27 Crim. Just. Ethics 4 (2008)
Collective Crime and Collective Punishment

handle is hein.journals/crimjeth27 and id is 4 raw text is: Jeff McMahan / 4

Collective Crime and Collective Punishment


George Fletcher emerges in his writing, as in his life, as
a colorful and highly individual figure. The last thing
one expects of him is the surrender of individual iden-
tity to an anonymous submersion in the collective. Yet
doctrinally he is a collectivist. In his recent writings, he
has been seeking to collectivize just about everything:
action, responsibility, guilt, liability, self-defense, crimi-
nal punishment, international criminal law, action in
war, war crimes, and so on.
It is, however, only in the final section of The Gram-
mar of Criminal Law, volume 1, that Fletcher discusses
collective guilt and the alleged collective nature of the
crimes within the jurisdiction of the International Crim-
inal Court (ICC).1 Yet the penultimate sentence of the
book promises that in volume 2, in discussing specific
crimes in international criminal law, I will address the
way in which the collective guilt of nations and other
groups should enter into the sentencing process of in-
dividuals charged with mass atrocities [339]. Indeed, a
review of the tables of contents for volumes 2 and 3 con-
firms that war and war-related crimes of international
criminal law, both of which he understands in collec-
tivist terms, will be the major preoccupations of these
forthcoming volumes. Discussions of collective guilt and
international criminal law therefore seem foundational
to Fletcher's project as a whole. Yet the discussions in
the Grammar, volume 1, do not break new ground but
merely recapitulate ideas and arguments that he has
stated and defended at greater length in other recent
work.2 Because I will focus in this article on Fletcher's
collectivist orientation toward war and the crimes of in-
ternational criminal law, I will refer more often to the
more extensive discussions of these issues in his other
Jeff McMahan, author of The Ethics of Killing: Problems
at the Margins of Life (2002), is Professor of Philosophy,
Rutgers University, New Jersey.

recent work than to the abbreviated discussions in the
first volume of the Grammar. I think, however, that my
arguments will be highly germane to Fletcher's larger
project in the three volumes of the Grammar, and that
some of the objections I raise here anticipate problems
that will arise in the subsequent two volumes.
Before turning to war and international criminal law,
it is worth observing how pervasive the collectivizing
tendency has become in Fletcher's work. His recent dis-
cussions of self-defense continue to defend the account
to which he has been attracted for decades. He believes
that individual self-defense is not justified solely by the
rights or inviolability of the individual victim but by the
imperative of defending the collective and its legal or-
der, since an attack against one is an attack against all,
so that a defense of one is also a defense of all.3 He ar-
gues that an individualist approach to the justification
of individual self-defense is inferior to a society-based
approach, partly because only the latter, he claims, can
support a reasonable requirement of proportionality.4
Although it is frequently claimed that the right of na-
tional or collective self-defense can be understood by
analogy with the more fundamental right of individual
self-defense, Fletcher seems to see national self-defense
as more basic and thus reverses the traditional direction
of the analogy, claiming that the individual right of
self-defense makes sense as an extension of the idea that
nations can use force to maintain dominance over their
own people and their own territory.I
Fletcher holds that domestic crime also has a collec-
tive victim, and that criminal punishment addresses
the wrong, or harm, done to the collective rather than
that done to the individual. He argues that even if we
subscribe to the importance of harm in defining crime,
and harm means harm to a victim, justice nevertheless
require[s] abstraction from the particular victim. In a ho-
micide case, the issue at stake is the value of life in gen-
eral, not the life of the particular decedent. It would be
odd to claim that it would be a lesser crime, in principle,

Criminal Justice Ethics

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