Max Planck Institute for Foreign and International Criminal Law

Globalization leads to increasing harmonization of criminal law – especially in closely knit economic and political communities. This process, however, takes very different paths in the various areas of law and in the various regional alliances. This raises yet-unresearched basic issues: Which private or governmental actors influence this development? Which forces work for and which against harmonization of criminal law? What interactive processes occur in the course of international unification of criminal law? Can differing models of criminal law harmonization be identified?

In this project, these issues were analyzed by an international team of experienced comparative law scholars who met in Paris, Freiburg, Basel, Naples, and Toledo to discuss their interim results. The analysis encompassed eleven areas of law, including international crime, terrorism, human trafficking, and corruption. In a subsequent cross-sectional analysis, these areas of the "Special Part" of the study were assessed from the perspective of a newly developed theory of harmonization of criminal law.

In the analysis of the eleven selected areas of law at the beginning of the work, the Max Planck Institute in Freiburg studied the harmonization processes in the various areas of the law of Internet crime. In this "microcosm" of various subsections of law, both substantive and procedural, the findings regarding the overlapping rules of the various international organizations are especially interesting. They show that previous results of research conducted in the area of civil law – on conflicting regulations caused by a fragmentation of the law, for example – do not apply in the same way to criminal law. Furthermore, they show that, despite the general lack of democratic legitimacy on the international level, international organizations have employed various mechanisms that enable them to facilitate the effective unification of the law and at the same time to achieve the level of democratic legitimacy required of criminal law. These results, developed for the "microcosm" of Internet criminal law, blaze a new scholarly trail, at least for Germany and especially for criminal law.

In the general cross-sectional analysis of the various categories of offenses, the Freiburg Institute was responsible, in addition, for examining the factors behind criminal law harmonization. These factors reflect the national interests of nation-states in effective transnational prosecution within the framework of a homogeneous criminal policy. Of considerable importance for successful harmonization is whether the area in question already shares a common value system, for example, a system shaped by universally applicable human rights. Additional factors behind the harmonization of criminal law are the existence of specific instruments (such as European directives) that contribute to the "hard" implementation of unification of criminal law. The influences of international organizations, of experts concerned with harmonization, of the economy, and of civil society (the latter particularly in connection with the reporting of spectacular cases in the media ) are also significant. Politically powerful nation-states – particularly those that share basic values – are able to push through their harmonization ambitions against opposing sovereign interests of other nation-states and against the argument in favor of preserving "national" criminal law culture.

The project findings have been published in: M. Delmas-Marty/M. Pieth/U.Sieber (ed.), Les chemins de l'harmonisation pénale / Harmonising Criminal Law, Paris 2008 (this volume contains the contributions – discussed above – from the Institute by Ulrich Sieber "Mastering Complexity in the Global Cyberspace" 127–202 and "The Forces behind the Harmonization of Criminal Law" 385–417).