Transnational penal norm transfer: The transfer of civil forfeiture from the United States to South Africa as a case in point

• Jurisdiction: South Africa
• Author: Neil Boister
• Citation: (2003) 16 SACJ 271
• Published date: 24 May 2019
• Date: 24 May 2019
• Pages: 271-294

ARTICLE

Transnational penal norm transfer:

The transfer of civil forfeiture

from the United States to South

Africa as a case in point

NEIL BOISTER*

ABSTRACT

This article explores the transnational transfer of penal norms from developed 'law-

giving' states to developing `law-taking' states. It takes as a case in point the transfer of

civil forfeiture from the United States to South Africa. Its main focus is not the nature

of the norm transferred, but the process of transfer. The highly controversial nature of

civil forfeiture is used as a vehicle to point to deficiencies in the existing process of

norm transfer. The article analyses the process from the development of the norm,

through its identification as suitable for transfer, the use of international law as a

medium, the agency of transfer — the 'transnational law enforcement enterprise',

adoption by the law-taking state, and the implementation of the norm in that state. It

refers in each stage to the example of the transfer of civil forfeiture to South Africa.

The article then explores the democratic deficiencies of this process. It takes this

process as an example of transgovernmentalism isolated by the American

interdisciplinary school Anne-Marie Slaughter. It examines this process, in the

context of the theoretical justifications Slaughter offers, from a sociological, ethical

and legal perspective. It concludes that further study of the process, greater

transparency and accountability in the process, and greater emphasis on legal validity,

are necessary to overcome its ethical and legal shortcomings.

Introduction

The spectre of transnational crime has had a significant impact on the

development of domestic criminal law. We have moved from the maxim

* BA LLB LLM (Natal) PhD (Nottingham)

Senior Lecturer, School of Law, University of

Canterbury.

A version of this article was given as a paper at a seminar entitled, 'International

law from the margins: Perspectives on law and human rights', School of Law, Birkbeck

College, University of London, 22 May 2002. My thanks to Geoffrey Leane for his comments

on a draft of this article. As always all opinions and errors are my own.

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(2003) 16 SACJ 271

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(2003) 16

extra territorium jus dicenti impune non paretur

1

—

effectively that all crime

is local — to an acceptance that transnational crime presents tangible threats

to which all states must respond in the same way. But we have spent little

time in analyzing how this change has occurred or what implications it has

for the way in which criminal law is propagated and controlled. What can

loosely be termed the globalisation of penal laws is usually the province of

law enforcement professionals who go about their often extremely complex

business untroubled by the ethics of this 'legal technology transfer'. In

contrast, most of those subject to these penal norms are unaware that the

processes being applied to them originated elsewhere and were transferred

into domestic law. For the academic observer this process is interesting when

it involves the transfer of a norm from one developed state — developed in

the sense of having a sophisticated and functioning criminal justice system —

to another such state. But it becomes a subject of concern when the norm

crosses from a developed state to a developing state — a state that may have a

fairly unsophisticated and/or dysfunctional criminal justice system — because

of the inherent inequalities in such a relationship.

Academic interest in the role of power disparities in the legal relationships

between colonial state and colony, developed state and developing state,

North and South, First and Third World, is not new. Many scholars have

shown that there are systemic inequalities inherent in the global legal order.

2

This article analyses a particular instance of this inequality in a peculiar

context — the development and transfer of penal or criminal law norms from

developed states to developing states.

The globalisation of asset forfeiture provides a very good example. With

the export through the medium of international law of the forfeiture of

criminal assets, 'law and development' takes on a character of a kind unusual

in an age where international law is considered to be an agent for the

restriction of excessive state power qua individual interests in the developing

world. The 'good' being exported is not the restraint of the state through law,

but the increase of its power. This article suggests that unscrutinized and

unrestricted import of penal norms of such an invasive kind have at least the

potential to be a bad thing.

1

Lord Halsbury LC in

Macleod v Attorney-General (NSW)

[1891] AC 455 at 458.

2

See, for example, S Burman and BH Bond

The Imposition of Law

(1979); J Starr and JF Collier

History and Power in the Study of Law New Directions in Legal Anthropology

(1989); Darian-

Smith and P Fitzpatrick

Laws of the Postcolonial

(1999).

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