Responses to the critiques of the grammar of criminal law

Abstract

My readers have done me a great honor. They have read the first volume in the treatise I hope to complete on The Grammar of Criminal Law: American, Comparative, and International and they have stimulated me to see complexities in the argument that I previously did not detect. Their encomiums aside, the true respect for scholarly work is to read it seriously and to advance the learning of our profession by offering arguments and inviting me to reply. I Jeff McMahan and Jan Van Dijk I find it useful to group some of the essays together for they emphasize different sides of the same problem. Let me begin with the papers by McMahan and Van Dijk. McMahan has untiringly criticized my tendency to accentuate the collective dimensions of war and war crime. In conferences where we meet on the same panel and in this written collection, I can expect a critique from what I call the liberal individualist in the law of war. The liberal individualist holds that all soldiers act as individuals, which in turn generates serious problems explaining why soldiers are not liable for violent actions committed in the course of ordinary warfare. I will not address problems inherent in McMahan's work, for it is I who should be on the defensive here, not his individualist view. The thrust of McMahan's critique in these pages is that I exaggerate the possibilities of mitigation for collective guilt. One of the three factors I introduce--here and in other books and articles--is the possibility of mitigating the guilt of an individual, say, Eichmann, on the ground that an entire nation bears guilt for the Holocaust. Herbert Morris has already written a serious critique of this view and therefore I am not sure how much of this concern is still tenable. The second mitigating factor is the inverse doctrine of complicity, used once by the German courts in the Stashchynsky case. Lawyers sought to mitigate the guilt of the person who executes the crimes as an accessory relative to the commanding officer, the latter of whom must be seen as the principal directing the crime. This view was endorsed in an old German case, subsequently changed by legislation; so again I am not too sure of the viability of Stashchynsky doctrine. The third argument examines the responsibilities of commanders who oversaw mass atrocities, such as Sabra and Shatilla in the 1980 Israeli occupation of Lebanon, and ascribes to them less than full responsibility because other groups, namely the Phalangists, carried out the killing. The argument for mitigation typically holds that the commander is not responsible for the actions of intervening forces that actually carry out the bloody attacks on prisoners of war or a civilian population. I concede that McMahan has mounted this critique of mitigation effectively but it is not clear what remains of his thesis or even if he is strongly committed to the view that war consists always in a collection of individual actions and never in collective action. The debate is far from over, though the lines are clearly drawn. We are still looking for powerful arguments to defend either the collectivist vision of war or the liberal individualist view that every soldier fights with moral responsibility for his actions. The thrust of McMahan's argument in favor of liberal individualism minimizes the possibilities of mitigation by national guilt, by theories of complicity or by intervening causes. One consequence of his view is that whoever is responsible, the responsibility must be complete and unmitigated (or at least not mitigated by any of the arguments I have offered). In this respect I find a convergence between his critique and the thrust of the article by Jan Van Dijk on the role of victims in criminal trials. The encounter with Van Dijk was surely one of the most surprising of my professional life. Working independently and thousands of miles apart, we both discovered one of the most original linguistic features of modern criminal law in countries influenced by Abrahamic religions (Judaism, Christianity, and Islam). …