Introduction
Legal analyses often make claims that are limited to laws that originate in specific states. A simple example would be an analysis of privacy law in the United States that describes or explains the impact of norms adopted by agencies, courts, and legislatures located in the United States as opposed to norms endorsed by branches of the French state and the European Union (EU) (Watt Reference Watt, Reimann and Zimmermann2019, 599; see also Siems Reference Siems2019). This kind of nationalistic source-based approach is a good way of shedding light on the relationship between law and society when laws influence, and are influenced by, people within a single nation-state without any cross-border effects. Cross-border effects are, however, hallmarks of the modern world. The essence of globalization is substantial, though potentially volatile, flows of ideas, information, goods, services, people, and legal authority across international borders. Therefore, globalization necessarily involves violation of the main conditions that must be satisfied in order to justify the nationalistic source-based approach, thus compromising its analytical value. For example, there is evidence that the privacy practices of firms that operate exclusively in the United States are influenced significantly by EU privacy law, meaning that it often will be misleading to analyze “US privacy law” without taking into account legal norms emanating from the EU (Davis and Marotta-Wurgler Reference Davis and Marotta-Wurgler2024). This example illustrates why many scholars have questioned the value of the nationalistic source-based approach to legal analysis.Footnote 1
This article uses a case study of a highly globalized society, Jamaica, to shed light on both the limitations of the nationalistic source-based approach to legal analysis and the benefits of an alternative subject-based approach.Footnote 2 The case study focuses on the laws that influence levels of homicide, a topic that is not typically considered to be subject to cross-border influence. Source-based approaches to legal analysis focus on sets of laws defined in terms of properties of their sources, such as their nationality or location. Subject-based approaches to legal analysis, by contrast, focus on sets of laws defined in terms of properties of the social phenomena they govern. The laws that influence a particular subject may emanate from multiple sources and may include laws that emanate from foreign or supranational sources. So, for example, a source-based comparative analysis might compare the narcotics laws adopted and administered by the Jamaican state to those adopted and administered by the Barbadian state. By contrast, a similar subject-based analysis would compare the narcotics laws that govern people located in Jamaica to the narcotics laws that govern people located in Barbados. The difference is that, as we shall see, the laws that govern the use of narcotics in Jamaica may not be limited to Jamaica’s domestic laws.
The analysis in this article builds on and extends theories of global legal pluralism, transnational law, and transnational legal ordering that emphasize the difficulty of analyzing legal systems, either in descriptive or causal terms, without accounting for foreign law. Specifically, the analysis here provides a typology of ways in which to account for foreign law when describing “the range of legalities that course through the everyday experience of people” and emphasizes the importance of one particular channel of influence—international regulatory spillovers (Berman Reference Berman2020, 10). It also extends literature on how to draw inferences about causal relationships between law, on the one hand, and social, economic, or political outcomes, on the other hand, by emphasizing the need to account for the potential influence of foreign law.Footnote 3 This may in turn shed light on behavior such as transnational lobbying, thereby contributing to literature on the development of legal systems whose influence extends across international borders (Korkea-aho Reference Korkea-aho2016, 45–68). Finally, although the focus of this analysis is on cross-border effects in the international context, it complements analyses of cross-border effects that arise within nation-states.Footnote 4
For the purposes of this article, the term “law” is defined broadly to include all the components of a functioning legal system. These include not only norms but also the institutions that enforce or administer them and the actions of those institutions (Kornhauser Reference Kornhauser2022). The first section of the article introduces the challenges that globalization poses to the nationalistic source-based approach to legal analysis, and then presents the alternative subject-based approach. The second section uses a case study of the laws that govern homicide in Jamaica to illustrate both the limitations of the nationalistic source-based method and the merits of the subject-based approach. The third section elaborates on the methodological implications of the case study. A brief conclusion follows.
Source-based legal analysis and the challenge of globalization
The nationalistic source-based approach to legal analysis
Our focus here is upon the nationalistic source-based approach to legal analysis, a mode of analysis that involves making claims about laws defined in terms of the states from which they originate.Footnote 5 In other words, the legal units of analysis are defined by reference to the nationalities of the laws’ sources. A classic example would be a comparative study of contract law that defines the laws to be compared as those promulgated by branches of different states (the United States and France in the example from the preceding section).Footnote 6 It is worth noting that the nationalistic approach is only one of several possible source-based approaches. For instance, in some cases, the unit of analysis is a legal tradition—that is to say, laws that share a connection to a historical source such as the English common law courts or the Napoleonic Code (Glenn Reference Glenn2014). Other source-based analyses encompass laws generated by supranational institutions such as treaties (for example, the United Nations [UN] Convention on Contracts for the International Sale of Goods [CISG]).Footnote 7
The nationalistic source-based approach embodies a form of methodological nationalism—that is to say, treatment of nation-states as the appropriate units of analysis.Footnote 8 This kind of methodological nationalism is perfectly appropriate when laws have mutually exclusive relationships with subjects located in specific territorial units. In other words, reliance on methodological nationalism rests on two assumptions. First, to the extent that law affects conditions within a given territory, its influence operates exclusively through the laws of the nation-state with sovereignty over that territory (“domestic laws”). Second, a state’s laws are ultimately shaped by the actors located in its territory. These assumptions guarantee, for example, that English law is the principal legal influence upon, and is produced exclusively by, the people physically located in England, while French law is the principal legal influence on, and is produced exclusively by, the people located in France.
If the assumptions that support methodological nationalism hold, then for most analytical purposes it will be reasonable to identify the legal consequences of actions in a particular territory by looking solely to its domestic laws. This is true whether the purpose of the analysis is descriptive, interpretive, or causal. That is to say, when the key assumptions hold, nationalistic source-based analysis is valid whether the purpose of the analysis is to explain the legal consequences of action, to understand the ideas about law held by the people of a particular territory, or to serve as an input in the process of formulating and testing causal claims in which law serves as either a cause or a consequence of some other phenomenon. So, for example, in the case of contract law in New York, understanding the effects of a particular action (such as signing a specific contractual document), or attitudes toward freedom of contract, or the factors that drive convergence and divergence in contract doctrine, or the effects of contract law on economic growth will begin by identifying the laws that emanate from sources endorsed by the state of New York and by the United States of America.
Three challenges posed by globalization
Globalization, which is conventionally understood to entail movements of people, capital, goods, services, and data across international borders, poses at least three distinct challenges to the assumptions that underlie methodological nationalism and, by extension, nationalistic source-based legal analysis. First, globalization often is associated with cross-border diffusion of ideas about the content or application of legal norms, also referred to in the literature as legal transplants, translation, or transfers.Footnote 9 Classic examples of international legal diffusion include the diffusion of the Napoleonic Code in the mid-nineteenth century and, more recently, the widespread adoption of norms embodied in supranational instruments such as EU directives and regulations, the CISG, or the Organisation for Economic Co-operation and Development’s (OECD) Convention against Bribery of Foreign Public Officials.Footnote 10 Instances in which the application of foreign law influence the application of local law include cases where requests for mutual legal assistance or recognition of foreign official acts trigger action in the local legal system.
At first glance, the existence and significance of these kinds of cross-border legal influences—which can occur through an enormous variety of mechanisms—calls into question the value of legal analyses that focus exclusively on domestic sources. Yet, in fact, nationalistic source-based analysis can easily accommodate domestic laws influenced by foreign sources. Whenever a foreign law is adopted or endorsed by a domestic legal institution, the domestic institution can be treated as the source of the law for the purposes of the actors within its territory.Footnote 11 For example, in a comparison of English and French contract law, it is straightforward to define each country’s domestic law to include the EU directives and treaties its courts and legislatures recognize as binding.Footnote 12
A second aspect of globalization poses a more severe challenge to the nationalistic source-based approach. Globalization sometimes is associated with extraterritorial regulation, meaning laws that apply to conduct outside the territory of the promulgating state.Footnote 13 The spheres of application of these laws are defined by non-territorial factors such as agreement, nationality, or religion. For instance, contracting parties often are able to opt out of the law applied by courts in the territory in which they are located by using a combination of choice-of-forum and choice-of-law clauses that point to foreign law and foreign courts.Footnote 14 Nationality-based regulation, such as the US Foreign Corrupt Practices Act, allows a state to sanction its nationals for conduct that has taken place entirely outside its borders.Footnote 15 Similarly, religious laws such as canon law or Islamic law may span national borders.Footnote 16
Extraterritorial regulation poses a well-recognized threat to the nationalistic source-based approach because it challenges the assumptions that underpin methodological nationalism. In each of the examples above, it would be misleading to say that the relevant subjects are governed solely by the laws of the territorial state. Nor are they necessarily governed solely by foreign law. Rather, they are governed by a combination of laws administered by an ensemble of institutions, some but not all of which have a connection to the territory in which the actors are located. Many commentators have stressed the importance of accounting for this kind of legal pluralism in legal analysis (see, for example, Reimann Reference Reimann2001; Menski Reference Menski2009; Husa Reference Husa2011; Berman Reference Berman2012, Reference Berman2020; Halliday and Shaffer Reference Halliday and Shaffer2015; Davis Reference Davis2018; Klabbers and Palombella Reference Klabbers, Palombella, Klabbers and Palombella2019, 9–10; Santos Reference Santos2020, 99–120, 513–16).Footnote 17
There is a third aspect of globalization that challenges methodological nationalism and the associated approach to legal analysis: foreign laws may cause international regulatory spillovers, meaning that they may influence actors or activities to which they do not apply directly.Footnote 18 When people, goods, services, or capital move across borders, or when actors operate simultaneously in multiple territories, they typically become subject to the laws of different states, either consecutively or concurrently. Laws that apply to these sorts of cross-border activities are sometimes referred to as transnational law (Jessup Reference Jessup1956), and when norms from multiple sources apply simultaneously, the concepts of global legal pluralism (Berman Reference Berman2012) and inter-legality (Santos Reference Santos2020) come into play. It is unclear whether the concepts of transnational law, global legal pluralism, or inter-legality encompass foreign law that induces international regulatory spillovers because it is debatable whether any of those concepts capture situations in which people or things that move or operate across borders are influenced by laws that do not directly apply to them.Footnote 19
Yet there are clearly situations in which law indirectly influences actors or activities outside the territory of the promulgating state because it applies directly to related actors or activities.Footnote 20 For example, there is evidence that a change in US law that removed a ban on sales of assault weapons in certain states increased homicides in neighboring Mexican municipalities by increasing access to guns (Dube, Dube, and García-Ponce Reference Dube, Dube and García-Ponce2013). During the 1920s, prospective migrants from Italy to the United States were motivated to invest in education in order to pass the literacy test for migrants adopted by the United States in 1917 (Cox Reference Cox2009, citing Cometti Reference Cometti1958, 827–28). Finally, firms with operations in the EU often ensure that products marketed to US consumers conform to standards established by EU law because they find it uneconomical to conform to multiple standards (Davis and Marotta-Wurgler Reference Davis and Marotta-Wurgler2024), a version of the phenomenon that Anu Bradford (Reference Bradford2020) labels the “Brussels effect.”
Legal diffusion, extraterritorial regulation, and international regulatory spillovers do not only complicate the analysis of which source’s laws influence any given subject, but they also complicate the analysis of which actors are likely to try to influence the legal output of any given source. People and firms governed by laws from multiple sources often are motivated to try to shape all the laws that govern them. So, for example, the Brussels effect gives US firms incentives to lobby EU regulators in Brussels, even if they do little business in the EU (Bradford Reference Bradford2020, 138, 196, 254–57).
In summary, legal diffusion, extraterritorial regulation, and international regulatory spillovers disrupt the assumptions that underpin methodological nationalism by causing relationships between sources and subjects to proliferate.Footnote 21 These forms of globalization allow laws emanating from any given source to govern—that is to say, influence—subjects in multiple nations’ territories. They also allow the subjects in each territory to be governed by laws from multiple sources. Figure 1 provides a schematic illustration of the difference between a situation in which relationships between laws and territories are mutually exclusive (nationalistic law) and one in which there are multiple overlapping relationships (globalized law). The figure illustrates three distinct channels through which laws emanating from a source in one territory can affect subjects in another territory: legal diffusion, extraterritorial regulation, and international regulatory spillovers. As noted above, it is unclear whether the concepts of transnational law or legal pluralism capture all three of these channels of influence, and, even if they do, it is helpful to distinguish the channels because they have distinct implications for legal analysis.
Nationalistic versus globalized law.
Subject-based approaches to legal analysis
The fact that nationalistic source-based approaches to legal analysis fail to capture all the possible channels through which foreign law can influence activities in a given territory highlights the need for an alternative approach—namely, one that defines the laws to be analyzed by reference to characteristics of the subjects affected by the law. For these purposes, a “subject” can be virtually any social phenomenon, typically defined in terms of both the actors and the activities involved. For instance, suppose the aim is to undertake a comparative analysis of “English contract law” and “US contract law.” Under the source-based approach, the analysis of English law would include only contract laws emanating from, or endorsed by, English institutions. These would include, for example, EU laws that continue to have direct effect in England under the terms of the European Union (Withdrawal) Act 2018.Footnote 22 By contrast, a subject-based approach would analyze all the laws that affect contracting by English nationals or, alternatively, people located in England.Footnote 23 This approach would include EU laws that have not been given direct effect by the British Parliament but either apply extraterritorially or are followed by English firms responding to the Brussels effect. In fact, under the subject-based approach, many EU laws would also be included in the set of laws that affect contracting in the United States, and a comparative analysis might include a comparison of how extraterritorial EU law and the Brussels effect influence English and US subjects respectively.
Source-based analysis is well suited for studies that attempt to describe or explain how laws vary across space or time. Characteristics of sources often influence the characteristics of laws, and so it generally will make sense to identify laws by source when trying to explain legal variation. For example, if the objective of a study is to explain variations in the jurisprudence of constitutional courts, then it seems natural to compare the jurisprudence of different courts. The central argument in this article is that there are many circumstances in which the subject-based approach to defining the set of laws to be analyzed will be more useful than the source-based approach. To begin, suppose the purpose of the analysis is a practical one, such as predicting, understanding, or potentially altering the legal consequences of peoples’ actions. An analysis that omits the legal sanctions that flow from certain sources will be of limited value. For example, it is not helpful to advise a firm that it can pay bribes without fear of prosecution under the laws of Country X if the payments are likely to attract sanctions under the UK Bribery Act (which has broad extraterritorial reach) and if transferring the proceeds of bribery to the United Kingdom will create liability under UK anti-money laundering laws.Footnote 24
Subject-based analysis may also be useful when the purpose of the analysis is intellectual rather than practical. An analysis that omits the UK Bribery Act and UK anti-money laundering laws is likely to be unhelpful if the purpose is to understand the firm’s attitudes toward anti-corruption law, why it refrains from paying bribes in Country X but not in Country Y, and, perhaps, why Country X has invested less than Country Y in enforcement of its anti-corruption laws. The point of these illustrations is that, for many practical and intellectual purposes, legal analysis is most useful when it encompasses all the laws that affect a particular subject, regardless of their source. Those sources may include not only domestic legal institutions and the domestic institutions whose laws the domestic institutions have endorsed but also foreign institutions involved in extraterritorial regulation and the regulation of cross-border activity. A subject-based analysis admittedly may not be suitable for explaining changes in laws that apply to many groups of subjects, but it can still form a part of such an analysis. For instance, an analysis of all the laws that govern payments to public officials by firms doing business in Country X will not be sufficient to understand the evolution of the UK Bribery Act. However, the application of the UK Bribery Act to firms in Country X and those firms’ efforts to either lobby against or evade the statute may be an interesting part of the story of the UK Bribery Act.
Homicide in Jamaica: a case study in legal globalization
The remainder of this article uses a case study of laws bearing on homicide in Jamaica to show the importance of taking foreign laws into account when analyzing what might at first glance appear to be a largely domestic subject. There is ample literature on the ways in which foreign law affects domestic criminal law in countries like Jamaica, but less attention has been paid to other channels through which foreign law might regulate domestic criminal activity (Nelken Reference Nelken and Nelken2011; Aaronson and Shaffer Reference Aaronson and Shaffer2021).Footnote 25 For instance, there have been important efforts to link violence in postcolonial societies like Jamaica to the legacies of colonial legal regimes (Thomas Reference Thomas2011, 106–24). In addition, literature on contemporary transnational legal orders has explored the ways in which domestic criminal justice systems are influenced by foreign norms, including international human rights law (Hamilton Reference Hamilton2014; Aaronson and Shaffer Reference Aaronson, Shaffer, Shaffer and Aaronson2020, 3–48). The literature on transnational legal orders also considers how foreign law operating extraterritorially might influence cross-border activity such as transnational bribery or drug trafficking as well as atrocities such as torture (Aaronson and Shaffer Reference Aaronson, Shaffer, Shaffer and Aaronson2020). However, because homicide is not generally considered to be a transnational or international crime, little attention has been paid to the ways in which foreign law might influence this kind of activity independently of domestic law.
In fact, there is a variety of ways in which foreign extraterritorial regulation and international regulatory spillovers have influenced homicide in Jamaica. The first subsection below shows that Jamaica is a highly globalized society whose remarkably high homicide rate is difficult to explain solely by reference to conventional nonlegal factors. The next subsection questions the extent to which it is possible to understand legal influences upon patterns of homicide in the country solely by reference to the features of the Jamaican criminal justice system. The final subsection discusses a series of other factors that the relevant literature identifies as drivers of homicide in Jamaica and that can be linked to foreign laws.
Homicide in Jamaica
The implications of a phenomenon like legal globalization are likely to be most evident in the societies in which it is most prevalent.Footnote 26 Jamaica, like many other Caribbean countries, fits this description. Relative to most OECD countries, it has high levels of trade and large inflows of remittances.Footnote 27 It is also globalized in the legal sense—most notably, because it relies on the Judicial Committee of the Privy Council as its final court of appeal. The Judicial Committee is formally part of the Jamaican legal system, but it also hears appeals from several other Caribbean countries, is physically located in Britain, and is staffed primarily by British judges. For all these reasons, the Judicial Committee seems particularly susceptible to the influence of actors who are foreign to Jamaican society.
There are probably several social phenomena in Jamaica that cannot be explained without accounting for the influence of foreign laws, but, in this article, we will focus on just one: Jamaica’s exceptionally high levels of homicide. For decades, local officials have characterized the high level of violent crime as Jamaica’s most pressing problem.Footnote 28 On several occasions since independence, widespread violence has prompted the government to declare a state of emergency, thereby granting members of the security forces extraordinary powers and allowing them to suspend certain civil liberties (Jamaican Gleaner 2018). Since January 2018, the government has declared several long-lasting localized states of emergency in areas experiencing particularly high levels of violence (Jamaican Gleaner 2019). The emblematic indicator of Jamaica’s violence problem is the country’s homicide rate. In recent years, Jamaica has vied with El Salvador, Honduras, Venezuela, and South Africa for the highest rate in the world. Figure 2 shows these countries’ recent homicide rates, together with the much lower rates in the United States and Canada.
Homicide rates in selected countries.
Jamaica was not always such a violent society. When the country gained independence in 1962, the homicide rate was 4.6 per 100,000 people. As Figure 3 shows, the rate increased significantly following independence, with a sustained increase between 1990 and 2004, and it reached exceptionally high levels during the last few years of the 1970s, from 2004 to 2010, and from 2015 to 2018.
Homicides in Jamaica, 1972–2023.
The conventional wisdom is that homicide rates in the Caribbean, in general, and in Jamaica, in particular, are influenced heavily by nonlegal factors such as economic growth, income inequality, the size of the youth population, and urbanization (Soares and Naritomi Reference Soares, Naritomi, Di Tella, Edwards and Schargrodsky2010, 40–46; Patterson Reference Patterson2019, 138–42). Cross-country comparison suggests that Jamaica is exceptional along several of these dimensions. Since it attained independence in 1962, the country has experienced low rates of economic growth and high levels of inequality and urbanization (Patterson Reference Patterson2019, 141–42). At the same time, Jamaica has higher homicide rates than many other countries with similar demographic characteristics and levels of economic development, poverty, and inequality (UN Office on Drugs and Crime and World Bank 2007, 32; Jaitman Reference Jaitman2018). Consequently, it is far from clear that the domestic economic, social, or legal factors usually emphasized in cross-country analyses can explain Jamaica’s remarkably high homicide rate.
Domestic criminal law
The cross-country literature suggests that, to the extent that homicide is influenced by legal factors, the relevant factors are the size of the police force, the prevalence of incarceration, the effectiveness of the judiciary, the government’s overall integrity, and, perhaps, the harshness of penalties (Soares and Naritomi Reference Soares, Naritomi, Di Tella, Edwards and Schargrodsky2010, 40–46; Patterson Reference Patterson2019, 138–42). It is unclear to what extent these factors explain Jamaica’s situation. On the one hand, some sources characterize the Jamaican criminal justice system as over-burdened and the police as corrupt and abusive (UN Office on Drugs and Crime and World Bank 2007, 111–12). On the other hand, authoritative international sources suggest that the Jamaican police are relatively effective and that the courts and prosecutors are not corrupt.Footnote 29 The question of whether the penalties prescribed for homicide influence the homicide rate in Jamaica is even more complicated. Jamaican law has provided for the death penalty for murder since colonial times, and the relevant laws remained in force after independence (J. Campbell Reference Campbell2015, 441). The Constitution provides for several fundamental rights and freedoms, including the right to life, but its terms strongly suggest that recognition of those rights was not intended to affect laws or practices relating to the death penalty.Footnote 30 Despite these laws, however, no one has been executed in Jamaica since 1988 (Amnesty International 2018).Footnote 31 The story of how this came to pass provides our first illustration of the potential relationships between foreign and domestic laws.
The death penalty has long been a hotly contested political issue in Jamaica. Local actors have launched several initiatives to abolish the death penalty,Footnote 32 and they made significant progress in 1992 when the scope of the mandatory death penalty was narrowed dramatically.Footnote 33 However, the Jamaican House of Representatives voted against abolition in both 1979 and 2008.Footnote 34 Moreover, in 2011, Parliament amended the Constitution to adopt a Charter of Fundamental Rights and Freedoms that explicitly shielded the death penalty from scrutiny based on delay or conditions of detention.Footnote 35 Throughout this period, Jamaican politicians cited popular support for the death penalty and the island’s high rate of violent crime as justifications for retention (see Burkeman Reference Burkeman2002; Luton Reference Luton2008, quoting remarks by Alva Ross, Dudley Thompson, and Ferdie Neita, members of parliament).
Local debates about the death penalty in Jamaica—as well as elsewhere in the anglophone Caribbean—have taken place against the backdrop of significant interventions by the Judicial Committee of the Privy Council and international human rights tribunals (Simmons Reference Simmons2000; Knowles Reference Knowles, Hodgkinson and William2004, 282–308; Amnesty International 2018). The watershed was the 1993 decision of the Judicial Committee of the Privy Council in Pratt and Morgan v. Attorney General for Jamaica.Footnote 36 In that case, the Judicial Committee unanimously decided that execution of a person more than five years after being sentenced to death would violate their constitutional right to be free from “inhuman or degrading punishment or other treatment,” even if that period included appeals and petitions to international bodies initiated by the convict.Footnote 37 The direct effect of this decision in Jamaica was to require commutation of the sentences of over 150 people who had been on death row for longer than the stipulated five-year period (Simmons Reference Simmons2000, 271n43).
The decision also had the practical effect of halting further executions because condemned people were entitled to delay execution for more than five years by appealing consecutively to international human rights tribunals—specifically, the UN Human Rights Committee and the Inter-American Commission on Human Rights (Simmons Reference Simmons2000, 283–84; Helfer Reference Helfer2002, 1872–77). In subsequent decisions, the Judicial Committee held that convicts had a right to petition international human rights bodies before being executed,Footnote 38 that it was unconstitutional to make the death penalty mandatory,Footnote 39 and that the penalty could only be imposed in cases involving the “worst of the worst” or the “rarest of the rare” where there was “no reasonable prospect of reform.”Footnote 40 Jamaica pushed back on these rulings by withdrawing from the Optional Protocol to the International Covenant on Civil and Political Rights, the instrument that made it possible for Jamaican convicts to petition the UN Human Rights Committee, and by amending the constitutional provisions that the Judicial Committee relied upon to thwart executions (without reinstating mandatory capital punishment) (Simmons Reference Simmons2000; Robinson, Bulkan, and Saunders Reference Robinson, Bulkan and Saunders2015, 245).Footnote 41
The Judicial Committee’s Caribbean death penalty jurisprudence developed against the backdrop of a shift in European law toward abolition of the death penalty and heightened scrutiny of the death penalty by human rights bodies and some of the national courts in the region (Inter- American Commission on Human Rights 2011, paras. 20–21, 23–38). It also was shaped in response to advocacy by, on one side, the legal representatives of Caribbean governments and, on the other side, Caribbean death row convicts and their defense counsel. The defense teams included Caribbean lawyers, but they were supported by a dedicated cadre of lawyers and international human rights non-governmental organizations based in London.Footnote 42 From the perspective of the Judicial Committee at least, the London-based lawyers played a critical role. In a case from the Bahamas, Lord Steyn said that the Judicial Committee was “crucially dependent” on the “invaluable” contributions of London-based lawyers. He went on to say: “[I]ndeed without [the service rendered by these lawyers] the petitions and appeals from Caribbean countries could not be considered properly.”Footnote 43 This story of how British judges and lawyers, who were themselves influenced by legal diffusion from Europe and elsewhere in the Caribbean, halted the application of the death penalty in Jamaica illustrates one of many ways in which foreign laws can influence the evolution of domestic laws.
Ultimately, though, it is unclear whether these changes in Jamaican law had a significant influence on the prevalence of homicide. On the one hand, the suspension of executions in 1988 coincided with the beginning of a period of sustained increase in the homicide rate. On the other hand, literature from other countries casts doubt on whether there is any causal connection between laws concerning the death penalty and the prevalence of homicide (Donohue and Wolfers Reference Donohue and Solfers2009, Greenberg and Agozino Reference Greenberg and Agozino2012).
Foreign law
Social scientists who have focused on the determinants of levels of homicide in Jamaica and variations in those levels over time have identified several factors besides the economic, demographic, and legal factors emphasized in the more general literature summarized above. These factors include the structure of partisan politics, economic crises, illicit trade in firearms and drugs, deportations, extraditions, and cross-border fraud. As we shall see, all of these factors are, to some extent, influenced by foreign law, whether through diffusion, extraterritorial regulation, or international regulatory spillovers.
Constitutional framework and partisan politics
The increase in the rate of violent crime following independence was driven by a combination of economic and political factors (Thomas Reference Thomas2011, 34–38; Edmonds Reference Edmonds2016; Gibson and Grant Reference Gibson and Grant2018, 59). Shortly after the introduction of universal adult suffrage in 1944, two main political parties emerged: the Jamaica Labour Party (JLP) and the People’s National Party (PNP). Both parties soon began to engage in various forms of political violence, mainly aimed at disrupting meetings of the opposing party (Sives Reference Sives2010, 17–23). Over the next three decades, tensions rose as rural-to-urban migration and a slowdown in economic growth in the 1960s led to the emergence of a large population of poor, under-employed, and unemployed people in the western parts of Kingston, the capital city. The political parties began to battle for control of these areas.
The 1962 Constitution, which was the product of negotiations between the United Kingdom and Jamaican representatives, “locked in a two-party system” by formalizing the position of the leader of the opposition and giving them the power to nominate a sufficient number of senators to be able to block, or at least delay, key constitutional amendments.Footnote 44 After independence, levels of political tribalism increased as first the JLP and then the PNP governments preferentially allocated public benefits, such as public contracts and housing, to their supporters. The distinctively Jamaican form of political clientelism reached its pinnacle with the construction of housing projects that were allocated almost exclusively to the supporters of one party, with violence often being used to drive out members of the disfavored party. The JLP moved first by creating an enclave called Tivoli Gardens. The result was the emergence of so-called garrison communities: enclaves dominated by people affiliated with a single political party and engaged in violent conflict with neighboring communities (Sives Reference Sives2010; Thomas Reference Thomas2011).
Levels of violence increased in the 1970s as pre-existing social divisions were exacerbated by the ideological polarization and economic hardship that marked the successive administrations of Michael Manley, a member of the PNP, who was prime minister of Jamaica from 1972 to 1980 (Sives Reference Sives2010, 78–117). Manley’s embrace of democratic socialism and overtures to Fidel Castro led his political opponents to ratchet up ideological tensions by labelling him as a dangerous communist. Tensions increased further in the latter part of the 1970s as the Jamaican economy fell into crisis, reflecting the impact of high levels of government spending, the oil crisis involving the Organization of the Petroleum-Exporting Countries, and capital flight. In 1977, Manley’s government felt compelled to seek a loan from the International Monetary Fund. The terms of the loan required the government to adopt austerity measures set out in a Structural Adjustment Program. The resulting declines in government expenditures and currency devaluations caused significant economic hardship. The combination of all these factors sparked an increase in partisan political violence—that is to say, violence committed by armed groups identified with political parties. In 1980, an election year, there were 889 homicides, up from 351 in the previous year (Sives Reference Sives2010, 107–17). After the 1980 election, politicians reduced their levels of support for gangs, and politics became a less significant driver of violence.
The UK-influenced provisions of the Jamaican Constitution may not have been the sole factors behind either the partisan politics or economic crises of the 1970s, but they were contributing factors (Ryan Reference Ryan1999; Girvan Reference Girvan2015). A constitutional framework that provided more space for additional political parties might have reduced the intensity of party affiliations. It is an open question whether UK law should be characterized as foreign law in relation to Jamaica around the time of independence. In other words, it is unclear whether embedding partisan polarization in the Jamaican Constitution should be characterized as the choice of Jamaican legislators rather than the result of British fiat. If we regard this as a Jamaican choice, then the ensuing consequences illustrate the potential effects of diffusion.
Importation of firearms
A high proportion of homicides in Jamaica involve the use of firearms.Footnote 45 Since the mid-1970s, Jamaica has had relatively strict gun laws (Calathes Reference Calathes1990). During the period of partisan violence in the 1970s, and particularly in the lead-up to the 1980 elections, most illegal firearms were obtained from politicians intent upon arming their supporters. More recently, members of the police and the army have been implicated in trafficking firearms and ammunition, along with a variety of private actors (Leslie Reference Leslie2010, 41–46). The majority of the illegally imported firearms appear to originate in the United States, sometimes after passing through Haiti or another country (Ahmed Reference Ahmed2019; US General Accounting Office 2024, 13). In 2009, US authorities stated that most guns seized in Jamaica were traced back to three counties in Florida with large Jamaican populations, where a combination of lax gun laws and the weak enforcement of prohibitions on unlicensed gun exports facilitated smuggling (Leslie Reference Leslie2010, 41, citing Jamaica Observer 2009). This suggests that the combined effect of the content and the enforcement of US laws governing the purchase and exportation of firearms and the structure of the diaspora is a significant determinant of the availability of firearms in Jamaica, a classic example of a regulatory spillover.
International drug trafficking
Violence in Jamaica is frequently associated with trade in illicit drugs. Beginning in the 1960s, Jamaica became a significant producer and exporter of marijuana, also known locally as ganja. Although partisan political violence was the main causal factor, some of the increase in violent crime during the 1970s was associated with conflicts between gangs over the trade in marijuana. After 1980, for many gangs, revenues from the drug trade replaced resources that were previously provided by politicians (Brana-Shute Reference Brana-Shute and Ivelaw2000, 97, 102–5; Sives Reference Sives2010, 133–35). Marijuana exports to North America fell dramatically in the 1980s, coinciding with an increase in US interdiction efforts and a concomitant increase in domestic production in the United States (Morris Reference Morris1994, 140–46). Around that time, however, Jamaica, along with other Caribbean countries, also began to serve as a transshipment point for cocaine produced in South America and shipped to the United States, Canada, and the United Kingdom. In the Jamaican case, the level of cocaine trafficking jumped after the 1980 election when several politically affiliated gunmen emigrated from Jamaica to the United States. Once there, they created transnational networks that accounted for significant portions of the US supply during the 1980s and 1990s (Harriot Reference Harriot1996, 67–68; Sives Reference Sives2010, 133–35; UN Office on Drugs and Crime 2012, 66). Jamaican gangs such as the Shower Posse became infamous for their brutality, both in Jamaica and the United States.
There was a significant drop-off in the amount of cocaine shipped through Jamaica after the turn of the century. The UN Office on Drugs and Crime (2012, 20, 40, 65–66) estimates that by 2007 less than 1 percent of the US supply of cocaine flowed through Jamaica, down from 11 percent in 2000. They attribute the decline largely to an increased enforcement effort on the part of the United States and the United Kingdom (40). Some of the US enforcement activity involved not only collaboration with Jamaican authorities but also operations in Jamaican territorial waters pursuant to a 1997 “Shiprider” agreement between Jamaica and the United States (Haughton Reference Haughton2011). Interestingly, the decline in cocaine shipments coincided with a spike in the level of homicides in Jamaica. A possible explanation is that the disappearance of opportunities in the drug trade prompted criminal groups to fight over opportunities to engage in other illicit activities (UN Office on Drugs and Crime 2004, 66). Moreover, even after this decline in the Jamaican drug trade, Jamaica continued to have the highest per capita rate of drug seizures in the entire Latin America and Caribbean region (Patterson Reference Patterson2019, 150–51). Consequently, although increased domestic and extraterritorial enforcement of drug laws by the United States and the United Kingdom may have influenced the Jamaican homicide rate, the direction of the effect was, at least initially, counterintuitive.
Deportees
The steady increase in violent crime that began in the 1990s is sometimes linked to another external factor with legal antecedents: an increase in the number of people deported to Jamaica from overseas and, in particular, from the United States, the United Kingdom, and Canada (Logan, Bain, and Kairies, n.d.; Nurse Reference Nurse2004, 8; Blake Reference Blake2017; Morris-Francis 2018, 169). The number of deportations from the United States to Jamaica doubled from 1994 to 2004, and deportations from the United Kingdom increased significantly in the 2000s (Headley and Milovanovic Reference Headley and Milovanovic2016). Between 2000 and 2014, forty-five thousand people were deported to Jamaica, and a 2016 study estimated that criminal deportees represented approximately 2 percent of the island’s population (Burt et al. Reference Burt, Mark Sedra, Hernandez-Ramdwar, Seepersad and Wortley2016).Footnote 46
The increase in the inflow of deportees was at least in part a result of changes in the deporting countries’ laws and policies. Most notably, in the United States, a series of reforms between 1986 and 1996 made it mandatory to deport non-citizens convicted of specified types of crimes and expanded the range of crimes that could trigger deportation (Blake Reference Blake2014). The rise in deportations from the United States and the United Kingdom was also driven by crackdowns on Jamaican drug traffickers (Harriot Reference Harriot1996, 67–68). Of course, the crackdowns, and perhaps also the changes in immigration laws, may have been induced to some extent by increases in the level of activity on the part of Jamaican traffickers, and so the resulting deportations cannot be characterized as a wholly exogenous influence on criminal activity in Jamaica.
There is a widespread perception, supported by a modest amount of statistical evidence, that increases in the number of deportees are causally connected with increases in crime rates in Latin America and the Caribbean (Eldemire Reference Eldemire2018; Weiner Reference Weiner2018; Ambrosius and Leblang Reference Ambrosius and Leblang2019, Reference Ambrosius and Leblang2020). Even if this is true, however, it is unclear which portions of the deportee population are responsible for these effects, the extent to which deportees are the perpetrators as opposed to the victims of the additional crimes, and whether the relationship between deportation and crime can be affected by measures designed to reintegrate deportees into the local population (Morris-Francis 2018). For present purposes, the key point is that the laws and enforcement practices of the deporting countries determine the number and characteristics of deportees, which is another instance of an international regulatory spillover.
Extradition and the Tivoli Incursion
Homicide rates in Jamaica fell dramatically beginning in 2010. The critical juncture was the Tivoli incursion, an operation aimed primarily at fulfilling a request from the US government for the extradition of Christopher “Dudus” Coke.Footnote 47 The incursion involved approximately eight hundred soldiers and 370 police officers. During the course of the operation, sixty-nine civilians and three members of the security forces were killed. Coke was the leader of the Shower Posse, also known as the “Presidential Click.” He lived in a well-to-do neighborhood in the hills overlooking Kingston but maintained a base and additional residences in Tivoli Gardens, a neighborhood in West Kingston. Coke was the community’s leading don, known for not only asserting violent control over the neighborhood but also distributing benefits and resolving disputes. Tivoli Gardens, the first garrison community, was a JLP stronghold. At the time of the incursion, its parliamentary representative was Bruce Golding, the prime minister. Coke was known to be a strong supporter of the JLP and had a personal relationship with Golding.
The US government submitted its request that the Jamaican government extradite Coke on August 25, 2009. The request was based on an indictment issued in the Southern District of New York containing charges of trafficking in marijuana, cocaine, and firearms. The Jamaican government delayed compliance with the request for months, arguing that the evidence supporting the indictment was obtained in violation of Jamaican law.Footnote 48 The government, or perhaps the ruling party (it is not clear which), even went so far as to retain a US law firm to lobby the US government to cease pursuing the matter.Footnote 49 Finally, on May 17, 2010, following considerable pressure from the US government as well as Jamaican civil society, the prime minister gave a televised address indicating that the government would proceed with the extradition, and, on May 18, 2010, the minister of justice authorized enforcement of the warrant. Shortly after the Jamaican government received the US request for extradition, Coke took refuge in Tivoli Gardens. After the prime minister’s announcement, his supporters began to mobilize. They blocked the entrances to Tivoli Gardens and built fortifications that included sandbags, explosives, and live electrical wires. There were reports that approximately three hundred fighters from outside the area came to offer support, motivated by promises of monetary payments. They were armed with weapons that included AK 47s, grenades, and at least one .50 caliber sniper rifle (Western Kingston Commission of Enquiry 2016, 35–47, 92–135).
On May 23, several police stations in West Kingston were attacked by groups of armed men, and shots were fired at the Jamaica Defense Force headquarters as well as the nearby police barracks. Two police stations were completely destroyed by fire, and four other police stations as well as downtown Kingston’s main market were damaged. Two groups of police officers were ambushed, and two officers were killed. That evening, the prime minister announced the declaration of a state of emergency covering the Kingston area (Western Kingston Commission of Enquiry 2016, paras. 4.8–4.43). At 11 a.m. on the morning of May 24, 2010, a combined force of soldiers and police officers mounted an assault on Tivoli Gardens. They were equipped with armored personnel carriers and a front-end loader, and, in the first two hours of the assault, they fired thirty-six mortar rounds.Footnote 50 In addition, a surveillance plane operated by the US Department of Homeland Security relayed information to the Jamaican forces and made a video recording of part of the operation (Schwartz Reference Schwartz2013). The initial assault was met with heavy gunfire and Molotov cocktails, and the security forces were unable to secure control of the area until the evening of May 25 (Western Kingston Commission of Enquiry 2016, paras. 4.44–4.119). Schools and public institutions in the area did not fully resume operations until June 7 (UN Economic Commission for Latin America and the Caribbean 2010, 3).
The immediate benefits from the Tivoli incursion were limited, and the costs were substantial. Most notably, Coke escaped; he may not even have been in Tivoli when the operation began. He was not captured until twenty-nine days later, outside of Kingston traveling toward the city (Western Kingston Commission of Enquiry 2016, para. 13.46). On the other side of the balance, the costs of the operation were high. The economic costs included extensive property damage in the area of the operations as well as adverse effects on tourism.Footnote 51 However, the greatest costs came in the form of lives lost unnecessarily. A Commission of Enquiry formed to investigate the matter concluded that, of the sixty-nine civilians killed during the operation, at least fifteen were probably the victims of unjustified intentional killings after the neighborhood was under the control of the security forces (paras. 10.111–10.113).Footnote 52 Evidence of the extrajudicial killings includes firsthand accounts, together with the nature of the victims’ injuries and the absence of forensic evidence that they were armed. In fact, a remarkably small number of weapons were recovered in Tivoli Gardens after the operation: in the first three days, only six firearms were found, and, even after two months, no more than 115 firearms had been recovered (paras. 5.77–5.82).
The longer-term benefits of the Tivoli incursion were more substantial, as reflected in the decline in the homicide rate from 2010 through 2014. Coke was ultimately extradited to the United States, tried and sentenced to twenty-three years in prison (Whyte Reference Whyte2012). The combined effects of the security forces’ operation and the capture and imprisonment of Coke appear to have destroyed his gang. And in the aftermath of the Tivoli incursion, the police made concerted efforts to oust other dons (Meikle and Jaffe Reference Meikle and Jaffe2015). They also established a physical presence in garrison communities from which they had previously been absent and stepped up community policing initiatives designed to provide public services previously provided by dons (Meikle and Jaffe Reference Meikle and Jaffe2015). The catalyst for all these events was an extradition request from the US government, a straightforward example of US law enforcement influencing Jamaican law enforcement, which, for present purposes, qualifies as a form of diffusion.
Cross-border fraud
In recent years, homicide in Jamaica has continued to be associated with organized crime, but an increasing proportion of the underlying disputes concern cross-border fraud rather than drug trafficking (Bourne et al. Reference Bourne, Chad Chambers, Sharpe-Pryce and Solan2013; Chappell Reference Chappell2017; Eldemire Reference Eldemire2018). In the most common version of the fraud, “scammers” in Jamaica call people in the United States or Canada and advise them that they have won a prize in a lottery but will have to pay money in advance in order to collect the winnings. To avoid raising suspicions, the calls are often made from telephone numbers with US area codes, and the callers ask for funds to be sent to friends or accomplices in the United States. The victims are often elderly Americans, and some have lost hundreds of thousands of dollars (Weiner Reference Weiner2018). The execution of these schemes requires a fair amount of sophistication and organization. Different people may compile lists of potential targets (known as “lead sheets”), place calls, pose as the callers’ supervisors when victims complain, receive the funds from victims, or collect the money when it is ultimately transferred to Jamaica (Bourne et al. Reference Bourne, Chad Chambers, Sharpe-Pryce and Solan2013, 3239; Lewis Reference Lewis2020). In 2012, the Jamaican government estimated that Jamaicans earned three hundred million US dollars annually from these kinds of cross-border frauds (Jamaica Information Service 2012).Footnote 53
Telemarketing fraud is concentrated in the western part of Jamaica and, especially, in the parish of St. James, the location of Montego Bay, Jamaica’s second largest city. The location is not accidental (Lewis Reference Lewis2020, 59–77). St. James is the center of two industries that specialize in training people to deal with customers in the United States and Canada: tourism and call centers. Many scammers have simply redirected their customer service skills—familiarity with North American language and culture as well as the ability to deliver a convincing sales pitch and to placate disappointed customers—to nefarious purposes (59–77). There is a strong link between lottery scamming and violent crime (Eldemire Reference Eldemire2018). Conflicts over both lead sheets and division of the proceeds are often settled violently. For the past decade, St. James has had the highest homicide rate in the country, and much of the violence appears to be connected with the lottery scamming industry (Chappell Reference Chappell2017).Footnote 54 St. James was subject to a state of emergency aimed at controlling violence during most of 2018 and 2019 (Jamaica Information Service 2019).
Foreign enforcement agencies play a significant role in efforts to sanction telemarketing fraud. US and Jamaican agencies even created an international joint task force to implement a special project known as Jamaican Operations Linked to Telemarketing to address the problem (Federal Trade Commission 2009; Jones Reference Jones2016; US Embassy in Jamaica 2017). US prosecutors routinely seek extradition of Jamaicans who have defrauded US residents, and many of them have been prosecuted and sentenced in the United States (Weiner Reference Weiner2018). Foreign authorities also put pressure on multinational money transfer firms such as Western Union and Moneygram to adopt policies that hamper scammers’ efforts to use their services to transfer funds across the borders (US Department of Justice 2017; Federal Trade Commission 2018).Footnote 55 These foreign interventions were complemented by legislative reforms in Jamaica, but, in the absence of foreign assistance, Jamaican authorities would struggle to sanction cross-border fraud (Jackson Reference Jackson2016). First, the victims and much of the evidence typically are located overseas. Second, the profits from these schemes are so high that Jamaican police sometimes are tempted to demand a cut of the scammers’ proceeds instead of bringing them to justice (Hines Reference Hines2017).
Jovan Lewis (Reference Lewis2020, 178–83) suggests that there is a direct connection between foreign interventions and the violence associated with scamming. He argues that scamming only became associated with violence after 2013 when pressure from US politicians and the international financial community pushed Jamaican lawmakers, US and Jamaican enforcement agencies, and money transfer companies to crack down on scammers and brokers of lead sheets. Lewis argues that the resulting shortage of lead sheets prompted an increase in violent competition among scammers. This is an instance in which a combination of the diffusion of foreign norms and enforcement practices, extraterritorial regulation, and international regulatory spillovers appears to have exerted significant influences upon patterns of homicide in Jamaica.
Summary
The foreign laws that have influenced variations in Jamaica’s homicide rate over time have exerted their influence through all three of the mechanisms identified at the beginning of this article: diffusion, extraterritorial regulation, and regulatory spillovers. To begin, several of the laws have exerted their influence by way of diffusion through the Jamaican legal system.Footnote 56 For instance, the terms upon which Jamaica secured independence from Great Britain played a role in establishing the political polarization that led to the initial increase in homicides in the 1960s. Subsequently, legal developments in Europe and elsewhere in the Caribbean influenced Jamaican death penalty law through the jurisprudence of the Judicial Committee of the Privy Council. Then, at the operational level, the request for extradition of Christopher Coke dramatically affected the structure of Jamaican organized crime and thereby had a tremendous indirect effect on homicide in Jamaica. Later, externally supported changes in Jamaican legislation and enforcement practices may have influenced the level of violence associated with scamming. Foreign influence on local laws and enforcement practices is a familiar phenomenon in postcolonial societies, and Jamaica’s experiences with EU law, regional human rights law, and US law are variants on a common theme. However, the ways in which the decisions of national courts in neighboring countries have influenced Jamaican law through the Judicial Committee as well as Jamaican courts and legislators may be distinctively Caribbean.
Foreign laws have also affected local outcomes through extraterritorial regulation. Cases in which foreign governments have prosecuted people for committing homicide in Jamaica have not played any significant role in influencing homicide in Jamaica. However, extraterritorial enforcement of drug laws by the United States pursuant to the “Shiprider” agreement appears to have indirectly increased homicide by reducing shipments of drugs from or through Jamaica.
Perhaps the most striking lesson to be learned from this case study is how international regulatory spillovers can influence an activity such as homicide by affecting the movement of people, goods, capital, or communications across borders. It is difficult to understand homicide in Jamaica without taking into consideration US, Canadian, and British laws and practices concerning trafficking in firearms and narcotics, deportation, extradition, and cross-border fraud. The illicit trade in firearms has provided the means for killings. Conflicts over the proceeds of drug trafficking and cross-border fraud have provided the motives. US, UK, and Canadian law and practices surrounding deportation arguably have expanded the population of alienated crime-prone individuals.
Methodological implications
The preceding analysis suggests that the relationship between foreign law and events in Jamaica is an interactive one; foreign laws do not only influence events in Jamaica, but they also are influenced by them. Both kinds of influence ought to be accounted for in the design of legal research and not only in the Jamaican context.
Foreign influence on local activities
Foreign regulation has significant implications for legal analysis, whether it is motivated by practical or intellectual considerations. To begin, on a practical level, anyone deciding whether to engage in telemarketing fraud or drug trafficking in Jamaica, or contemplating what level of precautions to take against facilitating either kind of activity, ought to—and probably does—take into account not only the sanctions and enforcement practices of Jamaican legal institutions but also the sanctions and enforcement practices of US, UK, and Canadian institutions, both inside and outside of Jamaica.Footnote 57 Therefore, to the extent that an analysis of Jamaican law is designed either to inform the behavior of local actors or to capture local understandings of “the law,” it ought to include a description of foreign laws.Footnote 58
The variety of ways in which local outcomes can be influenced by foreign laws also complicates the task of studying the legal factors that cause those outcomes. Specifically, it is important to investigate the extent to which variations in outcomes are caused by variations in foreign laws as opposed to variations in purely domestic legal or non-legal factors. This means it is important to collect data on potentially relevant foreign laws. It is also important to design studies that can isolate the impact of those variations. So, for example, if the goal is to investigate the legal determinants of homicides in Jamaica, it is crucial to take into account foreign laws governing matters such as deportations and extraditions. Moreover, if the goal is to investigate the importance of non-legal factors—for example, education or inequality—it will be necessary to find a way to isolate the effects of foreign laws. In the context of a multi-country statistical analysis, this might involve finding a way to control for deportations and extraditions. In the context of a comparative case study, it might entail selecting a case that is subject to a similar set of external influences. For instance, there have been several comparative case studies of Jamaica and Barbados (Henry and Miller Reference Henry and Miller2009; Daniels, Trebilcock, and Carson Reference Daniels, Trebilcock and Carson2011; Dawson Reference Dawson2013). The argument here suggests that a comparison of Jamaica and the Bahamas might be more informative; because of its proximity to the United States, the Bahamas is affected by US laws concerning immigration, drugs, and firearms in ways that are more similar to how Jamaica is affected.
Local influences on foreign laws
Foreign regulation undermines the assumption that legal institutions generally are shaped by and reflect the aspirations and preferences of local actors. An extensive body of literature challenges this “mirror thesis” by documenting how foreign legal institutions and other powerful actors influence local law, whether directly or through international organizations (Siems Reference Siems2018, 229–302). Relatively little attention has been paid to how the development of individual countries’ laws is shaped by their relationship to foreign subjects, one of whose ramifications might be cross-border lobbying by foreign actors (Bradford Reference Bradford2020). Even the case study above leaves these sorts of questions unanswered. To what extent were reforms to US drug and immigration laws influenced by the activities of Jamaican posses during the 1980s? Why was the law firm retained by the JLP so unsuccessful in persuading the US government to relent in its pursuit of Coke? These questions, as well as similar questions stemming from the influence of US (or other countries’) law on other foreign subjects, deserve more attention in the comparative law literature.
Applications beyond homicide in Jamaica
Subject-based approaches to legal analysis that account for the regulation of cross-border activities can be applied to a wide range of subjects besides homicide in Jamaica or in countries like Jamaica. Legal diffusion and extraterritorial regulation may be most significant in former colonies or other countries with less prestigious legal cultures that lack the power to resist extraterritorial applications of legal norms (Monateri Reference Monateri2003; Siems Reference Siems2018, 241, 255). However, international regulatory spillovers can affect any subject that relates to cross-border flows of goods, services, capital, people, or ideas.Footnote 59 These kinds of spillovers certainly can affect subjects in countries that qualify as relatively powerful according to conventional criteria, which in turn suggests that the subject-based approach to legal analysis can be usefully applied to analyze how law influences a wide range of subjects in even the most powerful countries. So, for example, analyses of education in Europe during the 1920s ought to consider the incentives created by US immigration law’s literacy test. Similarly, efforts to understand the contemporary privacy practices of firms in the United States ought to account for the extent to which those firms do business in the EU and are subject to the Brussels effect (Davis and Marotta-Wurgler Reference Davis and Marotta-Wurgler2024).
Conclusion
This article aims to shed light on a fundamental question in legal analysis: what laws should be analyzed? The nationalistic source-based approach defines the sets of laws to be analyzed by reference to the nationalities of their sources. The thrust of the argument above is that, for many practical and intellectual purposes, it is preferable to treat the entire set of laws that affect a particular social phenomenon as the unit of analysis, whether those laws emanate from domestic or foreign sources, keeping in mind that the effects of foreign laws can arise from legal diffusion, extraterritorial regulation, or international regulatory spillovers.
The general point is that the subject-based approach is appropriate whenever the purpose of the analysis is to understand how legal determinants of action, or perceptions of those determinants, vary across societies. This means that the subject-based approach is most appropriate when the purpose of the analysis is to inform and guide the behavior of actors subject to the law. By extension, the same approach will be appropriate if the purpose of analysis is to describe the set of laws that guide the behavior of a particular set of actors. The subject-based approach is also appropriate when the purpose of the analysis is to explain the role that laws play in causing social outcomes; limiting such an analysis to domestic laws will mean omitting an important set of explanatory variables. This in turn suggests that the subject-based approach may also be useful for normative analysis; an argument for (or against) legal reform will be unpersuasive if it ignores a subset of the laws that affect the relevant domain of society.
Implementing the subject-based approach requires identifying and tracing the effects of foreign laws. These tasks are presumably less challenging when the foreign laws apply directly to local actors, such as in the case of extraterritorial regulation, than when their influence is mediated by other actors, such as in the case of diffusion or spillovers. Future research may wish to explore the normative implications of various forms of direct and indirect foreign influence—for example, extraterritorial regulation may be more difficult to justify than causing international regulatory spillovers.
The Jamaican case study illustrates these points by showing that it is impossible to understand the relationship between law and a prominent feature of Jamaican society—homicide—without taking into account all of the laws that affect homicidal behavior in Jamaica as opposed to just the laws adopted by Jamaican legal institutions. This has clear implications for the analysis of Jamaican law. If the purpose is to compare the legal consequences of homicide-related activities, to describe how the legal consequences of these activities vary, to explain variations in homicide across countries, or to support an argument for legal reform, then the analysis should take in account all the laws—domestic and foreign—that affect homicide-related activities in Jamaica. The case study also shows that identifying the relevant foreign laws and tracing their effects may involve highly contextualized social scientific analysis, particularly when those laws exert their influence indirectly through international regulatory spillovers. The merits of the subject-based approach are particularly visible in the Jamaican context because the society is so highly globalized, and its homicide rate is such an outlier. This mode of analysis is likely to be useful in other highly globalized societies, including in other Caribbean countries. However, the argument in favor of the subject-based approach to legal analysis rests on a more general insight about the implications of globalization for legal analysis.
Acknowledgments
Earlier versions of this article, under different titles, benefited from discussions at the Law and Society Association’s 2019 annual meeting, the 2020 annual meetings of the American Society of Comparative Law and the American Bar Foundation, the 2020 American Society of Comparative Law Work-in-Progress workshop and workshops at Duke University, McGill University, New York University, and the University of Chicago. I am grateful to Ajay Mehrotra, Ralf Michaels, Horatia Muir Watt, Tracy Robinson, Jacqueline Ross, Mortimer Sellers, Martin Sybblis, Catherine Valcke, and students in my law and development class for helpful comments. I am also grateful to Alexandre Abitbol, Laura Figueroa, and Jacquelyn Thorbjornson for research assistance as well as to the Filomen D’Agostino and Max E. Greenberg Research Fund at New York University’s School of Law for financial support. All errors remain my own.
Open access
