Rule of Law: Lofty Ideal or Harsh Reality?
| DOI | https://doi.org/10.1108/eb025999 |
| Pages | 347-355 |
| Published date | 01 February 2001 |
| Date | 01 February 2001 |
| Author | Winston P. Nagan |
| Subject Matter | Accounting & finance |
Journal of Financial Crime — Vol. 8 No. 4
Rule of Law: Lofty Ideal or Harsh Reality?
Winston P. Nagan
The Palermo Conference represents an important
paradigm of civic responsibility that holds important
global lessons for the kind of solidarity and coopera-
tion necessary to transform the harsh reality of pri-
vate and even public tyranny into the higher ideals
of civic decency.1 It is the predicate that defends the
rule of law precept as a stabilising and transformative
component of a world order that honours and
respects the dignity of all the people. The theme of
the symposium where this paper was first presented
was,
of course, the rule of law in the global village.
More specifically, the title here is 'The Rule of
Law: Lofty Ideal or Harsh Reality?' How then does
the UN convention against Transnational Organized
Crime,2 in general, impact on the major themes just
specified? What does the convention have to do with
the rule of law and the earth-space community,
visualised as a global village?
THE CONVENTION, ORGANISED
CRIME AND SOVEREIGNTY
The convention represents a recognition of the harsh
reality that crime is not simply a localised phenom-
enon. Indeed, it recognises that a huge segment of
crime is international; it is transnational; it is indeed
global. In particular, the identification of a critical
segment of global crimes namely the phenomenon
of 'organised' crime, underlines the particular threat
that this form of crime presents for world order,
and in particular the rule of law foundations of
world order.
The historically territorial nature of criminal law
had a close correspondence with the principles of
juridical and political sovereignty.3 The functions of
sovereignty directly conditioned the reach and
efficacy of the prescription, application and enforce-
ment of criminal law, with serious territorial limit-
ations.4 This undermined the efficacy of the state to
control and regulate crimes having trans-state or
transnational character. From an international per-
spective, the global system is still largely a con-
stitutionally state-centred system.5 That system has
limited the power of organised global society to
control and regulate crimes of the magnitude repre-
sented by transnational organised criminal syndicates
and gangs. In effect, it provides a loophole in our
global system of law and public order. It is a dan-
gerous loophole because it tolerates a juridical and
political vacuum within which organised crime can
thrive.
The success of transnational organised crime means
that vast amounts of ill-gotten proceeds are outside
the reach of organised political authority. These
proceeds are better seen as bases of power and
material resources for the support of organised trans-
national crime. They permit it to become globally
institutionalised, to become competitive for power,
to become a threat to states large and small. Indeed,
organised crime might be seen to represent an alter-
native normative order (a negative Utopia) which
supports brute force over law, order and civility.
The Convention against Transnational Organized
Crime is a truly significant milestone in international
law and cooperative world order. The problem of
organised crime as indicated is an especially danger-
ous threat to world order and to the basic principles
of the UN Charter, which is the living symbol of
the constitutional order upon which the contempor-
ary international rule of law is based. Transnational
organised crime is not simply antisocial, apolitical
and economically exploitative, it is much more.
Traditionally, crime is a socially deviant aberra-
tion. Organised law enforcement must simply be
effective in the detection, apprehension, prosecution,
trial, conviction and punishment of the perpetrator.
The perpetrator is often randomly created. Even
when working in groups, the deviance is ad hoc,
occasional, and certainly, like all deviant behaviour,
a threat or potential threat to public order and
civic freedom. When crime gravitates from the
occasional, isolated and random experience to
systematic organisation and sustained practices of
institutionalised deviance, it is a particularly danger-
ous threat to world order. Indeed, when organised
crime marshals vast resources such as capital, func-
tionaries and instruments of violence, the attack on
public order moves from the random and anecdotal
to the systematic and sustainable. Organised crime
moves from the challenge of deviance to the
challenge of an alternative structure of normative
priority. Law and authority become challenged by
Journal of Financial Crime
Vol.
8,
No.
4,
2001.
pp.
347-355
© Henry Stewart Publications
ISSN 0969-6458
Page 347
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