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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.
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BASIC CONCEPTS OF CRIMINAL LAW This page intentionally left blank BASIC CONCEPTS OF CRIMINAL LAW George P. Fletcher New York Oxford OXFORD UNIVERSITY PRESS 1998 Oxford University Press Oxford New York Athens Auckland Bangkok Bogota Bombay Buenos Aires Calcutta Cape Town Dar es Salaam Delhi Florence Hong Kong Istanbul Karachi Kuala Lumpur Madras Madrid Melbourne Mexico City Nairobi Paris Singapore Taipei Tokyo Toronto Warsaw and associated companies in Berlin Ibadan Copyright © 1998 by George P. Fletcher Published by Oxford University Press, Inc., 198 Madison Avenue, New York, New York 10016 Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. Library of Congress Cataloging-in-Publication Data Fletcher, George P. Basic concepts of criminal law / George P. Fletcher p. cm. Includes bibliographical references and index. ISBN 0-19-512170-8; 0-19-512171-6 (pbk.) I. Criminal law. I. Title. K5015.4.F58 1998 345—DC21 97-33550 3 5 7 9 8 6 4 2 Printed in the United States of America on acid-free paper For Deborah and Rebecca Each Internationalist in her Own Way. This page intentionally left blank Acknowledgments This book began not as a scholarly enterprise but as a service to the text-hungry law faculties of Russia and other post-Communist countries in Asia and Eastern Europe. I wanted to write a book that would introduce Russian law students to Western ways of thinking about criminal law. Indeed, I conceived of doing a series of books for Russian law students on basic concepts of law, with an emphasis on jurisprudential and comparative issues. The Constitutional and Legislative Policy Institute in Budapest, then headed by Stephen Holmes, thought that this was a go