Reflections on the Grammar of Criminal Law

George Fletcher is the preeminent contemporary criminal law theorist. His work has had a major impact on all of us who pursue this field. (1) The appearance of the first volume of a projected three-volume work--a work whose declared aim "is to elucidate the deep structure, both the syntax and the semantics, of defining and punishing crime"--is a major event in the criminal theory world. (2) This book, the most comprehensive and ambitious that Fletcher has written since his hugely influential Rethinking Criminal Law, is spurred, he tells us, by "the need of a new species of literature that will focus primarily on the theoretical aspects of the war against terrorism and international criminal law" [vii]. The staggering mass terrorism of September 11, 2001 and the launch in the following year of the International Criminal Court constitute the background against which Fletcher has undertaken this enormous project--"to elaborate the general principles of criminal law that should be recognized not only in the 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 the intricacies of comparative criminal law make him uniquely suited to carry through the mammoth project that he has launched in this first volume of The Grammar of Criminal Law. Yet there are a dismaying number of difficulties in some of the concepts that Fletcher deploys and some of the positions that he takes. I am painfully aware that the root of these problems is more likely my own lack of comprehension rather than any defects in Fletcher's conceptual apparatus. Accordingly, I have written this essay in the hope of provoking a response that 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 the basis of all systems of criminal law": aggression, consent, and self-defense. These three concepts "provide a matrix for understanding the 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] the foundations of international criminal law" [24]. Yet they present difficult problems of definition and understanding. Indeed, Fletcher tells us that "[p]robing the foundations of these contested concepts is the primary reason for theoretical work in the 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 the task that lies at the very heart of the 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 the other hand, "concedes the aggression and asserts that it is right to resist with counterforce," thereby functioning as a "plea in confession and avoidance" [25]. Official state punishment grows out of the practices of self-help and self-defense. This development, says Fletcher, is a process sufficiently complex and complicated to justify regarding "punishment by the state" as a fourth basic idea of criminal law. "The contours of any system of criminal law are defined, therefore, by the ideas of aggression, consent, self-defense, and punishment" [26]. (3) Why is it precisely these concepts that form the basis for any system of criminal law? Are there other concepts that ought to be added to these four? Is there, perhaps, an alternative set of concepts that could equally well be taken as the foundation for a criminal law system? Consider, for example, the 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 is "the first requirement of criminal liability" [271]. …