Introduction

Criminal jurisdiction gets no respect. Civil jurisdiction attracts plenty of attention; legislatures address it, courts puzzle over it, lawyers argue about it, law professors teach it and ponder it in academic journals. In administrative law, and even in constitutional law, entire jurisprudential edifices are built on the concept of jurisdiction; one could say, without blushing, that jurisdiction is the fundamental concept of administrative and constitutional law, theoretically and historically, insofar as these branches of law are seen as drawing, and judicially policing, jurisdictional limits in light of some distinction between ultra and intra vires.

By contrast, criminal jurisdiction simply is. It is either not taught, or taught in passing, has generated little scholarly interest, is treated by lawyers, their clients, and courts as an uninteresting, at best technical, issue near the bottom of anyone’s checklist of legal questions that make a difference in a given case. Legislatures, if they bother to address the jurisdictional scope of their criminal code (if any), generally content themselves with statutory platitudes. (The classic case, here, is the mere declaration that a given state’s criminal law applies to offences committed within its “territory,” often followed by a haphazard and constantly expanding list of offences committed outside that territory, yet “deemed” to have been committed within it.) It is as though the mere suggestion that a sovereign set out the jurisdictional scope of its penal power were an affront to sovereignty itself. Criminal jurisdiction just is because a sovereign just has it.

This is a shame. Criminal jurisdiction deserves more respect, and this focus feature hopes to make a contribution, however small and preliminary, to giving criminal jurisdiction its due. It aims to start a fresh conversation about criminal jurisdiction, in domestic and international law, informed by comparative, historical, and theoretical perspectives.

Mireille Hildebrandt’s paper, “Extraterritorial Jurisdiction to Enforce in Cyberspace? Bodin, Schmitt, Grotius in Cyberspace,” is a wide-ranging investigation into the history and nature of jurisdiction, ranging from Bodin to Web bots, and from Grotius to cyber war. Hildebrandt tries to come to grips with the concept of territorial jurisdiction in the age of cybercrime; that is, of crime in cyberspace. Finding traditional conceptions of jurisdictional territoriality inapplicable to the phenomenon of crime in cyperspace, Hildebrandt explores alternative, a-territorial conceptions of spatiality. Drawing on, among other things, Grotius’s construct of a mare liberum – the sea as free also from the traditional confines of territoriality – and Foucault’s notion of heterotopia – a space beyond territory, Hildebrandt provocatively calls for a reconceptualization of jurisdiction, in the sense of law enforcement, insofar as it reflects the non-traditional spatiality of cyberspace without also moving beyond the realm of law: a conception of jurisdiction that is a-territorial without being a-legal.

In “Territorial Jurisdiction and Criminalization,” Lindsay Farmer also investigates the historical and theoretical relationship between territoriality and jurisdiction, but from another perspective and for a different purpose. He is not concerned with developing an account of criminal jurisdiction in a-territorial cyberspace; rather, he urges us to take territoriality seriously. Rather than dismissing territoriality in criminal jurisdiction as antiquated, unenlightened, or irrational – or all three – he sees the discourse of territoriality as part of a broader inquiry into the scope of criminal law. In particular, he points to similarities between the logic of contemporary debates about criminalization in the realm of substantive criminal law, on the one hand, and of doctrinal treatments of territorial jurisdiction, on the other. In the end, Farmer argues, the jurisprudence of jurisdiction, despite its technical façade, is concerned with “the normative power and authority of the criminal law.”

“Criminal Jurisdiction and Conceptions of Penality in Comparative Perspective” takes a comparative-historical look at criminal jurisdiction, focusing on German and common criminal law in an attempt to explore the connection between bases of jurisdiction and conceptions of the state’s penal power. The article argues that this connection has received no more attention in German criminal law than it has in common law systems, even as German criminal law has been less unwilling than common law systems to ground domestic jurisdiction in notions other than territoriality. Instead, in...