Introduction

Criminal law has become codified law. Everyplace you go in the West-
ern world, you will find a criminal code that lays out the definitions of
offenses in the code's "special part" and prescribes general principles
of responsibility in the code's "general part." Germans are proud of
their code enacted in 1975. Americans cherish their Model Penal Code,
which has provided the model for the recent reform of criminal codes
in at least thirty-five states. The French show off a new 1994 code, as
do the Spanish in their 1995 innovation. One of the first items of busi-
Copyright © 1998. Oxford University Press, Incorporated. All rights reserved.

ness in the post-Communist countries of Eastern Europe is to adopt

new criminal codes to reflect their new emphasis on human rights and
the just treatment of criminal suspects.
One consequence of codification is that every country goes its own
way. Every country has adopted its own conception of punishable be-
havior, its own definitions of offenses, its own principles for determin-
ing questions of self-defense, necessity, insanity, negligence, and com-
plicity. Criminal law has become state law, parochial law. If there was
ever much unity among the countries that succeeded to the domain of
Roman law, there is none now. If there was ever a common vocabulary
and set of principles used by common law jurists, that commonality has
long since disintegrated. In the United States today, it is almost impos-
sible to find two states that have the same law of homicide. Every state
that has followed the Model Penal Code has amended and adapted the
model code to meet its own local preferences. The republics of the for-

Fletcher, George P., and George P. Fletcher. Basic Concepts of Criminal Law, Oxford University Press,
Incorporated, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/rug/detail.action?docID=271049.
Created from rug on 2022-11-10 16:37:04.
 4 Basic Concepts of Criminal Law

mer Soviet Union once had criminal codes that were, as the expressions
of a single centralized policy, by and large the same. Now as each in-
dependent state in the region drafts its own code, we await a cacophony
of policies and principles. Soon we will have as many bodies of criminal
law as there are distinct flags flying over sovereign states.
Yet as the world has in fact become more localized in criminal jus-
tice, the contrary aspiration has become stronger. The talk today in the
European Union is of the "Europeanization" of criminal law. How will
this form of legal unification be possible in the light of intense national
and cultural differences?
The thesis of this book is that there is already much greater unity
among diverse systems of criminal justice than we commonly realize.
In order to perceive this underlying unity, we must take a step back
from the details and the linguistic variations of the criminal codes. The
unity that emerges is not on the surface of statutory rules and case law
decisions but in the debates that recur in fact in every legal culture. My
claim is that a set of twelve distinctions shapes and guides the contro-
versies that inevitably break out in every system of criminal justice.
Whether you start from the Model Penal Code or the German Criminal
Code, you will inevitably confront disputes about these questions:
1. What is a rule of substantive (or material) criminal law? What
is a rule of procedural criminal law? How do we tell the difference?
2. How do we mark the boundaries of criminal punishment as op-
posed to other coercive sanctions, such as deportation, that are bur-
densome but non-criminal?
3. What is the difference between treating the suspect as a subject
and an object, both in terms of the criminal act and the unfolding
Copyright © 1998. Oxford University Press, Incorporated. All rights reserved.

of the criminal trial?

4. What is the difference between causing harm and harm simply
occurring as a natural event?
5. What is the difference between determining whether a crime,
or wrongdoing, has occurred, and attributing that wrongdoing to a
particular offender, that is, holding that person responsible for the
crime?
6. What is the distinction between offenses and defenses?
7. How should we distinguish between intentional and negligent
crimes?
8. Why should there be defenses both of self-defense and necessity,
and what is the distinction between them?
9. Why are some mistakes relevant to criminal liability and other
mistakes irrelevant?

Fletcher, George P., and George P. Fletcher. Basic Concepts of Criminal Law, Oxford University Press,
Incorporated, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/rug/detail.action?docID=271049.
Created from rug on 2022-11-10 16:37:04.
 Introduction 5

10. How should we distinguish between completed offenses and at-

tempts and other inchoate offenses?
11. What is the difference between someone who is a perpetrator
of an offense and someone who is a mere accessory to the offense?
12. In the end, how do we distinguish between legality and justice
in the criminal process?
Some of these distinctions may be difficult to understand. At this
stage, it is not important to grasp the full significance of all of them.
They illustrate the underlying thesis of this book that a basic set of
distinctions generates the "deep structure" of all systems of criminal
law. This is, as it were, the universal grammar of criminal law. As Noam
Chomsky developed a universal grammar underlying all the particular
languages of the world, here, in these twelve distinctions lies the gram-
mar of criminal law.
Understanding the deep, universal structure of criminal law pro-
vides an antidote for the positivist bias of recent decades. It is true that
every country has a criminal code, but these codes should be under-
stood as local answers to the universal questions that constitute the
foundation of criminal law. Different countries may pose different res-
olutions to the same twelve underlying distinctions, but these resolu-
tions on the surface of the law should not obscure the unity that un-
derlies apparently diverse legal cultures. If the basic questions remain
constant, then legal cultures have more in common than they might
otherwise think.
There are many reasons why students of criminal law should wel-
come this approach. Mastering these twelve distinctions will not only
enable the student to understand the grammar of the legal culture but
Copyright © 1998. Oxford University Press, Incorporated. All rights reserved.

also will facilitate appreciation of the unity of the world's legal systems.
Some students might object. I imagine various types of students and
their complaints:

Ms. Patriot: This student is simply interested in her own legal culture.
She does not want to learn the underlying grammar of legal cultures
around the world. To her, I say:
Good, perhaps you should be interested just in your own culture.
But this method of learning distinctions will enable you to appre-
ciate your local legislation as something more than just the arbi-
trary rulings of the legislature. In the local rules that you learn,
you will find a lasting message, a solution to a basic problem that
runs to the foundation of the legal system. You have reason to be
proud of your local law, for it represents an answer—and per-
haps the correct answer—to questions that criminal lawyers and
judges pose all over the world.

Fletcher, George P., and George P. Fletcher. Basic Concepts of Criminal Law, Oxford University Press,
Incorporated, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/rug/detail.action?docID=271049.
Created from rug on 2022-11-10 16:37:04.
 6 Basic Concepts of Criminal Law

Mr. Efficient: This student is concerned only about learning the local law
as quickly and efficiently as possible. All that counts is committing the
rules and precedents to memory so that he can spout them back on
examinations. To him, I say:
Good, I agree that this is an important value. Learn the law effi-
ciently. This method will help you do it. If you master the basic
skeleton of twelve distinctions and understand what they are
about, the data of your legal culture will provide the flesh for
your local body of law. It is easier to learn twelve distinctions and
their implications than to memorize, say, 200 distinct rules.
Ms. Professional: This hip student wants only to know how to prepare
and to try cases. She wants to get into court as soon as possible. What
is the use of all this theory? Teach me how to win cases, she insists. To
her, I respond:
Good, prepare to win cases. But you cannot prosecute or defend
unless you understand what is at stake when you argue basic
questions of law. Anyone can look up the rules in a handbook.
What you need to excel in court is an understanding of the
deeper dynamic of the law, the hidden structure that influences
and shapes the thinking of judges. If you delve into the deep dis-
tinctions that shape the contours of the law, you will have an
edge on the pedestrian lawyers who tread on the surface of the
law.
Mr. Sport: This guy is only interested in who wins and who loses. Why
should we care about the ideas of the law, when these ideas might not
impact on juries or judges who decide whether the defendant is guilty?
Copyright © 1998. Oxford University Press, Incorporated. All rights reserved.

To him, I reply:
Good, winning is what it is all about. But it is important to know
what the prosecution and the defense are actually winning and
losing. There is more at stake in the contests of the law than just
the fate of a single individual. When O.J. Simpson is found not
guilty, the repercussions are felt across the country. The conse-
quences hit those concerned about race, battered women, con-
trolling the police, and the reliability of the jury system. In all im-
portant cases, there is more at stake than one person's winning
or losing. Tennis may be only about the player who wins; the law
is also about the ideas that prevail.
Maybe these replies will win over the skeptics. Maybe not. The
better way to prove the merit of this approach to criminal law is to
immerse oneself in it. It should become obvious as we proceed that
mastering the deep structure of the law enables one to understand the
significance of local details and variations.

Fletcher, George P., and George P. Fletcher. Basic Concepts of Criminal Law, Oxford University Press,
Incorporated, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/rug/detail.action?docID=271049.
Created from rug on 2022-11-10 16:37:04.