion greater autonomy for sub-national communities to run their own criminal justice systems. This article lays out a new approach to the relationship between criminal justice and the nation-state – the approach of Bounded Pluralism. Bounded Pluralism stands for the proposition that a nation-state may, where appropriate, cede some elements of its criminal jurisdiction to sub-national or supra-national entities, but that it should maintain supervisory jurisdiction to ensure that the exercise of such jurisdiction conforms to fundamental national norms, such as Constitutional guarantees. On this basis, the United States ought to be open to recognizing the functional criminal jurisdiction of Indian tribes and of the International Criminal Court, but it should insist on retaining supervisory jurisdiction to confirm that those entities respect the fundamental due process rights embedded in the U.S. Constitution. Bounded Pluralism thus allows the nation-state to remain faithful to its core national values, while recognizing the legitimacy of certain supra-national and sub-national jurisdictional claims. The article details the implications of Bounded Pluralism for how the federal government should approach contemporary issues in tribal criminal jurisdiction and in international criminal law.

Keywords: jurisdiction, criminal procedure, legal pluralism, nationalism, territoriality, Federal Indian Law, international criminal law, ICC, Rome Statute, tribal jurisdiction, sovereignty, globalization