George Fletcher’s Essays on Criminal Law
Editor: Russell Christopher
Publisher: Oxford, UK; New York: Oxford University Press, 2013. 352p.
Reviewer: Samuel H. Pillsbury | May 2014
This is a daunting book to review, but for good reasons. Though not especially long (276 pages of text, exclusive of endnotes) it is a very big book in terms of the depth, breadth, and variety of ideas presented. It contains the most important essays on criminal law of George P. Fletcher, one of the preeminent Anglo-American legal theorists of the late 20th and early 21st centuries. Each Fletcher essay is paired with a comment, some brief and others extended, by a leading criminal law scholar: Kyron Huigens, John Gardner, Larry Alexander & Kimberly Kessler Ferzan, Heidi Hurd, Susan Estrich, Victoria Nourse, Peter Westen, Alon Harel, Joshua Dressler, John Noonan, Alan Wertheimer, and Stephen Schulhofer. The book’s editor, Russell Christopher supplies a substantial introduction which not only provides a useful overview of the essays and commentator responses but considers something of Fletcher’s contribution to the field. The book closes with Fletcher reflecting on his own essays and responding to the commentators. With all this, the problem for the reviewer of where to start, what to cover and what to leave out is absolutely daunting.
I begin with the bottom line: whether the book is worth buying and reading. Yes to both. This is an essential work for any law library with a collection in American criminal law. It is an important book for scholars beginning work in the field who might not be familiar with Fletcher’s oeuvre (of which this is just a part). For those already engaged in criminal law scholarship, the book provides a useful collection of work that remains important, along with often provocative commentary.
I will not attempt here my own assessment of the individual Fletcher essays both because that would require a full-length article in itself (at least) and because it has already been done in the commentaries. Nor will I attempt a summary or overview of the whole. Criminal law theory requires slow, close work. Sweep too broadly, move too quickly in an effort to generalize and one is likely to miss the structure, detail and nuance that provide most of its analytic value. Instead I will consider the book from the viewpoint of a hypothetical young legal scholar embarking on a career in the field of Anglo-American criminal law. To an ambitious young professor this book might raise the question of what makes, what has made, George Fletcher so influential. Lots of scholars attempt legal theory and find that no one pays much attention. How does he do legal theory so that so many others listen and respond? And of course, the question that every young scholar must ask: What’s left for me to do?
Reading (or in many cases rereading) these essays which date from 1974 to 2005, one is immediately impressed with the sheer intellectual talent on display. Moving from one essay to the next is like viewing the highlight reel of an extraordinary athlete. You just want to say, Wow. But why? What kind of talent are we talking about?
Fletcher is first and foremost a brilliant reader and writer of law. He brings to the discussion almost unique qualities of confidence, clarity, quickness and fluency.
The confidence is apparent from start to finish. This is someone who appears never to have doubted himself when it comes to legal or philosophic analysis. Indeed, he says this in his final commentary: "I have not changed my mind often, whether this is to my credit or discredit." (270) Christopher in his Introduction confesses a personal frustration with Fletcher’s imperviousness to critique that no doubt many others in the field share. (20). While confidence can easily become arrogance, here it mostly just adds to the fun of watching a master at work. Fletcher spots fundamental issues that others have long missed or neglected, makes analogies and connections that open up broad new territories for exploration. Many have praised the fertility of his work on the distinction between excuse and justification in criminal defenses, but there is much more. For example, in his brief final commentary he makes quick references to three conceptions of criminal law that he labels the objective, choice and control theses – all flawed in his view – which raise a host of issues in criminal responsibility. There is much right here for our young scholar to ponder.
The clarity of Fletcher’s writing reflects the quality of his understanding. This does not mean that reading Fletcher is always easy – the nature of the ideas precludes that – but their expression is plain and careful. He is a verbal craftsman who uses words not to impress but to reveal.
Fletcher is a quick writer, meaning that he goes straight to the issue or issues that he sees as central, without detour or elaborate setup, without defensiveness or extended justifications. There is a constant temptation in legal writing to gather around oneself legal and other authority and to raise great defensive walls against anticipated objections, all of which can slow the argument considerably. Fletcher does not feel so tempted. While he does engage the legal and philosophic literature as (he believes) needed, he is not particularly generous in recognizing the work of others. Indeed, the reviewer is reminded of a response that the great tenor saxophonist Coleman Hawkins once gave to an interviewer who asked him why he did not invite other star players to play with him as many other jazz greats did. Hawkins said: because I don’t need to. Meaning, his own musical brilliance was sufficient to carry the day. And mostly it was.
Fletcher’s work is characterized by a particular kind of fluency in language and concepts. He attends closely to the meanings and connotations of legal words and phrases and then presents them clearly to the reader. He is also fluent in the legal language of a number of different nations and cultures, allowing him to make cross national comparisons that are rare in criminal law scholarship. Most importantly, Fletcher translates well. He is able to put foreign terms into language that makes sense to English speakers without losing critical differences in meaning and usage in the original. Fletcher is also fluent in the language and concepts of philosophy, though as we will see he uses philosophy in a different way than many modern theorists do.
Also key to Fletcher’s influence is the way that he does criminal law theory. He takes seriously the authority of law.
For a new scholar with theoretical ambitions, the problem of authority looms large. How do you build a foundation – and legal theory is foundational – if all the building materials (sources of authority) are potentially suspect? How do you handle the inevitable question at the inevitable workshop, that what you say is fine as far as it goes, but isn’t it true that your starting assumptions are all wrong?
There are several standard ways of handling this problem. In criminal law theory one might proceed by aligning oneself with a philosophic great. One might begin with Aristotle or Kant, or perhaps Dworkin or Rawls, to name just a few of the usual suspects. The ideas of these established figures supply working credibility to the contemporary writer. The scholar then may apply the great’s concepts to the legal problem at hand. Similarly, a scholar may take the insights of an established field outside of the criminal law, such as economic analysis or critical race or feminist theory or neuroscience and use these to provide both insight into and critique of the criminal law. This is not the way that Fletcher works, however.
Similar to H.L.A. Hart, Fletcher is a legal scholar who uses philosophic methods to work within the legal tradition rather than a philosopher who applies philosophy to law. To borrow an analogy that Fletcher uses in a different context (comparing the intellectual structure of Continental legal thought with that of the common law) Fletcher’s approach to theory is more horizontal than vertical. By this I mean he largely works within the structure and language of the law – the horizontal plane – rather than critique the law either from above (via moral philosophy or other theoretical fields) or below (via empirical methods).
Fletcher realizes that his approach is anathema to some legal theorists. But he is, as always, confident in its validity. He says that he follows the advice of his mentor Herbert Morris that, "when an intuition is deeply held, the task of theory should be to generate convincing arguments that those who hold the intuition may not be able to articulate themselves."(26) In doing legal theory, he argues that the "starting point should be not the writings of the great philosophers but rather the humble, not-fully-understood work of lawyers, legislators and courts. From the mundane we can derive deeper truths about the principles that drive the practice of punishing crime." (34)
Fletcher dramatically broadens the scope and value of his approach through comparative analysis. He looks to the legal systems of other nations and regions to contest the parochialism so deeply rooted in legal practice and commentary. To cite just one example of the fruits of this effort, see his comparison of the common law’s near obsession with reasonableness with the concept of Right that structures much of Continental law. (“The Right and the Reasonable,” 150-68).
Fletcher analogizes the legal theorist’s role to that of the theologian. He argues that lawyers, like theologians, place their faith in certain written texts. Each displays parochialism in elevating chosen texts to the highest stature while rejecting the authority of other texts. So it is that a Christian theologian will work almost exclusively with Christian scripture while an Islamic theologian works almost exclusively with Islamic scripture. Neither would look to the other’s texts for authority. Similarly, an American legal theorist generally immerses herself or himself in American or Anglo-American legal materials and does not look to the law or legal commentary of Germany or France, Russia or Japan. This helps explain the localism of legal thought, a frequent source of Fletcher pique. And yet, Fletcher argues, in theology the interpretation of authoritative texts does not – or should not – end analysis. He says of theologians: "[t]hey take their traditions seriously… And move beyond them in the direction of universal answers…." (25) Both theology and legal theory must reach for the universal, even if their foundational materials are limited to a particular faith, tradition, or jurisdiction. In both fields, this move to the universal is the most difficult and controversial.
Easily the most negative commentary in the book is Kyron Huigens’ response to Fletcher’s “The Nature and Function of Criminal Theory.” Huigens argues that Fletcher’s law-bound view of legal theory is opposed to the work of other legal theorists, most notably the great moral philosopher and theorist of law, Immanuel Kant. Huigens argues, per Kant, that legal theory aims to provide universal norms for the law. He finds Fletcher’s apparent refusal to seek such extra-legal norms inexplicable and indefensible.
I understand Huigens’ point, but think he has misread Fletcher at least in part. Yes, Fletcher eschews theorizing that seeks norms apart from the law, but Fletcher understands that the legal theorist cannot stop with the explication of extant legal rules and principles. He certainly does not in his work. He understands that theory must also criticize legal doctrine and principles. The problem, as always, is normative authority. Huigens and many others look outside the law for norms to judge the law. Fletcher, mostly, does not.
To the extent that Fletcher argues that his is the right way of doing legal theory (and I’m not sure he goes so far), Huigens’s critique is well taken. Much legal theory does strive for universal (extra-legal) norms to guide law. But that does not invalidate Fletcher’s method. There remain advantages to staying within legal bounds. Just as a poet may choose to be bound by the strictures of a sonnet or haiku form or verse that abides by the rules of terza rima or iambic pentameter because these push the writer to unique expressions and insights, so one might choose to work primarily with legal materials for the theoretic insights that these provide. True, this will not produce a set of universal norms, but it may make law more coherent and just in certain particulars, which surely is worth the effort.
I close with a particular suggestion of the richness of Fletcher’s approach. He complains in passing that criminal law theorists generally neglect political philosophy in favor of philosophy’s moral branch. (30-32) Fletcher notes that the criminal law helps define the state-citizen relationship; its authority is political as well as moral. He argues that political theory provides foundational concepts in criminal law, including the maxim that criminal law should punish wrongful acts and not character. I agree, but think we should question if criminal law necessarily abides by this precept.
Consider accomplice liability in the context of felony murder. Two teens contemplate a robbery. One has a gun and a robbery plan. The other agrees, reluctantly, to go along with the plan. The first pulls his gun, makes a demand for money and then unilaterally decides to shoot the victim. The second just stands there. Assume the victim dies. American criminal law holds both teens equally responsible for robbery and murder, usually first-degree murder. Any distinction in punishment depends on the exercise of prosecutorial discretion or, if available, judicial discretion at sentencing. The law of liability contemplates no distinction. Why? Surely not because they are equally culpable. I would argue that the moral sloppiness of criminal law here comes from character judgment. The criminal law allows us to call both of these individuals robbers and killers. In other words, they are bad guys. Which means that the public is likely to see culpability distinctions between them as details well left to the discretion of government actors (prosecutors and judges). So much for the notion that criminal law punishes bad conduct and not bad character.
Keeping the law true to its own ideals remains an essential part of the theorist’s work.
Professor of Law and Frederick J. Lower Fellow, Loyola Law School Los Angeles