n South African Journal of Criminal Justice - Transnational penal norm transfer : the transfer of civil forfeiture from the United States to South Africa as a case in point

Volume 16, Issue 3
  • ISSN : 1011-8527
  • E-ISSN: 1996-2118



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.

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