Criminal Justice Ethics 27 (1):67-77 (2008)
AbstractIn his new book, The Grammar of Criminal Law: American, Comparative, and International, celebrated criminal law theorist George Fletcher excavates criminal law doctrine across a number of countries and cultures to reveal a small number of basic shared structures. Among these structures Fletcher argues that it is a criminal law justified by Kantian legal morality, in contrast to perfectionist or communitarian theories, that is legitimate. Thus, Fletcher proposes, along with legal positivists, that the validity of legal norms does not turn on the moral claims that may underlie a perfectionist or virtue theory of law. Fletcher's claims about the shared structure of law do more than propose an analytical model of valid criminal law. Most importantly, Fletcher draws attention to the often under explored normative implications of proposed models of law in analytical jurisprudence. Virtue theories of law challenge Fletcher's view of legitimate criminal law by proposing a fundamentally different jurisprudential model of valid law. Rather than liberalism's commitment to preserving autonomy or the neutrality of the state as primary, virtue theories forward competing models of law grounded in preserving sound practical reason or the promotion of human flourishing. And while these models find a distinct and mediated role for morality to play in the determination of legitimate law, they ultimately deny Fletcher's claim that morality cannot be incorporated into law without being referenced by the law and that our political commitments must precede our moral commitments. This article places Fletcher's model of criminal law within the positivist jurisprudential landscape and connects that model of law to Kantian legal duties. The piece then explores the particular resources virtue theories of law forwarded by Lawrence Solum and Kyron Huigens have to address the role of political concerns within a virtue theory of law. It examines whether a sophisticated virtue theory finds a place for political concerns that are sufficient to defeat liberal philosophical critiques and undermine Fletcher's claims for criminal law. More importantly, rather than simply exploring the competing jurisprudential models, this article explores the important normative commitments that stem from competing jurisprudential models. Ultimately, the article concludes that understanding certain factors about the very nature of law generally and criminal law particularly leads one to affirm Fletcher's claims and limits the justification of law to our deontic duties.
Similar books and articles
The Grammar of Criminal Law: American, Comparative, and International.George P. Fletcher - 2007 - Oxford University Press.
Legislative duty and the independence of law.J. H. Bogart - 1987 - Law and Philosophy 6 (2):187 - 203.
Review essay / philosophical analysis and the limits of the substantive criminal law.Douglas N. Husak - 1999 - Criminal Justice Ethics 18 (2):58-67.
Offences and Defences: Selected Essays in the Philosophy of Criminal Law.John Gardner - 2007 - Oxford University Press.
Adjudication in Action: An Ethnomethodology of Law, Morality and Justice.Baudouin Dupret - 2006 - Ashgate.
Review essay / rethinking criminal law.Anthony D. Woozley - 1982 - Criminal Justice Ethics 1 (1):41-47.
Added to PP
Historical graph of downloads
Citations of this work
No citations found.