George P. Fletcher

Romantics at War: Glory and Guilt in the Age of Terrorism

Preface ix CHAPTER ONE: Wars Appeal 1 CHAPTER TWO: Irreconcilable Conflicts 26 CHAPTER THREE: Collective Crime 44 CHAPTER FOUR: The Guilt of Nations 71 CHAPTER FIVE: Individuals at War 92 CHAPTER SIX: Guilty Relations 117 CHAPTER SEVEN: Romantic Perversions 139 CHAPTER EIGHT: Distributing Guilt 157 CHAPTER NINE: Shadows of the Past 179 CHAPTER TEN: Living with Guilt 196 Notes 215 Index 241

Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory *

Western legal systems diverge radically in their approaches to setting limits on the privilege of self-defence. Some systems incline to the view that a person defending his or another life or property may use all the force necessary to stifle an aggressive attack. Taken to the extreme, this means that if there is no other way to apprehend a thief escaping with a petty bounty, one may shoot him—if necessary, shoot to kill. In contrast to this approach, which is adverse to limits on the use of necessary force, another set of Western jurisdictions insists that the degree of force meet two desiderata: it must be both necessary and proportional to the interest protected. The requirement of proportionality or reasonableness means that there are some cases, like petty thievery, where the cost of protecting a threatened interest may be so great that one must surrender the interest rather than inflict grievous harm on the aggressor.

Collective Guilt and Collective Punishment

Attitudes toward collective guilt in the Middle East require us to take a closer look at guilt in the Bible. It turns out the text of Genesis is conflicted. Some passages support a theory of guilt linked with the inevitability of cleansing and punishment; other passages appear to treat guilt as a psychological state that might be cured by a confession of sins. The tension is important today in trying to understand whether the collective guilt of nations should also entail collective punishment.

Our Secret Constitution

This book asserts that the Civil War marks the end of one era of American legal history, and the beginning of another. Abraham Lincolns famous Gettysberg Address is viewed as the beginning of a new kind of “covert” constitutional law – one with a stronger emphasis on equality in the wake of the abolition of slavery – which was legally established in the Amendments made to the U.S. Constitution between 1865 and 1870. The author asserts that the influence of this “secret constitution”, which has varied in degree from Reconstruction to the present day, is visible in the rulings of the Supreme Court on issues hinging on personal freedom, equality, and discrimination.

The Fault of Not Knowing

Despite the outpouring of interest in tort and criminal theory over the last thirty years, not much progress has been made toward understanding the basic concepts for analyzing liability. Common law theorists of torts and criminal law tend to accept the conventional distinction between objective and subjective standards and the view that objective negligence is not really fault in the way that subjective negligence is. The author’s view is that this distinction between objective and subjective standards is misunderstood and that, in fact, so-called objective negligence is a test of fault or culpability in the same way that subjective standards are. This paper seeks to defend inadvertent negligence as a proper basis for blaming someone for causing harm, whether in the context of tort law or criminal law, whether the standard is regarded as objective or subjective. The first part of the paper, the historical part, engages in an extended analysis of Oliver Wendell Holmes’ writings on negligence. The second part of the paper, the philosophical part, addresses the general question of how people can be considered at fault and be blamed for not knowing critical attributes of their conduct, which might be either matters-of-fact or matters of moral evaluation.

Criminal omissions: some perspectives

The new German Criminal Code contains a seemingly uncontroversial provision on liability for omissions: ? 13. (1) Whoever fails to avoid the occurrence of a result that conforms to the definition of an offense, is punishable under this Code if principles of right require him to make sure that the result does not occur and if the failure to act is [morally] equivalent to bringing about the prohibited result by affirmative conduct. (2) The penalty may be mitigated according to ? 49(1). This provision is addressed to the special problem of establishing liability under an offense defined in the special part of the code (e.g. homicide, arson, perjury). It does not consider the question when the legislature should prohibit passive conduct in speciallydefined crimes, such as the failure to render aid to others in an emergency.1 This latter problem is resolved in the legislative decision to penalize certain cases of omissive behavior. The problem assayed by ? 13 is the possibility of extending offenses of commission by recognizing a duty to avert the harm prohibited by the offense.2 Though there is a long history of punishing omissions in the cases covered by ? 13, this is the first legislative effort to come to grips with the problem. Though the provision hardly appears innovative or radical, it represents the culmination of a long process of debate and abortive attempts to subject the unruly field of omissions to the discipline of legislative language.3 By addressing ourselves to the issues resolved and left unresolved in this section of the new code, we shall uncover some important features of the new code and of

Responses to the critiques of the grammar of criminal law

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 McMahans work, for it is I who should be on the defensive here, not his individualist view. The thrust of McMahans 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 McMahans 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). …

Incantations of Loyalty@@@Loyalty: An Essay on the Morality of Relationships

At a time when age-old political structures are crumbling, civil strife abounds, and economic uncertainty dominates the news, loyalty offers us security in our relationships with associates, friends, and family. Yet loyalty is a suspect virtue. It is not impartial. It is not blind. It violates the principles of morality that have dominated Western thought for the last two hundred years. Loyalties are also thought to be irrational and contrary to the spirit of Capitalism. In a free market society, we are encouraged to move to the competition when we are not happy. This way of thinking has invaded our personal relationships and undermined our capacities for friendship and loyalty to those who do not serve our immediate interests. As George P. Fletcher writes, it is time for loyal bonds, born of history and experience, to prevail both over impartial morality and the self-interested thinking of the market trader. In this extended essay, Fletcher offers an account of loyalty that illuminates its role in our relationships with family and friends, our ties to country, and the commitment of the religious to God and their community. Fletcher opposes the traditional view of the moral self as detached from context and history. He argues instead that loyalty, not impartial detachment, should be the central feature of our moral and political lives. He claims that a commitment to country is necessary to improve the lot of the poor and disadvantaged. This commitment may well require greater reliance on patriotic rituals in education and a reconsideration of the Supreme Courts extending the First Amendment to protect flag burning. Given the worldwide currents of parochialism and politicaldecentralization, the task for us, Fletcher argues, is to renew our commitment to a single nation united in its diversity. Bringing to bear his expertise as a law professor, Fletcher reasons that legal systems should defer to existing relationships of loyalty. Surrogate mothers should not be