Reflections on the grammar of criminal law

Abstract

George Fletcher preeminent contemporary criminal theorist. His work has had a major impact on all of us who pursue this field. (1) appearance of first volume of a projected three-volume work--a work whose declared aim is to elucidate deep structure, both syntax and semantics, of defining and punishing crime--is a major event in criminal theory world. (2) This book, most comprehensive and ambitious Fletcher has written since his hugely influential Rethinking Criminal Law, spurred, he tells us, by the need of a new species of literature will focus primarily on theoretical aspects of war against terrorism and international criminal law [vii]. staggering mass terrorism of September 11, 2001 and launch in following year of International Criminal Court constitute background against which Fletcher has undertaken this enormous project--to elaborate general principles of criminal should be recognized not only in International Criminal Court, but in all civilized nations [20]. Fletcher's unusual combination of a solid grounding in twentieth-century analytic philosophy with a spectacular fluency in intricacies of comparative criminal make him uniquely suited to carry through mammoth project he has launched in this first volume of Grammar of Criminal Law. Yet there are a dismaying number of difficulties in some of concepts Fletcher deploys and some of positions he takes. I am painfully aware root of these problems more likely my own lack of comprehension rather than any defects in Fletcher's conceptual apparatus. Accordingly, I have written this essay in hope of provoking a response will put an end to my interpretive problems. I Foundational Concepts Fletcher launches his work by identifying three ideas that lie, with an appropriate sense of abstraction, at basis of all systems of criminal law: aggression, consent, and self-defense. These three concepts provide a matrix for understanding entire criminal law [21]. They generate a legal order and are the basic ideas for constructing a national system of criminal law as well as constitut[ing] foundations of international criminal law [24]. Yet they present difficult problems of definition and understanding. Indeed, Fletcher tells us [p]robing foundations of these contested concepts primary reason for theoretical work in criminal law [24]. To control and prevent aggression--the violation of an individual's boundaries, including his person, his living space, and his property [22]--is task lies at very heart of criminal law. Consent, however, converts what would otherwise be aggression into legitimate and non-violative behavior. It functions as a denial of an element of an alleged offense. Self-defense, on other hand, concedes aggression and asserts it right to resist with counterforce, thereby functioning as a plea in confession and avoidance [25]. Official grows out of practices of self-help and self-defense. This development, says Fletcher, a process sufficiently complex and complicated to justify regarding by state as a fourth basic idea of criminal law. The contours of any system of criminal are defined, therefore, by ideas of aggression, consent, self-defense, and punishment [26]. (3) Why it precisely these concepts form basis for any system of criminal law? Are there other concepts ought to be added to these four? Is there, perhaps, an alternative set of concepts could equally well be taken as foundation for a criminal system? Consider, for example, concept of human action. Fletcher devotes a chapter to this concept, which he observes plays a role in virtually all systems of criminal law [267] and the first requirement of criminal liability [271]. …