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The autumn of our anguish has passed, and we are still confused about how to describe the use of military force in Afghanistan. We are torn between using the language of justice and the language of war. Is this an attack by private individuals, a case of a single terrorist writ large? If the mass killings of September 11 are the crimes of individuals – Islamic fundamentalist versions of Timothy McVeigh – then we can think about arresting them and bringing them to "justice." The mantra of the Bush team, "bringing justice to them and them to justice," has seeped through the media and become part of the standard discourse of people thinking and writing about the war. Yes, the war. What else should we call the military response to one of the most serious attacks ever executed on the soil of the United States? From its initial pronouncements, the White House has found it easy to invoke the rhetoric of armed aggression and collective self-defense. This has been a war in anyone's book except perhaps in the minds of traditional international lawyers who claim that you cannot fight a war against a non-state organization.

Somehow we in the West thought the age of war was behind us. After nuking Hiroshima, after napalming Vietnam, we had only distaste for the idea and the practice of war. The thought of dying for a noble cause, the pursuit of honor in the name of patria, brotherhood in arms – none of this appealed to us anymore. "I hate war and so does Eleanor," opined FDR in the oft-repeated lyrics of Pete Seeger. War became a subject for ironic disdain. As Tom Lehrer caught the mood of the 1960s: "We only want the world to know that we support the status quo. So when in doubt, Send the Marines!" Behind this disdain for war lies as well a distaste for the Romantic view of the world that tends to glorify the nation and war as an expression of patriotism. As Nancy Rosenblum argues, in the Romantic view of the world, war and militarism become sources of inspiration. Identifying with an ideology worth dying for, accepting a place in the hierarchy of command, becoming part of the fighting collective – these are actions and commitments that lift men out of the quotidian and enable them to feel that their lives express a deeper meaning. Revolutions and wars of self-determination have always appealed to Romantics. In the beginning of the nineteenth century, the Greek war of independence captured Byron's imagination. The War of 1848 brought Francis Lieber face to face with the glory of battle. The Spanish Civil War had a similar appeal in the twentieth century. As Barbara Ehrenreich describes the popular reaction to World War I, the outbreak of hostilities in 1914 unleashed "a veritable frenzy of enthusiasm . not an enthusiasm for killing or loot. but for something far more uplifting and worthy." The aversion to war that set in after Hiroshima and Vietnam represented a rejection of this Romantic sensibility. Finding meaning in warfare was relegated to the outdated attitudes of another time. In popular culture, at least, things have begun changing, and the shift became evident even before September 11. If the postwar and Vietnam eras found expression in films like Dr. Strangelove and Apocalypse Now, the new spirit of patriotism became visible in Steven Spielberg's film Saving Private Ryan and in Tom Brokaw's bestseller The Greatest Generation. Slightly more than fifty years after the event, the invasion of Normandy became a focal point of nostalgia and renewed interest in the lives of heroes bound together in the brotherhood of battle. Consider that Joseph Ellis, best-selling historian and professor at Mount Holyoke College, made up heroic military adventures to please his students. It would have been unthinkable for a professor circa 1970 or 1980 to think that he could impress a university audience by pretending to have fought against the Viet Cong. The recent call to arms against terrorism came when many Americans were yearning to believe, once again, that our highest calling lay in going to war for freedom and the American way.

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. ; https://scholarship.law.columbia.edu/books/1076/thumbnail.jpg

We American lawyers pride ourselves on the secular nature of our legal system. We celebrate the separation of Church and State. We think that the moving spirit of the law is to be found not in eternal truths about the universe but in the contingent needs of social and economic policy. "The life of the law has not been logic: it has been experience," said Oliver Wendell Holmes, Jr., in a sentence that since 1881 has broadcast to every new generation of lawyers the pragmatic foundations of their craft. We assume that we have little in common with the great religious legal systems found in Judaism, Christianity, and Islam. After all, our law does not come from God. It comes from the pen of human legislators. It is fallible, imperfect, subject to change, and hardly worthy of the respect we associate with Church and Synagogue. How then can I propose to speak today about nearly sacred books in the Western legal tradition? It is simple. I am going to challenge the conventional view that law and religion occupy totally separate spheres of social life. On the contrary, I will argue that our legal culture and other secular legal cultures function very much like religious communities.

Americans hate and distrust their government. At the same time, Americans love and trust their government. These contradictory attitudes are resolved by Fletcher's novel interpretation of constitutional history. He argues that we have two constitutions – still living side by side – one that caters to freedom and fear, the other that satisfied our needs for security and social justice. The first constitution came into force in 1789. It stresses freedom, voluntary association, and republican elitism. The second constitution begins with the Gettysburg Address and emphasizes equality, organic nationhood, and popular democracy. These radical differences between our two constitutions explain our ambivalence and self-contradictory attitudes toward government. With September 11 the second constitution – which Fletcher calls the Secret Constitution – has become ascendant. When America is under threat, the nation cultivates its solidarity. It overcomes its fear and looks to government for protection and the pursuit of social justice. Lincoln's messages of a strong government and a nation that must "long endure" have never been more relevant to American politics. ; https://scholarship.law.columbia.edu/books/1077/thumbnail.jpg

The Model Penal Code has become the central document of American criminal justice. It has had some effect on law reform in over 35 states. More significantly, it provides the lingua franca of most people who teach criminal law in the United States. Most academics think that the precise definitions of culpability states in section 2.02(2) are really neat, and they applaud the liberal rules that restrict the use of strict liability to administrative fines. Indeed, all things considered, for a code drafted with almost total indifference to what might be learned from European models, the Model Penal Code is an impressive achievement. The Model Penal Code's popularity is due probably to the lack of competition. Among the materials conventionally regarded as authoritative in common law jurisdictions, there is not much of a choice. Most teachers have contempt for the cases that appear in the case books. When I ask law professors to name a case that expounds the law in a way that they admire, they throw up their hands. In most other fields – torts, contracts, constitutional law, even civil procedure – there are many judicial opinions that command respect. Not so in the criminal law. Nor do the existing codes provide much solace. The adaptations of the Model Penal Code in states like New York and Illinois lack the conceptual integrity of the model statute. And surely, no one would take a 19th century state code, such as the California Criminal Code, as the model for proper analysis. One could teach criminal law on the basis of theoretical articles and books. This is the way law is taught in all Continental jurisdictions and to a large extent in England and Canada, but for Americans, the use of real books to teach the law runs contrary to tradition. Books, however good they may be, are only secondary authority. They do not have the feel of the "real thing." Faute de mieux, the Model Penal Code offers itself to law teachers as an elegant and coherent alternative to the chaotic and ill-reasoned case opinions. The downside of the Model Penal Code's influence is that it has come to shape our understanding of what a code should do in the field of criminal justice. The resulting assumptions are what I call the dogmas of the Model Penal Code. I formulate these assumptions as propositions of ironic advice to a legislature.

Some men think that the earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? These are the words of Thomas More as interpreted by Robert Bolt in his play A Man for All Seasons. More invokes the issue of scientific truth to question Parliament's authority to determine whether King Henry VIII should be recognized as the head of the Church of England. The point is well taken. When the issue is scientific truth, those with lawmaking authority cannot decide. Yet More's insight is not limited to empirical truths about the natural world. Philosophical truths are also beyond the competence of the legislature. There is something ridiculous about a legislature intermeddling in a philosophical dispute say, by deciding whether Immanuel Kant's moral theory is superior to Jeremy Bentham's. The point is so obvious that one wonders how any legislature could think differently. Yet some do. Some codes legislate the basic philosophical concepts on which they depend. Others function in a more subtle collaboration with the creative output of scholars and courts.

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. ; https://scholarship.law.columbia.edu/books/1078/thumbnail.jpg

Blackstone had a point in identifying crimes as public wrongs and torts as private wrongs. Both crimes and torts claim victims, however, the victims' responses vary according to context. In criminal cases, the victim responds by hoping that the government will apprehend and successfully prosecute the offender. In tort disputes, the victim responds by demanding compensation. It is unclear, however, what constitutes wrongdoing. Defining wrongdoing as the violation of rights is unhelpful, for that definition only raises other questions: Who has rights and what is their content? Therefore, to understand the nature of wrongdoing, we should seek a substantive theory of wrongdoing-an account of what is wrong and why it is wrong. I wish to venture a theory of this sort by examining the role of dominance, or domination, in wrongdoing.

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 (merely) 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 (or atleast cultural rejection) 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.