Two understandings of morality and their relationship to politics

Abstract

I Introduction Of many strands woven together George Fletcher's rich and complex book, Grammar of Criminal Law: American, Comparative and International, Volume One: Foundations (hereafter 'Grammar'), perhaps most prominent and pervasive is an argument about and elements in criminal and theory of crime. (1) According to that argument, concept of is primary whereas of thought is secondary [154]. The Fletcher tells us, addresses power and prerogatives of state officials ... [whereas] focuses on lives of both their personal flourishing and their relationships with other individuals [152]. priority of over moral--according to Fletcher--arises from central role of punishment identifying crime as a theoretically coherent organizing concept and criminal law as a discrete legal category. Because (he says) punishment is an rather than a form of behavior [194 n. 14], it belongs to rather than realm. At same time, because state is not only conceivable institution of punishment, a satisfactory answer to question of what justifies state (as opposed to other conceivable institutions of punishment) inflicting punishment on criminals needs to be offered before tackle questions of state is justified punishing and what. argument is completed by Fletcher's assertion that question, state?--like question, for what should state punish?--is political, whereas question, whom should state punish? is moral. At various points, Fletcher expresses considerable doubt about validity and force of his argument priority of over moral. In one place he says that it remains more an aspiration than a proven hypothesis [217]; (2) and another place he states that he have preferred a cleaner, simpler exposition of relationship between and moral [342]. Uncertainty is also displayed Fletcher's explicit equivocation about whether utilitarianism is better understood as a or a theory [193-98], and his statement that we see state's seeking to enforce principles of loyalty that suffuses as well [215]. Fletcher seems to understand argument priority of conceptual or analytical terms. I will approach it as such this essay--although conclusion I will raise question of whether argument would be better and more convincingly understood normative and strategic terms. Before assessing argument, need to give more careful consideration to concepts of the political and the moral and their cognates. Fletcher has relatively little to say about beyond definition given first paragraph of this essay. That definition prompts various questions. For instance, why should concept of be restricted to state action? And why should it be understood as somehow independent of so that question of priority arises first place? However, since Fletcher's account of (that is, realm of state action) is reasonably straightforward and univocal, it is merely accepted what follows. Fletcher has rather more to say about morality; and because what he says has various strands, need to do some work clarifying dichotomy between and moral. In particular, I will argue that it is important to distinguish between two understandings of morality, which may refer to loosely (and purely convenience) as practice-dependent understanding and practice-independent understanding. Section II explains these two understandings of morality. Section III explores relevance of distinction between them to accounts of relationship between law and morality. …