Basic Concepts of Criminal Law.

AuthorGreen, Stuart P.

BASIC CONCEPTS OF CRIMINAL LAW. By George P. Fletcher. New York: Oxford University Press. 1998. Pp. xi, 223. Cloth, $45; paper, $18.95.

There is something about the criminal law that invites comparative analysis. The interests it protects are so basic, and its concerns so fundamental, that it is natural to ask whether there are aspects of criminal law that are somehow universal. We want to know whether familiar concepts such as murder and manslaughter, intent and negligence, and insanity and mistake, are characteristic of other systems of criminal law as well, and, if so, what role they play there.

In the last generation, no criminal law scholar has made better use of comparative law techniques than George Fletcher, the Cardozo Professor of Jurisprudence at Columbia Law School. And, not coincidentally, no scholar has done more to define and probe the fundamental principles of our own system of criminal justice. Now, twenty years after the publication of his classic Rethinking Criminal Law,(1) Fletcher offers Basic Concepts of Criminal Law, a concise, fair-minded, and remarkably clear synthesis of virtually all of the major debates in contemporary criminal law theory.

Basic Concepts should be of interest to at least three groups of readers. The first group comprises students in advanced criminal law classes, who will benefit from Fletcher's gift for finding concrete language to explain abstract concepts. The second group consists of teachers and scholars of substantive criminal law, who will want to see how Fletcher has clarified and augmented many of the arguments first made in Rethinking. The third group is potentially much broader. The most novel and provocative feature of Basic Concepts is its claim to offer a "deep structure" or "universal grammar" of criminal law, one that "transcends the enacted law of particular states and countries" (p. 23) and "facilitate[s an] appreciation of the unity of the world's legal systems" (p. 5). This aspect of the book will be of interest to comparativists and theorists in various areas of the law, who share with Fletcher an interest in the possibility of finding timeless and universal principles that underlie their respective disciplines.(2)

The focus of this Review is on the claim of universality and the innovative theoretical framework on which that claim rests. Part I briefly describes the overall design of Fletcher's project, cataloguing its principal virtues and defects. Part II then explores the concepts of deep structure, universal grammar, and other kinds of human universals as they are used in other disciplines, including linguistics and anthropology. Finally, Part III seeks to test the validity of Fletcher's theory by applying it to a collection of seemingly anomalous criminal law practices and concepts from China, Japan, Iceland, Melanesia, and elsewhere. Through this process, I hope to demonstrate both the potential and the limitations of Fletcher's theory.


    For legal theorists, the goal of Basic Concepts is an enormously attractive one: to "take a step back from the details and the linguistic variations of the criminal codes" (p. 4), to apply "philosophical and conceptual analysis" (p. 23), and thereby find "an underlying unity," a "deep structure" or "universal grammar" (p. 5), a "philosophical dimension" (p. vii) common to "diverse systems of criminal justice" (p. 4). How is this goal to be pursued? Fletcher's approach is simple and elegant. Each of the twelve chapters of Basic Concepts deals with one of twelve "dichotomies" or "distinctions" that are said to "shape and guide the controversies that inevitably break out in every system of criminal justice" (p. 4).(3) These dichotomies, he says, form a common "deep structure" of criminal law. The issues raised by these dichotomies are resolved in different ways by different systems, thereby creating variations in "surface structure," or positive law.

    As a means for structuring his analysis, the dichotomy approach works superbly. By allowing the reader to focus directly on major points of controversy, the book offers considerable advantages over the more traditional "grand theory" approach to criminal law used in recent years by scholars such as Andrew Ashworth,(4) Hyman Gross,(5) Douglas Husak,(6) Nicola Lacey and Celia Wells,(7) Michael Moore,(8) Paul Robinson,(9) and, indeed, by Fletcher himself.(10)

    But the dichotomy approach has its drawbacks as well. First, it tends to impose a theoretical straitjacket, forcing Fletcher to contrive distinctions that do little to illuminate his subject. The "punishment versus treatment" dichotomy, for example, turns out to be little more than a vehicle for Fletcher's discussion of punishment, with the question of "treatment" quickly pushed to the periphery. The same can be said of his discussion concerning the "justice versus legality" dichotomy, in which Fletcher's focus is almost wholly on the meaning of legality.

    Second, there is, at times, a certain vagueness about the difference between surface and deep structure. Surface structure is supposed to be found in "statutory rules and case law decisions," whereas deep structure is said to be found in the "debates that recur in fact in every legal culture" (p. 4). But it is obvious that many of the questions Fletcher identifies as indicative of deep structure (e.g., "how should we distinguish between completed offenses and attempts and other inchoate crimes?" and "what is the difference between someone who is a perpetrator of an offense and someone who is a mere accessory to the offense?") are precisely the sort of questions that statutes and case law seek to resolve. What Fletcher presumably means -- although he is never particularly clear on this point -- is that deep structure consists not of the rules for determining, say, whether a defendant is a perpetrator or an accomplice, but simply of the fact that there are such distinctions in the criminal law, and that these distinctions can be observed widely, even universally.

    Third, the dichotomy format means that a handful of important issues either turn up in unexpected places (e.g., the discussion of both insanity and criminal omissions is found, curiously, in a chapter entitled "Subject versus Object"), or are left out entirely. Two omissions are particularly worth mentioning. One is Fletcher's failure to deal with the question of the extent to which criminal law is necessarily a matter of public rather than private law.(11) Another, even more important, omission is the almost complete lack of attention to the subject of specific offenses (even in a chapter entitled "Offenses versus Defenses"). As we will see below, if anything is universal in criminal law, it is almost certainly the prohibition of murder, rape, and other forms of violence.(12) Yet Fletcher offers few insights as to why some acts are widely (even universally) criminalized, while others are not.(13) Instead, like most contemporary criminal law theorists, he is preoccupied with the criminal law's general part.(14)

    Fourth, although the various horns of Fletcher's dichotomies frequently do delineate the range of choices that legal systems make with respect to specific issues in criminal law, there is little explanation of how and why particular systems make the choices they do within such ranges. To put it another way, while the dichotomy approach does a good job of explaining what is similar across systems, it is much less concerned with the way in which various universals express themselves differently in different environments.

    Finally, and perhaps most importantly, Fletcher fails to offer any meta-theory that would explain the deeper meaning of his dichotomies. For example, there is no explanation as to why the criminal law reflects these dichotomies and not others, whether the dichotomy structure is also characteristic of other areas of the law, and what the ultimate source of such dichotomies might be.(15) In the end, what Fletcher provides is an exceptionally well-informed and insightful collection of deep-seated and widely observed distinctions in criminal law. What remains unclear are his views on the larger significance of that collection.


    Early in Basic Concepts, Fletcher tells us that the "deep structure" or "universal grammar" he is pursuing is akin to Noam Chomsky's famous work in linguistics.(16) To assess Fletcher's project, then, it will be helpful to know both what these terms mean for Chomsky, and what they might mean to Fletcher. In addition, we will want to know something about other kinds of "human universals" that might be relevant to the study of criminal law.

    1. What Linguists Mean by "Deep Structure" and "Universal Grammar"

      As he himself has acknowledged elsewhere, Fletcher is hardly the first legal scholar to assert that he is pursuing a Chomsky-like project.(17) Yet such scholars have offered almost no discussion of either what the Chomskyian project actually consists of, or the extent to which Chomsky's work provides them with a plausible theoretical model.

      At the outset, it should be clear that linguists use the terms "deep structure" and "universal grammar" to refer to quite different concepts. Linguists attempt to offer an analysis of language that explains how and why certain word strings can be recognized as well-formed sentences by native speakers. Although there is an infinite number of sentences that can be formed in any language, it is possible to identify a finite collection of "phrase structure rules" and "lexical insertion rules" that build "base component" trees, the underlying structures of well-formed sentences.(18) These "deep structures," or "d-structures," are then converted into one or more actual sentences (known as "surface structures" or "s-structures") by the application of linguistic devices known as "transformations."...

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