Search

My readers have done me a great honor. They have read the first volume in the treatise I hope to complete on The Grammar of Criminal Law: American, Comparative, and International and they have stimulated me to see complexities in the argument that I previously did not detect. Their encomiums aside, the true respect for scholarly work is to read it seriously and to advance the learning of our profession by offering arguments and inviting me to reply. I Jeff McMahan and Jan Van Dijk I find it useful to group some of the essays together for they emphasize different sides of the same problem. Let me begin with the papers by McMahan and Van Dijk. McMahan has untiringly criticized my tendency to accentuate the collective dimensions of war and war crime. In conferences where we meet on the same panel and in this written collection, I can expect a critique from what I call the liberal individualist in the law of war. The liberal individualist holds that all soldiers act as individuals, which in turn generates serious problems explaining why soldiers are not liable for violent actions committed in the course of ordinary warfare. I will not address problems inherent in McMahan's work, for it is I who should be on the defensive here, not his individualist view. The thrust of McMahan's critique in these pages is that I exaggerate the possibilities of mitigation for collective guilt. One of the three factors I introduce--here and in other books and articles--is the possibility of mitigating the guilt of an individual, say, Eichmann, on the ground that an entire nation bears guilt for the Holocaust. Herbert Morris has already written a serious critique of this view and therefore I am not sure how much of this concern is still tenable. The second mitigating factor is the inverse doctrine of complicity, used once by the German courts in the Stashchynsky case. Lawyers sought to mitigate the guilt of the person who executes the crimes as an accessory relative to the commanding officer, the latter of whom must be seen as the principal directing the crime. This view was endorsed in an old German case, subsequently changed by legislation; so again I am not too sure of the viability of Stashchynsky doctrine. The third argument examines the responsibilities of commanders who oversaw mass atrocities, such as Sabra and Shatilla in the 1980 Israeli occupation of Lebanon, and ascribes to them less than full responsibility because other groups, namely the Phalangists, carried out the killing. The argument for mitigation typically holds that the commander is not responsible for the actions of intervening forces that actually carry out the bloody attacks on prisoners of war or a civilian population. I concede that McMahan has mounted this critique of mitigation effectively but it is not clear what remains of his thesis or even if he is strongly committed to the view that war consists always in a collection of individual actions and never in collective action. The debate is far from over, though the lines are clearly drawn. We are still looking for powerful arguments to defend either the collectivist vision of war or the liberal individualist view that every soldier fights with moral responsibility for his actions. The thrust of McMahan's argument in favor of liberal individualism minimizes the possibilities of mitigation by national guilt, by theories of complicity or by intervening causes. One consequence of his view is that whoever is responsible, the responsibility must be complete and unmitigated (or at least not mitigated by any of the arguments I have offered). In this respect I find a convergence between his critique and the thrust of the article by Jan Van Dijk on the role of victims in criminal trials. The encounter with Van Dijk was surely one of the most surprising of my professional life. Working independently and thousands of miles apart, we both discovered one of the most original linguistic features of modern criminal law in countries influenced by Abrahamic religions (Judaism, Christianity, and Islam). …

Criminal punishment has traditionally been the most elementary and obvious expression of the state's sovereign power. As evidenced by the ready appeal to punishment in the international community as well as in the European Union, the institution of punishment also provides an important medium for expressing the majesty of new super-entities as well as of traditional states. One would expect, therefore, that the theory of punishment and of criminal law would be high on the agendas of those interested in the philosophical foundations of the state. Yet in contemporary writing on political theory, particularly in English, neither criminal law nor criminal procedure receives much attention. (1) The converse is also true: those writing on criminal theory rarely see the connection between their internal disputes--say, about victims' rights and impossible attempts--and the broader issues, not only of political but of moral philosophy. In this essay I assess the way in which certain basic positions about the nature of state and society work themselves out in criminal law. In the absence of a developed literature on political and criminal theory, most of these arguments will be novel attempts to lay the groundwork for further discussion. I begin by projecting implications for criminal law from specific theories, known by the conventional labels of libertarian, liberal, communitarian, and perfectionist approaches to using criminal sanctions. Then I turn to the problem of legitimacy in both domestic and international criminal law. The distinction between political and moral theory is critical to the argument. Some writers today use the term "moral" so broadly that their usage obfuscates the important distinction between the state's acting legitimately and individuals acting morally. (2) The political addresses the power and prerogatives of state officials--that is, of human beings cast into a particular role of enforcing criminal prohibitions. The moral focuses primarily on the lives of individuals, both in their personal flourishing and in their relationships with other individuals. An example of the kind of the argument I seek to avoid is the conventional claim about desert. The argument goes like this. Some people--really bad people like Adolph Eichmann or Slobodan Milosevic--deserve to be punished. Because they deserve a certain consequence, it follows that the state is justified in delivering it. This is a non sequitur. An extreme version of the non sequitur is found in the retributive theory of Michael Moore who argued that because individuals feel guilty, they should be punished according to their guilt. (3) Missing are the critical premises first that it is the business of the state rather than of God (or the victim or the victim's family) to punish the offender, and second that the offender's feelings of guilt are a reliable indicator of that which should be punished and of the appropriate degree of punishment. (4) The popular language of "just deserts" reveals the depth of our confusion. Just because the offender might deserve punishment, it does not follow--without an appropriate theory of state power--that the state should assess the degree of deserved punishment and use its power to impose it on the offender. The quick assumption that the state is entitled to punish offenders who "deserve" it is one of the unfortunate banalities of criminal law in our time. The logical gap between the offender's desert and someone's or some entity's authority is well understood in Jewish law and in other religious legal systems. Genesis 9:6 tells us that "whoever sheds the blood of man, by man shall his blood be shed." This is comparable to claims about desert. The killer may deserve to die but it does not follow that the state is entitled to kill him. We should think about this conceptual divide as the distinction between moral and political theory. The moral specifies what people deserve. …

In the early morning of April 1, 1997, the police in Cologne beat up a young Turkish woman who called seeking help in the middle of the night. Identified in the German press simply as Oeykue, she reported to journalists that she and her sister Irem had called the police hotline a half dozen times in response to an ominous banging on the shutters of her first-floor apartment. The police came once at about 2:30 a.m. and found nothing suspicious. After additional calls, two officers showed up in a patrol car and, by her own admission, Oeykue started screaming at them, "Why are you so late? Aren't you here to help people?" According to her story, one of the officers called the slightly-built 108-pound Oeykue a "little foreign asshole," hit her twice in the face, and then threw her to the ground, stepped on her back, and handcuffed her. Her sister Irem was there to note it all, but that did not inhibit the violence. They told Irem to keep quiet or the same would happen to her. With Oeykue still screaming in the back seat of the patrol car, they drove off. The cop who assaulted her initially was at the wheel, but he managed to turn and slap her a few more times, she claims, apparently to shut her up. What happened at the police station is, according to Oeykue's report, even more remarkable. Sometime between 4:00 and 5:00 a.m., the police locked her in a toiletless cell without booking her. Urine covered the floor and the only refuge was a cement shelf that passed as a bed. Her left wrist was bleeding from the overly tight handcuff. Screaming from other prisoners surrounded her. She could not speak to anyone and she had no way of making a phone call. The remarkable fact is that Irem was able to locate her. And this she could do only because she had the number of a retired German police officer they had met at a New Year's Eve party in a local Turkish restaurant. He made a few calls and let Irem know that Oeykue was locked up at the Waidmark station and would be released the next day at 11:00 a.m. As soon as she could, Oeykue sought medical assistance. At the emergency room of the local hospital, the attending physicians decided that her wounds were sufficiently serious to have her treated as an in-patient. She ended up spending five days in a hospital bed. On April 4, the local Cologne paper ran a story about the incident along with a picture of Oeykue in the hospital.(1) The picture revealed the scar forming on Oeykue's left hand and also showed Irem standing behind her. A curious thing about the story, however, is that it mixed up the two sisters' names. It identified the injured sister as Irem. It also ran the version of the incident that the police spokesman related to them from the police report. When they encountered Oeykue and Irem in the courtyard outside their door, the officers reported, they saw Oeykue carrying a vacuum cleaner and, at the outset, she took the tube and swung it at one of the officers hitting him in the upper right cheek. It was only after being hit, supposedly, that the officer threw Oeykue to the ground and handcuffed her. If you believe the police and you do not ask too many questions about the slaps in the police car, the story looks like a fairly routine case of using force to effectuate an arrest. Like the journalist who wrote the story in the local press, however, the police were not sure until seven days after the incident which sister was which. On April 7, a note on the police blotter indicates that the picture in the local paper was shown to the officer in charge and he identified the woman in the bed as Oeykue rather than Irem. How he was able to do this is entirely unclear, for so far as we know the police had not taken a photograph when they detained her. But clearly, the Cologne police pay attention to the press that they receive. Had they read the Turkish press serving the three million Turks in Germany, they would have been dismayed by the headlines of brutality and terror. …

The essays in this symposium are gratifying for a number of reasons. First, the six writers, including the editor John Kleinig, have read me fairly and obviously understood my central claims. Their comments testify to the possibility of productive discourse on these difficult philosophical issues. I do have some quibbles with Nathanson's stressing my treatment of minimal loyalty and ignoring my chapter on maximal loyalty, but there is no reason to bore the reader, who would do better to read Loyalty than endure a defense of my vies on tangential points. Further, the topics that the reviewers have selected for criticism are partly predictable, partly refreshingly idiosyncratic. It never occurred to me, as Oldenquist argues, for example, that my position on public flag burning had something in common with Lord Devlin's views on punishing private homosexuality. The difference between Devlin and myself, it seems, is quite simple. If Devlin lived in a society where homosexuality were the norm (and children were produced in laboratories), he would presumably defend the practices of the Queer Nation against those who enjoyed the "unnatural practice" of meshing different kinds of genitalia. The same thought experiment does not extend to flag burning and other acts of public indecency. Burning the flag every day would hardly have a point: that ritual would become as banal and meaningless as using "fuck" in every sentence. And if we lived in a society in which corpses were served up for lunch, one might well come upon the idea that we would all feel better about our bodies and our spirits if we changed our ways. Public fornication could conceivably become so normal that no one would notice it, but I tend to doubt that we could become so callous in our sexual vulnerability. Our sentiments of indecency draw on sources deeper than conventional morality. There is happily little in my argument that intersects with Devlin's brand of moral priggishness. The more predictable challenges to my arguments are Ewin's balking at my treating loyalty as a virtue in itself and the related argument, raised in several papers, that loyalty is in fact compatible with the impartial ethics of Kant and Bentham. Marantz's probing when we actually act out of loyalty highlights the same concern. Whether loyalty is an intrinsic value is indeed a difficult and enduring question. I doubt that repeating the arguments of my book would be persuasive a second time around, and therefore I defend my position on the value of loyalty by taking a new tack. There is much to be learned about the role of loyalty in our lives by exploring the commonalities of loyalty and tolerance. At first blush it seems that loyalty and tolerance are addressed to different issues. Loyalties define the bonds by which some people relate to us as insiders, relegating others to the status of outsider. Tolerance is a value that addresses the fair and decent treatment of outsiders. Thus, for example, loyalty to my people or my nation, my duty to stand by them in times of trouble, implies that other peoples and nations stand beyond the range of this duty. I treat these outsiders less favorably; I need not stand by them, fight for them, or care for them with the same solicitude. But still I owe them, as members of distinct cultures, a duty of respect. Paradoxically, we might tolerate the idiosyncracies of outsiders even more than those of people to whom we are loyal. This point has always been reflected in the principles of international comity in the field of marriage and divorce. We do not recognize polygamous marriages among Americans, and at various times in our history we have been viciously intolerant of the American Mormons who engaged in multiple marriages. But if a Sheik comes to the United States from Saudi Arabia with several wives in tow, we recognize the status of each woman as his legal wife. Jewish law applied in the Israeli courts does not recognize the marriage between a Gentile and a Jew, but if the couple goes to Cyprus, marries, and then returns to Israel, the marriage will of course be recognized. …

(1986). Constructing a theory of impossible attempts. Criminal Justice Ethics: Vol. 5, No. 1, pp. 53-69.