Criminal Justice Ethics

George Fletcher emerges in his writing, as in his life, as a colorful and highly individual figure. The last thing one expects of him is the surrender of individual identity to an anonymous submersion in the collective. Yet doctrinally he is a collectivist. In his recent writings, he has been seeking to collectivize just about everything: action, responsibility, guilt, liability, self-defense, criminal punishment, international criminal law, action in war, war crimes, and so on. It is, however, only in the final section of The Grammar of Criminal Law, volume 1, that Fletcher discusses collective guilt and the alleged collective nature of the crimes within the jurisdiction of the International Criminal Court (ICC).1 Yet the penultimate sentence of the book promises that “in volume 2, in discussing specific crimes in international criminal law, I will address the way in which the collective guilt of nations and other groups should enter into the sentencing process of individuals charged with mass atrocities” [339]. Indeed, a review of the tables of contents for volumes 2 and 3 confirms that war and war-related crimes of international criminal law, both of which he understands in collectivist terms, will be the major preoccupations of these forthcoming volumes. Discussions of collective guilt and international criminal law therefore seem foundational to Fletcher’s project as a whole. Yet the discussions in the Grammar, volume 1, do not break new ground but merely recapitulate ideas and arguments that he has stated and defended at greater length in other recent work.2 Because I will focus in this article on Fletcher’s collectivist orientation toward war and the crimes of international criminal law, I will refer more often to the more extensive discussions of these issues in his other recent work than to the abbreviated discussions in the first volume of the Grammar. I think, however, that my arguments will be highly germane to Fletcher’s larger project in the three volumes of the Grammar, and that some of the objections I raise here anticipate problems that will arise in the subsequent two volumes. Before turning to war and international criminal law, it is worth observing how pervasive the collectivizing tendency has become in Fletcher’s work. His recent discussions of self-defense continue to defend the account to which he has been attracted for decades. He believes that individual self-defense is not justified solely by the rights or inviolability of the individual victim but by the imperative of defending the collective and its legal order, since “an attack against one is an attack against all,” so that a defense of one is also a defense of all.3 He argues that an “individualist” approach to the justification of individual self-defense is inferior to a “society-based” approach, partly because only the latter, he claims, can support a reasonable requirement of proportionality.4 Although it is frequently claimed that the right of national or collective self-defense can be understood by analogy with the more fundamental right of individual self-defense, Fletcher seems to see national self-defense as more basic and thus reverses the traditional direction of the analogy, claiming that “the individual right of self-defense makes sense as an extension of the idea that nations can use force to maintain dominance over their own people and their own territory.”5 Fletcher holds that domestic crime also has a collective victim, and that criminal punishment addresses the wrong, or harm, done to the collective rather than that done to the individual. He argues that “even if we subscribe to the importance of harm in defining crime, and harm means harm to a victim, justice nevertheless require[s] abstraction from the particular victim. In a homicide case, the issue at stake is the value of life in general, not the life of the particular decedent. It would be odd to claim that it would be a lesser crime, in principle, Collective Crime and Collective Punishment