Pub Date : 2019-11-11DOI: 10.1093/oso/9780190903572.003.0005
G. Fletcher
This chapter examines the problem of causation. An intelligent approach to drafting a criminal code deliberately avoids certain problematic philosophical issues. Among these are the nature of human action; the purposes of punishment; and, most importantly, the problem of causation. The problem of causation runs through the crimes defined by the Rome Statute. The issue is implicit, even if the drafter wisely declined to define the concept. It is obvious that a concern for impunidad and the fate of victims presuppose the harm that has occurred to a defined victim, which implies that the harm must have been caused by the crimes defined by the Rome Statute. The chapter then considers the notion of causal energy, which explains the rise of comparative negligence in tort law.
{"title":"Causation vs. Background Events","authors":"G. Fletcher","doi":"10.1093/oso/9780190903572.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780190903572.003.0005","url":null,"abstract":"This chapter examines the problem of causation. An intelligent approach to drafting a criminal code deliberately avoids certain problematic philosophical issues. Among these are the nature of human action; the purposes of punishment; and, most importantly, the problem of causation. The problem of causation runs through the crimes defined by the Rome Statute. The issue is implicit, even if the drafter wisely declined to define the concept. It is obvious that a concern for impunidad and the fate of victims presuppose the harm that has occurred to a defined victim, which implies that the harm must have been caused by the crimes defined by the Rome Statute. The chapter then considers the notion of causal energy, which explains the rise of comparative negligence in tort law.","PeriodicalId":356531,"journal":{"name":"The Grammar of Criminal Law","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116500306","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-11-11DOI: 10.1093/oso/9780190903572.003.0009
G. Fletcher
This chapter assesses whether the codification of criminal attempts in a statutory regime that emphasizes completed crimes with consequences to personal or property interests is appropriate. A quick look at the four crimes within the jurisdiction of the International Criminal Court (ICC), as described by the Rome Statute, reveals that they are about concrete harming: killing, torture, rape, and invasion. Some of the sub-crimes within these categories address completed actions even though the harm is less tangible. However, attempts are one form of inchoate offense, that is, offenses that fall short of causing the harm or engendering the victimhood that would come with the completed offense. The problem is always how much the actor must do on the spectrum—from thought through the various stages of action to the final result of causing harm or instantiating the required “consequence” of the completed offenses.
{"title":"Harming vs. Trying","authors":"G. Fletcher","doi":"10.1093/oso/9780190903572.003.0009","DOIUrl":"https://doi.org/10.1093/oso/9780190903572.003.0009","url":null,"abstract":"This chapter assesses whether the codification of criminal attempts in a statutory regime that emphasizes completed crimes with consequences to personal or property interests is appropriate. A quick look at the four crimes within the jurisdiction of the International Criminal Court (ICC), as described by the Rome Statute, reveals that they are about concrete harming: killing, torture, rape, and invasion. Some of the sub-crimes within these categories address completed actions even though the harm is less tangible. However, attempts are one form of inchoate offense, that is, offenses that fall short of causing the harm or engendering the victimhood that would come with the completed offense. The problem is always how much the actor must do on the spectrum—from thought through the various stages of action to the final result of causing harm or instantiating the required “consequence” of the completed offenses.","PeriodicalId":356531,"journal":{"name":"The Grammar of Criminal Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133326920","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-11-11DOI: 10.1093/oso/9780190903572.003.0011
G. Fletcher
This chapter discusses the distinction between accidents and mistakes. Much of the law of torts centers on negligent accidents—whether with cars, airplanes, guns, or simply walking on a slippery floor. The important feature of torts, as opposed to crime, is that there is no liability absent harm to the plaintiff. For example, there is no liability for merely attempting or risking harm. In domestic criminal law, accidents become relevant only in what can be called the pattern of harmful consequences, that is, where there is a causal chain between the action and the harm. Meanwhile, according to Article 31(1) of the Rome Statute, a mistake of fact is relevant only if it negates the mental element required for the crime.
{"title":"Accidents vs. Mistakes","authors":"G. Fletcher","doi":"10.1093/oso/9780190903572.003.0011","DOIUrl":"https://doi.org/10.1093/oso/9780190903572.003.0011","url":null,"abstract":"This chapter discusses the distinction between accidents and mistakes. Much of the law of torts centers on negligent accidents—whether with cars, airplanes, guns, or simply walking on a slippery floor. The important feature of torts, as opposed to crime, is that there is no liability absent harm to the plaintiff. For example, there is no liability for merely attempting or risking harm. In domestic criminal law, accidents become relevant only in what can be called the pattern of harmful consequences, that is, where there is a causal chain between the action and the harm. Meanwhile, according to Article 31(1) of the Rome Statute, a mistake of fact is relevant only if it negates the mental element required for the crime.","PeriodicalId":356531,"journal":{"name":"The Grammar of Criminal Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125458511","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-11-11DOI: 10.1093/oso/9780190903572.003.0012
G. Fletcher
This chapter examines the concept of complicity. The basic question is whether complicity is a crime in and of itself or a way of assisting another person to commit a crime. On the whole, the idea of complicity in the actions of another has become a standard part of modern legal and moral thought. One no longer thinks of individuals acting solely on their own account but of groups of people interacting in order to produce a crime of shared responsibility. This is particularly true in the crimes of genocide, aggression, and crimes against humanity. As for holding individual actors accountable, as Article 25 of the Rome Statute attempts to do, it would make sense to hold each liable for their causal role in the crime. That is, complicity should be seen not as a crime in itself but as a contribution to the crime of another.
{"title":"Perpetration and Complicity","authors":"G. Fletcher","doi":"10.1093/oso/9780190903572.003.0012","DOIUrl":"https://doi.org/10.1093/oso/9780190903572.003.0012","url":null,"abstract":"This chapter examines the concept of complicity. The basic question is whether complicity is a crime in and of itself or a way of assisting another person to commit a crime. On the whole, the idea of complicity in the actions of another has become a standard part of modern legal and moral thought. One no longer thinks of individuals acting solely on their own account but of groups of people interacting in order to produce a crime of shared responsibility. This is particularly true in the crimes of genocide, aggression, and crimes against humanity. As for holding individual actors accountable, as Article 25 of the Rome Statute attempts to do, it would make sense to hold each liable for their causal role in the crime. That is, complicity should be seen not as a crime in itself but as a contribution to the crime of another.","PeriodicalId":356531,"journal":{"name":"The Grammar of Criminal Law","volume":"237 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131865464","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-11-11DOI: 10.1093/oso/9780190903572.003.0007
G. Fletcher
This chapter addresses the distinction between offenses and defenses in criminal cases. The Rome Statute draws a clear line between the four crimes subject to the jurisdiction of the Court and the grounds for excluding criminal responsibility in Article 31. The significance of the distinction between these offenses and defenses should not be underestimated. For example, the principle of nullum crimen sine lege, which applies to the former but not the latter, as evidenced by Article 31(3) permits the recognition of new defenses at trial. The four classic defenses of insanity, intoxication, self-defense, and duress spelled out in Article 31 are subject to controversy. Among the major legal systems of the world, there is considerable divergence in approaching these issues. Meanwhile, there are two reasons for the nullum crimen principle. One is to warn defendants of their possible liability. The other is to control the discretion of judges.
{"title":"Offenses and Defenses","authors":"G. Fletcher","doi":"10.1093/oso/9780190903572.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780190903572.003.0007","url":null,"abstract":"This chapter addresses the distinction between offenses and defenses in criminal cases. The Rome Statute draws a clear line between the four crimes subject to the jurisdiction of the Court and the grounds for excluding criminal responsibility in Article 31. The significance of the distinction between these offenses and defenses should not be underestimated. For example, the principle of nullum crimen sine lege, which applies to the former but not the latter, as evidenced by Article 31(3) permits the recognition of new defenses at trial. The four classic defenses of insanity, intoxication, self-defense, and duress spelled out in Article 31 are subject to controversy. Among the major legal systems of the world, there is considerable divergence in approaching these issues. Meanwhile, there are two reasons for the nullum crimen principle. One is to warn defendants of their possible liability. The other is to control the discretion of judges.","PeriodicalId":356531,"journal":{"name":"The Grammar of Criminal Law","volume":"102 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117302230","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-11-11DOI: 10.1093/oso/9780190903572.003.0003
G. Fletcher
This chapter focuses on tort liability. In the international legal order, the tort regime is of particular importance. As we shall see, the Alien Tort Claims Act has a vital role to play either as a backup to a failed attempt at criminal prosecution or the inability to get jurisdiction over a defendant in hiding. Thus, the international regime of tort liability responds to the same concerns of “impunidad” as one finds in the Preamble of the Rome Statute. The chapter then looks at the concept of punishment. Punishment is the domain of criminal law. Liability in tort cases is not officially punishment. In fact, punitive damages imposed by an American jury can have more severe consequences than a brief period in jail. Yet the line between crime and tort is maintained strictly in American jurisprudence.
{"title":"Punishment vs. Tort Liability","authors":"G. Fletcher","doi":"10.1093/oso/9780190903572.003.0003","DOIUrl":"https://doi.org/10.1093/oso/9780190903572.003.0003","url":null,"abstract":"This chapter focuses on tort liability. In the international legal order, the tort regime is of particular importance. As we shall see, the Alien Tort Claims Act has a vital role to play either as a backup to a failed attempt at criminal prosecution or the inability to get jurisdiction over a defendant in hiding. Thus, the international regime of tort liability responds to the same concerns of “impunidad” as one finds in the Preamble of the Rome Statute. The chapter then looks at the concept of punishment. Punishment is the domain of criminal law. Liability in tort cases is not officially punishment. In fact, punitive damages imposed by an American jury can have more severe consequences than a brief period in jail. Yet the line between crime and tort is maintained strictly in American jurisprudence.","PeriodicalId":356531,"journal":{"name":"The Grammar of Criminal Law","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124493870","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-11-11DOI: 10.1093/oso/9780190903572.003.0008
G. Fletcher
This chapter explores the role of mental state in criminal cases, considering the concept of negligence. Lawyers trained in the common law tradition are familiar with the concept of mens rea and the maxim actus non facit reus nisi mens sit rea. Literally this means that there is no criminal (or guilty) act without a criminal (or guilty) mind. The problem is that there are both descriptive and normative interpretations of mens rea and of the maxim. The normative or moral interpretation of mens rea holds that the term equivalent to a guilty mind, for example, a basis for blaming the actor for their conduct, is something not possible in the face of the defenses considered in the last chapter. Meanwhile, negligence is based, as in the classic definition from the law of torts, on the conduct of “a reasonable person under the circumstances.” The important point is that negligence is based on the fault of not knowing.
{"title":"Intention vs. Negligence","authors":"G. Fletcher","doi":"10.1093/oso/9780190903572.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780190903572.003.0008","url":null,"abstract":"This chapter explores the role of mental state in criminal cases, considering the concept of negligence. Lawyers trained in the common law tradition are familiar with the concept of mens rea and the maxim actus non facit reus nisi mens sit rea. Literally this means that there is no criminal (or guilty) act without a criminal (or guilty) mind. The problem is that there are both descriptive and normative interpretations of mens rea and of the maxim. The normative or moral interpretation of mens rea holds that the term equivalent to a guilty mind, for example, a basis for blaming the actor for their conduct, is something not possible in the face of the defenses considered in the last chapter. Meanwhile, negligence is based, as in the classic definition from the law of torts, on the conduct of “a reasonable person under the circumstances.” The important point is that negligence is based on the fault of not knowing.","PeriodicalId":356531,"journal":{"name":"The Grammar of Criminal Law","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121279169","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-11-11DOI: 10.1093/oso/9780190903572.003.0010
G. Fletcher
This chapter focuses on the law of war and its many distinctions. The supreme distinction in this book is between lawful and unlawful. However, in the law of war, the distinctions multiply beyond control. Whether troops fighting abroad constitutes war is itself a disputed question; there has been a tendency in recent years to use “armed conflict” or “police action.” For the purposes of analyzing the Rome Statute and, in particular, Article 8 on war crimes, one has to assume an international perspective. Most countries in the international legal order are not democracies, and the internal allocation of power is not relevant to whether they violate Article 8. The complexity of Article 8 challenges the mind, with at least 50 distinct offenses. The chapter then elaborates on the perspectives necessary to grasp the general structure of war crimes in the international legal order.
{"title":"The Law of War and its Many Distinctions","authors":"G. Fletcher","doi":"10.1093/oso/9780190903572.003.0010","DOIUrl":"https://doi.org/10.1093/oso/9780190903572.003.0010","url":null,"abstract":"This chapter focuses on the law of war and its many distinctions. The supreme distinction in this book is between lawful and unlawful. However, in the law of war, the distinctions multiply beyond control. Whether troops fighting abroad constitutes war is itself a disputed question; there has been a tendency in recent years to use “armed conflict” or “police action.” For the purposes of analyzing the Rome Statute and, in particular, Article 8 on war crimes, one has to assume an international perspective. Most countries in the international legal order are not democracies, and the internal allocation of power is not relevant to whether they violate Article 8. The complexity of Article 8 challenges the mind, with at least 50 distinct offenses. The chapter then elaborates on the perspectives necessary to grasp the general structure of war crimes in the international legal order.","PeriodicalId":356531,"journal":{"name":"The Grammar of Criminal Law","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129003505","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-11-11DOI: 10.1093/oso/9780190903572.003.0013
G. Fletcher
This concluding chapter looks at the concepts of law and justice. There are two concepts of law: law as principle and law as rule or regularity. The former is normative, while the latter is descriptive. The chapter then considers the concept of justice. In the philosophical theory of justice, one must distinguish among relevant areas of private and criminal law. Retributive justice applies in criminal law, corrective justice in torts, and distributive justice in property law. In all of these areas, the claims of justice face challenges from utilitarian and economic considerations and based on efficiency, for example, deterrence in criminal law, searching for the cheapest cost avoider in tort law, and stability in property law.
{"title":"Law vs. Justice","authors":"G. Fletcher","doi":"10.1093/oso/9780190903572.003.0013","DOIUrl":"https://doi.org/10.1093/oso/9780190903572.003.0013","url":null,"abstract":"This concluding chapter looks at the concepts of law and justice. There are two concepts of law: law as principle and law as rule or regularity. The former is normative, while the latter is descriptive. The chapter then considers the concept of justice. In the philosophical theory of justice, one must distinguish among relevant areas of private and criminal law. Retributive justice applies in criminal law, corrective justice in torts, and distributive justice in property law. In all of these areas, the claims of justice face challenges from utilitarian and economic considerations and based on efficiency, for example, deterrence in criminal law, searching for the cheapest cost avoider in tort law, and stability in property law.","PeriodicalId":356531,"journal":{"name":"The Grammar of Criminal Law","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127931827","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-10-24DOI: 10.1093/oso/9780190903572.003.0004
G. Fletcher
This chapter determines the difference between subject and object. The distinction between subject and object pervades the substantive law of war and, in general, the distinction between common law and civil law modes of criminal procedure and their relative influences on the procedures of the International Criminal Court (ICC). Criminal trials presuppose human subjects, agency, and judgment. The players in every trial take on different functions in common law and civil law trials. The notion of the accused’s guilt or innocence as an object of investigation takes on a stronger significance in civilian trials. The chapter then explores the ideal types of common law and civil law criminal procedure: one stressing the subjects as the determinative element and the other emphasizing the object of investigation.
{"title":"Subject vs. Object","authors":"G. Fletcher","doi":"10.1093/oso/9780190903572.003.0004","DOIUrl":"https://doi.org/10.1093/oso/9780190903572.003.0004","url":null,"abstract":"This chapter determines the difference between subject and object. The distinction between subject and object pervades the substantive law of war and, in general, the distinction between common law and civil law modes of criminal procedure and their relative influences on the procedures of the International Criminal Court (ICC). Criminal trials presuppose human subjects, agency, and judgment. The players in every trial take on different functions in common law and civil law trials. The notion of the accused’s guilt or innocence as an object of investigation takes on a stronger significance in civilian trials. The chapter then explores the ideal types of common law and civil law criminal procedure: one stressing the subjects as the determinative element and the other emphasizing the object of investigation.","PeriodicalId":356531,"journal":{"name":"The Grammar of Criminal Law","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129004286","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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