Two understandings of morality and their relationship to politics.(SYMPOSIUM)(Interview)

I Introduction

Of the many strands woven together in George Fletcher's rich and complex book, The Grammar of Criminal Law: American, Comparative and International, Volume One: Foundations (hereafter 'Grammar'), perhaps the most prominent and pervasive is an argument about political and moral elements "in the criminal law" and in "a theory of crime." (1) According to that argument, the concept of the political is "primary" whereas the "relevance of moral thought" is secondary [154]. "The political," Fletcher tells us, "addresses the power and prerogatives of state officials ... [whereas] the moral focuses on the lives of individuals both in their personal flourishing and in their relationships with other individuals" [152].

The priority of the political over the moral--according to Fletcher--arises from the central role of punishment in identifying "crime" as a theoretically coherent organizing concept and criminal law as a discrete legal category. Because (he says) punishment is an "institution" rather than a "form of behavior" [194 n. 14], it belongs to the political rather than the moral realm. At the same time, because the state is not the only conceivable institution of punishment, a satisfactory answer to the question of what justifies the state (as opposed to other conceivable institutions of punishment) in inflicting punishment on criminals needs to be offered before we tackle the questions of whom the state is justified in punishing and for what. The argument is completed by Fletcher's assertion that the question, "why the state?"--like the question, "for what should the state punish?"--is political, whereas the question, "whom should the state punish?" is moral.

At various points, Fletcher expresses considerable doubt about the validity and force of his argument for the priority of the political over the moral. In one place he says that it "remains more an aspiration than a proven hypothesis" [217]; (2) and in another place he states that he "would have preferred a cleaner, simpler exposition of the relationship between the political and the moral" [342]. Uncertainty is also displayed in Fletcher's explicit equivocation about whether utilitarianism is better understood as a moral or a political theory [193-98], and in his statement that "we see in the state's seeking to enforce principles of loyalty that the moral suffuses the political as well" [215].

Fletcher seems to understand the argument for the priority of the political in conceptual or analytical terms. I will approach it as such in this essay--although in the conclusion I will raise the question of whether the argument would be better and more convincingly understood in normative and strategic terms. Before assessing the argument, we need to give more careful consideration to the concepts of "the political" and "the moral" and their cognates. Fletcher has relatively little to say about the political beyond the definition given in the first paragraph of this essay. That definition prompts various questions. For instance, why should the concept of the political be restricted to state action? And why should it be understood as somehow independent of the moral so that the question of priority arises in the first place? However, since Fletcher's account of the political (that is, the realm of state action) is reasonably straightforward and univocal, it is merely accepted in what follows.

Fletcher has rather more to say about morality; and because what he says has various strands, we need to do some work in clarifying the dichotomy between the political and the moral. In particular, I will argue that it is important to distinguish between two understandings of morality, which we may refer to loosely (and purely for convenience) as the "practice-dependent" understanding and the "practice-independent" understanding. Section II explains these two understandings of morality. Section III explores the relevance of the distinction between them to accounts of the relationship between law and morality. Section IV considers understandings of morality implicit or explicit in Fletcher's Grammar, and Section V examines Fletcher's account of the relationship between morality and politics. My conclusion will be that on the basis of Fletcher's understanding of the nature of morality and politics respectively, it is a mistake to draw a sharp analytical distinction between them.

First, however, it is worth noting a distinction, implicit in Fletcher's account, between "morality" and "the moral" (that is, the domain of morality) on the one hand, and "moral theory" on the other. This distinction is paralleled by one between "politics" and "the political" (that is, the domain of politics) on the one hand, and "political theory" on the other. In Fletcher's frame of reference, "political" and "moral" describe issues or questions (what justifies the state inflicting punishment? whom may it punish? for what?), while "political theory" and "moral theory" provide resources for answering those questions. In Grammar, Fletcher discusses four political theories: libertarianism, liberalism, communitarianism, and perfectionism; and four moral theories: utilitarianism, deontological ethics, loyalty, and desert. (3) This list of "moral theories" raises various questions: for instance, are "loyalty" and "desert.... moral theories" in the same sense as "utilitarianism" and "deontological ethics"? And why choose these four and omit to mention, for instance, virtue ethics or intuitionism or moral realism? But I will bracket these and other queries and simply make the point that my concern is with Fletcher's understandings of "morality" and "the political," not his accounts of "moral theory" and "political theory."