Toward a Universal System of Crime: Comments on George Fletcher's Grammar of Criminal Law

Abstract

Maybe the most ambitious project of comparative criminal law research these days is the elaboration of a universal structure or concept of crime (“Verbrechenslehre”), that is, the rules, structure or system according to which we decide that a certain person deserves punishment for a certain conduct. Given the practice and case law of international criminal tribunals the question of a universal structure is especially relevant in the field of international criminal law, one may even infer a structure of crime from this practice. However, it would be fatal to ignore the centuries’ long efforts of national doctrine to develop a consistent “Verbrechenslehre”. Indeed, a universal system must be developed from or, at least, on the basis of the national systems and doctrines, i.e., it requires a comparative, conceptual approach. Such an approach, as any serious work on comparative law, requires, first of all, a mastery of more than one’s native language and, in addition, an openess towards foreign criminal justice systems and their solutions to crime. Obviously, while language abilities are indispensable to understand and develop universal concepts and doctrines it is equally clear that they are not sufficient to find answers to the hard or fine questions which often go beyond the pure terminological or conceptual level. Some of these hard questions will be treated in the following paper without, however, preteding to offer any definitive answers.

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Keywords: Theory of crime, systematic vs. case law approach, international criminal law, International Criminal Court