The conflict which has tended recently to crystallize in particular around the name of Martin Heidegger goes back a long way. Where do philosophers stand in relation to political and social reality? What assistance can their problems and insights offer the process of coming to terms with this reality? In the context of the discussions surrounding Farias's book I set out my own position in Paris in November 1987; the full text was later published in German under the heading “Return (...) to Syracuse?” This title referred to the disappointment Plato felt in his own time when, at the invitation of the tyrant of Syracuse, that city's absolute ruler, he had twice gone to initiate the young prince in the basic principles of his thought concerning the just idea of the state and the just ordering of society. Things turned out badly and Plato had considerable difficulty getting back home again. Later still he was to suffer bitter disappointment when his intimate associate Dion, a member of the innermost circle of his academic community, was suddenly murdered by his own friends after heading a victorious operation to liberate Syracuse (one would like to know more about what lay behind that particular assassination). (shrink)

For people to live together in pluralistic communities, they must find someway to cope with the practices of others that they abhor. For that reason, tolerance has always seemed an appealing medium of accommodation. But tolerance also has its critics. One wing charges that the tolerant are too easygoing. They are insensitive to evil in their midst. At the same time, another wing attacks the tolerant for being too weak in their sentimentsof respect. “The Christian does not wish to be (...) tolerated,” as T. S. Eliot said; and by this he meant to claim, presumably, that the Christian desires respect and acceptance, and not merely the forbearance suggested by “tolerance.” To make the case for tolerance, we must engage in a three-front campaign: first, against intolerance; second, against the moral failing of indifference; and third, against the desirability of respecting and accepting everyone. The central claim in making this case will be that unlike these three competing sentiments, tolerance is a complex attitude toward the behavior and beliefs of others. Its complexity consists in both moral disapproval and the avoidance of interference. If there is a case to be made for tolerance, it must derive from this peculiar complexity. After surveying its alternatives, I will argue that the complex sentimentof tolerance is more readily praised than its alternatives. (shrink)

In the United States today criminal justice can vary from state to state, as various states alter the Modern Penal Code to suit their own local preferences and concerns. In Eastern Europe, the post-Communist countries are quickly adopting new criminal codes to reflect their specific national concerns as they gain autonomy from what was once a centralized Soviet policy. As commonalities among countries and states disintegrate, how are we to view the basic concepts of criminal law as a whole? Eminent (...) legal scholar George Fletcher acknowledges that criminal law is becoming increasingly localized, with every country and state adopting their own conception of punishable behavior, determining their own definitions of offenses. Yet by taking a step back from the details and linguistic variations of the criminal codes, Fletcher is able to perceive an underlying unity among diverse systems of criminal justice. Challenging common assumptions, he discovers a unity that emerges not on the surface of statutory rules and case law but in the underlying debates that inform them. Basic Concepts of Criminal Law identifies a set of twelve distinctions that shape and guide the controversies that inevitably break out in every system of criminal justice. Devoting a chapter to each of these twelve concepts, Fletcher maps out what he considers to be the deep structure of all systems of criminal law. Understanding these distinctions will not only enable students to appreciate the universal fundamental ideas of criminal law, but will enable them to understand the significance of local details and variations. This accessible illustration of the unity of diverse systems of criminal justice will provoke and inform students and scholars of law and the philosophy of law, as well as lawyers seeking a better understanding of the law they practice. (shrink)

Jewish law takes an approach to self-defense that differs dramatically from the conventional assumptions of Western secular legal systems. The central theme of Talmudic jurisprudence is that self-defense rests on a duty not to stand idly by while one's neighbor suffers. “Do not stand on the blood of one's neighbor,” as the point is cryptically put in Leviticus 19:16. This way of thinking about self-defense departs in two significant ways from common Western assumptions. First, it stresses that the roots of (...) self-defense are a duty rather than a right to act; second, it treats the case of third-party defense as logically prior to the first-party case of self -defense. (shrink)

In this one-of-a-kind text, George P. Fletcher, a renowned legal theorist, offers a provocative yet accessible overview of the basics of legal thought. The first section of the book is designed to introduce the reader to fundamental concepts such as the rule of law and deciding cases under the law. It continues with an analysis of the values of justice, desert, consent, and equality, as they figure into our judgment of legal cultures in terms of soundness and legitimacy. (...) The final chapters address the problems of morality and consistency in the law. In each case the author not only introduces the basic ideas but considers important arguments in the contemporary literature and raises original claims of his own. Ideally suited for courses in the philosophy of law, legal issues, and jurisprudence, Basic Concepts of Legal Thought fills a void in the literature, as there is no other volume that both eases law students into the mysteries of legal philosophy and provides an introduction to the legal mind for non-lawyers. (shrink)

The Grammar of Criminal Law is a 3-volume work that addresses the field of international and comparative criminal law, with its primary focus on the issues of international concern, ranging from genocide, to domestic efforts to combat terrorism, to torture, and to other international crimes. The first volume is devoted to foundational issues. The Grammar of Criminal Law is unique in its systematic emphasis on the relationship between language and legal theory; there is no comparable comparative study of legal language. (...) Written in the spirit of Fletcher's classic Rethinking Criminal Law, this work is essential reading in the field of international and comparative law. (shrink)

America is at war with terrorism. Terrorists must be brought to justice.We hear these phrases together so often that we rarely pause to reflect on the dramatic differences between the demands of war and the demands of justice, differences so deep that the pursuit of one often comes at the expense of the other. In this book, one of the country's most important legal thinkers brings much-needed clarity to the still unfolding debates about how to pursue war and justice in (...) the age of terrorism. George Fletcher also draws on his rare ability to combine insights from history, philosophy, literature, and law to place these debates in a rich cultural context. He seeks to explain why Americans--for so many years cynical about war--have recently found war so appealing. He finds the answer in a revival of Romanticism, a growing desire in the post-Vietnam era to identify with grand causes and to put nations at the center of ideas about glory and guilt.Fletcher opens with unsettling questions about the nature of terrorism, war, and justice, showing how dangerously slippery the concepts can be. He argues that those sympathetic to war are heirs to the ideals of Byron, Fichte, and other Romantics in their belief that nations--not just individuals--must uphold honor and be held accountable for crimes. Fletcher writes that ideas about collective glory and guilt are far more plausible and widespread than liberal individualists typically recognize. But as he traces the implications of the Romantic mindset for debates about war crimes, treason, military tribunals, and genocide, he also shows that losing oneself in a grand cause can all too easily lead to moral catastrophe.A work of extraordinary intellectual power and relevance, the book will change how we think not only about world events, but about the conflicting individualist and collective impulses that tear at all of us. (shrink)

Professor Fletcher challenges the traditional account of the development of tort doctrine as a shift from an unmoral standard of strict liability for directly causing harm to a moral standard based on fault. He then sets out two paradigms of liability to serve as constructs for understanding competing ideological viewpoints about the proper role of tort sanctions. He asserts that the paradigm of reciprocity, which looks only to the degree of risk imposed by the parties to a lawsuit on (...) each other, and to the existence of possible excusing conditions, provides greater protection of individual interests than the paradigm of reasonableness, which assigns liability instrumentally on the basis of a utilitarian calculus. Finally, Professor Fletcher examines stylistic differences between the two paradigms which may explain the modern preference for the paradigm of reasonableness. (shrink)

This is a reprint of a book first published by Little, Brown in 1978. George Fletcher is working on a new edition, which will be published by Oxford in three volumes, the first of which is scheduled to appear in January of 2001. Rethinking Criminal Law is still perhaps the most influential and often cited theoretical work on American criminal law. This reprint will keep this classic work available until the new edition can be published.

In the theory of rights we repeatedly encounter the problem of reconciling someone’s having a right, with his properly suffering damage to the interest protected by the right. In the case of right to life, we have to assess numerous cases in which individuals are killed or allowed to die, and yet we wish nonetheless to affirm their right to life. These cases include killing an aggressor in self-defense, accidental homicide, terminating life-sustaining therapy, and capital punishment.

In this one-of-a-kind text, George P. Fletcher, a renowned legal theorist, offers a provocative yet accessible overview of the basics of legal thought. The first section of the book is designed to introduce the reader to fundamental concepts such as the rule of law and deciding cases under the law. It continues with an analysis of the values of justice, desert, consent, and equality, as they figure into our judgment of legal cultures in terms of soundness and legitimacy. (...) The final chapters address the problems of morality and consistency in the law. In each case the author not only introduces the basic ideas but considers important arguments in the contemporary literature and raises original claims of his own. Ideally suited for courses in the philosophy of law, legal issues, and jurisprudence, Basic Concepts of Legal Thought fills a void in the literature, as there is no other volume that both eases law students into the mysteries of legal philosophy and provides an introduction to the legal mind for non-lawyers. (shrink)

Americans believe in the criminal jury as a vehicle of democratic participation as well as a bulwark against state oppression. Racial and gender discrimination poses a threat to the ideal of democratic participation. The vehicle for discrimination is the use of peremptory challenges against candidates for the jury. Since 1986 the Supreme Court has tried to work out rules restricting the use of peremptory challenges. One problem has been the extending application of the principle of non-discrimination to tactical decisions by (...) defense counsel. Another has been the determination of the groups that will be protected under the principle of non-discrimination. The articles criticizes the Supreme Court's ignoring the kind of considerations that motivate lawyers in picking a jury. In the end the conflict is one between egalitarian ambitions and protecting the liberty of the accused. Amerikaner sehen in Geschworenen sowohl Träger demokratischer Mitwirkung als auch ein Bollwerk gegen staatliche Unterdrükung. Diskriminierung in bezug auf Rasse oder Geschlecht stellt eine Bedrohung für das Ideal demokratischer Mitwirkung dar. Ein Einfallstor für Diskriminierung sind die "peremptory challenges" gegen Kandidaten für das Geschworenenamt, das ist das Recht u. a. der Verteidigung, solche Kandidaten ohne Angabe von Gründen rechtswirksam abzulehnen. Seit 1986 hat der Supreme Court versucht, Regeln zu entwickeln, die den Gebrauch der "peremptory challenges" einschränken. Dadurch entstehen Probleme. Ein Problem ergibt sich aus der zunehmenden Anwendung des Diskriminierungsverbots auf taktische Entscheidungen der Verteidigung, ein anderes aus der Bestimmung der Gruppen, die vom Diskriminierungsverbot geschützt sein sollen. Der vorliegende Beitrag kritisiert, daß der Supreme Court es nicht berücksichtigt, von welchen Überlegungen Anwälte sich bei der Auswahl von Geschworenen leiten lassen. Letztendlich handelt es sich um einen Zielkonflikt zwischen egalitären Bestrebungen und dem Versuch, die Rechte des Angeklagten zu sichern. (shrink)

These days, American politicians are loath to cite biblical passages for fear of being charged with breaching the wall between church and state. There was a time when a presidential candidate could claim that a certain monetary policy would “crucify us on a cross of gold.” This kind of rhetoric is now taboo. America's national leaders even avoid quoting the religious phrases from the Declaration of Independence, particularly its references to the “Creator” or “Nature's God.” Although in the past some (...) of the greatest American political oratory—Abraham Lincoln at Gettysburg or Martin Luther King, Jr., at the Lincoln Memorial —relied unashamedly on biblical sources and imagery, it is no longer considered acceptable to argue publicly in the language of either the Hebrew or Christian Bibles. However religious American society might still be today, political rhetoric is noticeably nonreligious. (shrink)

Attitudes toward collective guilt in the Middle East require us to take a closer look at guilt in the Bible. It turns out the text of Genesis is conflicted. Some passages support a theory of guilt linked with the inevitability of cleansing and punishment; other passages appear to treat guilt as a psychological state that might be cured by a confession of sins. The tension is important today in trying to understand whether the collective guilt of nations should also entail (...) collective punishment. (shrink)

The theoretical inquiry into the foundations of criminal law in the twentieth century, in both civil and common law traditions, is assayed by the consideration of seven main currents or trends. First, the structure of offenses is examined in light of the bipartite, tripartite, and quadripartite modes of analysis. Second, competing theories of culpability - normative and descriptive - are weighed in connection with their important ramifications for the presumption of proof and the allocation of the burden of persuasion on (...) defenses. Third, the struggle with alternatives to punishment for the control and commitment of dangerous but non-criminal persons is compared in civil and common law approaches. Fourth, the ascendancy of feminism, as the most successful interdisciplinary school of thought applied to criminal law since the early 1970s, and its contributions in the areas of rape, self-defense, provocation, and capital punishment are charted and weighed. Fifth, one of the most distinctive facets of criminal theory in the last century has been the emergence of the victims' rights movement; its success is compared in civil and common law jurisdictions. Sixth, while it is commonplace in the civil law tradition to embed issues of criminal law within the principles of constitutional law, common law jurisdictions vary; the increasing constitutionalization of criminal law in Canada is contrasted with its decrease in the U.S. Seventh, against the backdrop of a particularly intense period of codification of the criminal law in the last half of the twentieth century, the celebrated American Model Penal Code is criticized. Finally, four predictions for the direction of criminal theory in the next century are ventured. (shrink)

This chapter contains sections titled: Loyalty and Partiality Loyalty: Unilateral and Reciprocal Contract and History Individualism and Communitarianism Loyalty in the Legal Culture Loyalty and Its Critics References.

This chapter contains sections titled: What I s Punishment? Purposes of Punishment An Alternative Theory of Punishment Responsibility References.

Despite the outpouring of interest in tort and criminal theory over the last thirty years, not much progress has been made toward understanding the basic concepts for analyzing liability. Common law theorists of torts and criminal law tend to accept the conventional distinction between objective and subjective standards and the view that objective negligence is not really fault in the way that subjective negligence is. The author’s view is that this distinction between objective and subjective standards is misunderstood and that, (...) in fact, so-called objective negligence is a test of fault or culpability in the same way that subjective standards are. This paper seeks to defend inadvertent negligence as a proper basis for blaming someone for causing harm, whether in the context of tort law or criminal law, whether the standard is regarded as objective or subjective. The first part of the paper, the historical part, engages in an extended analysis of Oliver Wendell Holmes’ writings on negligence. The second part of the paper, the philosophical part, addresses the general question of how people can be considered at fault and be blamed for not knowing critical attributes of their conduct, which might be either matters-of-fact or matters of moral evaluation. (shrink)

Writing is central both to the medical diagnostic codification of disability and to disabled people’s efforts to interrupt, complicate, or disrupt dominant medical narratives. This Symposium, like the George Washington University conference from which it takes its name, creates space for diverse modes and genres of claiming authority regarding diagnosis and its cultural and material effects. “Queer” and “crip” interrogations of diagnosis illuminate its status as a cultural phenomenon, embracing culturally disavowed embodiments and embodied experiences as tools for diagnosing (...) inegalitarian social relations and opportunities for cultural interventions. This Symposium traces the workings of diagnostic normativity manifested in experiences such as “disruptive deafness,” unstable bodily materialities, pathologized grief and other forms of affective distress, and “surgical assemblages.” It presents a diverse array of compositions, articulated on each writer’s own terms, addressing a range of embodied experiences through multiple genres and voices, ranging from conversation transcript to scholarly essay, poetry, graphic memoir, and personal essay. Here, laypersons interrupt monologic medical diagnosis, claiming space to compose themselves. Together, the authors trace instances of corporeal “correction” back to the noxious agents, both environmental and political, that consistently breach the boundaries of corporeality. (shrink)

Part I: The Life of Cognitive Science:. William Bechtel, Adele Abrahamsen, and George Graham. Part II: Areas of Study in Cognitive Science:. 1. Analogy: Dedre Gentner. 2. Animal Cognition: Herbert L. Roitblat. 3. Attention: A.H.C. Van Der Heijden. 4. Brain Mapping: Jennifer Mundale. 5. Cognitive Anthropology: Charles W. Nuckolls. 6. Cognitive and Linguistic Development: Adele Abrahamsen. 7. Conceptual Change: Nancy J. Nersessian. 8. Conceptual Organization: Douglas Medin and Sandra R. Waxman. 9. Consciousness: Owen Flanagan. 10. Decision Making: J. Frank (...) Yates and Paul A. Estin. 11. Emotions: Paul E. Griffiths. 12. Imagery and Spatial Representation: Rita E. Anderson. 13. Language Evolution and Neuromechanisms: Terrence W. Deacon. 14. Language Processing: Kathryn Bock and Susan M. Garnsey. 15. Linguistics Theory: D. Terence Langendoen. 16. Machine Learning: Paul Thagard. 17. Memory: Henry L. Roediger III and Lyn M. Goff. 18. Perception: Cees Van Leeuwen. 19. Perception: Color: Austen Clark. 20. Problem Solving: Kevin Dunbar. 21. Reasoning: Lance J. Rips. 22. Social Cognition: Alan J. Lambert and Alison L. Chasteen. 23. Unconscious Intelligence: Rhianon Allen and Arthur S. Reber. 24. Understanding Texts: Art Graesser and Pam Tipping. 25. Word Meaning: Barbara C. Malt. Part III: Methodologies of Cognitive Science:. 26. Artificial Intelligence: Ron Sun. 27. Behavioral Experimentation: Alexander Pollatsek and Keith Rayner. 28. Cognitive Ethology: Marc Bekoff. 29. Deficits and Pathologies: Christopher D. Frith. 30. Ethnomethodology: Barry Saferstein. 31. Functional Analysis: Brian Macwhinney. 32. Neuroimaging: Randy L. Buckner and Steven E. Petersen. 33. Protocal Analysis: K. Anders Ericsson. 34. Single Neuron Electrophysiology: B. E. Stein, M.T. Wallace, and T.R. Stanford. 35. Structural Analysis: Robert Frank. Part IV: Stances in Cognitive Science:. 36. Case-based Reasoning: David B. Leake. 37. Cognitive Linguistics: Michael Tomasello. 38. Connectionism, Artificial Life, and Dynamical Systems: Jeffrey L. Elman. 39. Embodied, Situated, and Distributed Cognition: Andy Clark. 40. Mediated Action: James V. Wertsch. 41. Neurobiological Modeling: P. Read Montague and Peter Dayan. 42. Production Systems: Christian D. Schunn and David Klahr. Part V: Controversies in Cognitive Science:. 43. The Binding Problem: Valerie Gray Hardcastle. 44. Heuristics and Satisficing: Robert C. Richardson. 45. Innate Knowledge: Barbara Landau. 46. Innateness and Emergentism: Elizabeth Bates, Jeffrey L. Elman, Mark H. Johnson, Annette Karmiloff-Smith, Domenico Parisi, and Kim Plunkett. 47. Intentionality: Gilbert Harman. 48. Levels of Explanation and Cognition Architectures: Robert N. McCauley. 49. Modularity: Irene Appelbaum. 50. Representation and Computation: Robert S. Stufflebeam. 51. Representations: Dorrit Billman. 52. Rules: Terence Horgan and John Tienson. 53. Stage Theories Refuted: Donald G. Mackay. Part VI: Cognitive Science in the Real World:. 54. Education: John T. Bruer. 55. Ethics: Mark L. Johnson. 56. Everyday Life Environments: Alex Kirlik. 57. Institutions and Economics: Douglass C. North. 58. Legal Reasoning: Edwina L. Rissland. 59. Mental Retardation: Norman W. Bray, Kevin D. Reilly, Lisa F. Huffman, Lisa A. Grupe, Mark F. Villa, Kathryn L. Fletcher, and Vivek Anumolu. 60. Science: William F. Brewer and Punyashloke Mishra. Selective Biographies of Major Contributors to Cognitive Science: William Bechtel and Tadeusz Zawidzki. (shrink)

Professor W. B. Anderson'S paper ‘Livy and the Lexica’ in C.Q. XXV., 1931, pp. 38–48, prompts me to put together from my notes this further list of words and idioms used by Livy but not recorded in the lexica as Livian. With one or two clearly indicated exceptions, I have included nothing which is given in Lewis and Short, Forcellini-Corradini-Perin or Georges, and I have included nothing in which Mr. Anderson has anticipated me, except that in a few places I (...) have added to the citations he gives; but my citations make no more claim to be exhaustive than his do. I have given within parentheses the authors who are cited by the lexica for a particular word or use, but I have refrained from adding other authorities. (shrink)

Professor W. B. Anderson'S paper ‘Livy and the Lexica’ in C.Q. XXV., 1931, pp. 38–48, prompts me to put together from my notes this further list of words and idioms used by Livy but not recorded in the lexica as Livian. With one or two clearly indicated exceptions, I have included nothing which is given in Lewis and Short, Forcellini-Corradini-Perin or Georges, and I have included nothing in which Mr. Anderson has anticipated me, except that in a few places I (...) have added to the citations he gives; but my citations make no more claim to be exhaustive than his do. I have given within parentheses the authors who are cited by the lexica for a particular word or use, but I have refrained from adding other authorities. (shrink)

The question of excusing in law has been the subject of different philosophical theories of responsibility. These theories attempt to shed light on the nature and function of legal excuses and to justify their role in the criminal justice system. This paper examines the issue of excusing in law from two theoretical standpoints: the character theory and the choice theory of responsibility. The two theories differ on the kinds of causes of action they each find to provide the basis for (...) holding people responsible. The character theory focuses on character, the choice theory on choice and the capacity to choose. Following a brief introduction in which the fundamental distinction between justification and excuse is outlined, the character theory of responsibility is explained with special attention being paid to the work of George Fletcher, which has made a significant impact on the field of criminal law philosophy in recent years. Then follows a critical discussion of the choice theory as elaborated by H.L.A. Hart, one of the most influential legal theorists of our times. The paper concludes that the character theory of responsibility, by drawing attention to what lies behind and motivates actual choices, offers a better basis for interpreting the moral significance of human actions and for explaining our actual blaming judgements regarding those actions. (shrink)

THE KEYNESIAN REVOLUTION AND ITS CRITICS: ISSUES OF THEORY AND POLICY FOR THE MONETARY PRODUCTION ECONOMY by Gordon A. Fletcher New York: St. Martin's Press, 1987. 348pp., $35.00 A commonplace of the history of economic thought, repeated by Fletcher, holds that Keynes was the first economist of the 1930s to reject Say's Law of Markets. It is argued that Fletcher ignores many of Keynes's contemporaries, especially those influenced by Knut Wicksell, who disagreed with Say but who used (...) a framework for monetary analysis that was sounder in all respects than that of Keynes's General Theory. (shrink)