Between Self-Defense and Vengeance/Between Social Contract and Monopoly of Violence

Abstract

"The political theory we choose," as George Fletcher has insisted, "will invariably shape our answers to innumerable questions about what should be punished, when nominal violations are justified, and when wrongdoing should be excused. Criminal law is not just an exercise in the identification and punishment of bad acts. It is an application of state power. This means that our sense of the proper scope and function of state power will inevitably dictate much of our attitude toward criminal law. It also means that a true criminal law scholar (at least one who aspires to be like George Fletcher) must be prepared to put in some long hours working through the problems of political philosophy. Well, few of us can aspire to do work as sage as George's. Nevertheless, in this essay, doing my best to be like George, I am going to try to connect some of the problems of criminal law to larger problems of political theory. In particular, I want to comment on the part played, in both fields, by the tension between selfdefense and vengeance.