The Grammar of Criminal Law: American, Comparative, and International

By George P. Fletcher | Go to book overview

ONE
Criminal Theory

In this first foundational chapter, we explore a series of trilogies, triadic possibilities in the structure of criminal law. The first set addresses three issues that lie, with an appropriate sense of abstraction, at the basis of all systems of criminal law. These three structural components—aggression, self-defense, and consent—provide a matrix for understanding the entire criminal law. The second trilogy addresses different types of criminal law, depending on whether the focus is on the act, the actor, or the actor’s culpability. All three are possible and all three variations can be found in existing systems of criminal law. The third section in this chapter considers different foci for thinking about why conduct qualifies as crime. These three approaches reflect different emphases: on violating a duty, causing harm, or infringing a norm. Each focus carries its own theoretical and moral significance.

Three different approaches to the general part have played a major role in the formative debates both of national legal systems and of international criminal law. A fourth approach—a holistic challenge that I have conceptualized myself—is also worth considering as a challenge to the prevailing orthodoxy. The three doctrinal systems have been the primary players, but a fourth argues from the wings that the primary three on stage have misunderstood what the play is about.

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The Grammar of Criminal Law: American, Comparative, and International
Table of contents

Table of contents

  • Title Page iii
  • Preface - Intellectual Journeys vii
  • Contents xxiii
  • I - Philosophical Foundations 1
  • Introduction 3
  • One - Criminal Theory 21
  • Two - Criminal Law 69
  • Three - Language 117
  • Four - Political Theory 151
  • Five - Moral Theory 190
  • II - Toward a Comparative Synthesis 219
  • Six - Punishment 221
  • Seven - The Act Requirement 266
  • Eight - Guilt 298
  • Self-Critical Conclusion 340
  • Bibliography 343
  • Index 359
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