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

By George P. Fletcher | Go to book overview

FOUR
Political Theory

§4.1. The Relevant Categories

Criminal punishment has traditionally been the most elementary and obvious expression of the state’s sovereign power. As is evidenced by the ready appeal to punishment in the international community as well as in the European Union, the institution of punishment also provides an important medium for expressing the majesty of new superentities as well as of traditional states.

One would expect, therefore, that the theory of punishment and of criminal law would be high on the agendas of those interested in the philosophical foundations of the state. Yet in contemporary writing on political theory, particularly in English, neither criminal law nor criminal procedure receives much attention.1 The converse is also true: those

1 Notable exceptions are Nozick (1974) and Hart (1968). For a more recent attempt to lay a political foundation for the criminal law, see Braithwaite and Pettit (1990) (a republican theory of criminal law would seek to maximize individual “dominion” or liberty). For a critique of their views, see R. A. Duff, Penal Communications: Recent Work in the Philosophy of Punishment, 20 Crime and Justice 1, 20–21 (1996). See also Duff (2001). A republican approach to criminal law should perhaps be one of the themes of this chapter, but the content of the theory seems too ambiguous.

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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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