Criminal Master Mind

For scholar and public intellectual George Fletcher, a career overflowing with influential contributions to the academy portends even bigger things to come.

By Alexander Zaitchik

Summer 2009

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High atop a filing cabinet in George P. Fletcher’s book-lined office sits an elegantly framed triptych of placards, in which the Cardozo Professor of Jurisprudence takes evident pride. The art-quality documents feature a dramatic title script set against a painting from William Blake’s Jerusalem series that depicts a male figure engulfed in flames, arms outstretched. At first glance, the signs would appear to announce events sponsored by a department of visual or performing arts. But they are actually artifacts from Fletcher’s 2001 New Haven lecture series, which formed the basis for his book Romantics at War: Glory and Guilt in the Age of Terrorism.

If the advertisements for these lectures were more colorful than typical law school fare, this is entirely appropriate. So was the lecturer.

Since abandoning the mathematician’s lab for the law library in the mid-1960s, Fletcher has earned a reputation as one of the most provocative and original living theorists of American and comparative criminal law. “Some might call me flamboyant,” he says without apology. The New Haven “Romantics at War” lectures, which challenged accepted liberal conceptions of war guilt just months after the 9/11 attacks, were one representative piece of Fletcher’s lifelong project, going back nearly half a century, to broaden the scope of transatlantic theoretical legal inquiry.

Befitting the cosmopolitanism that defines his scholarship, Fletcher has assumed a central role in mentoring Columbia’s international students and preparing them for the study of law in America. Since 2000, he has taught a three-week introductory course each fall for 200 students trained in other legal systems. “Columbia Law School allows me to be [the students’] first encounter with American law,” says Fletcher. “It’s an annual ‘boot camp’ that is great fun and intellectually very challenging.”

Another influential class developed by Fletcher is a seminar he teaches on biblical jurisprudence. Expanded in recent years beyond its original focus on the Old Testament to examine other religious texts, such as the Koran, the course—which Fletcher describes as an “intellectual happening”—has become a comparative law class dealing with ancient religious codes instead of secular legal systems. “I provoke students of all religions to think about the moral and legal implications of the biblical texts,” says Fletcher. “Many of our institutions in the law make no sense without understanding our roots in the lost paradigms of the biblical world—and the students are thrilled to find an alternative to ordinary law classes.”

Although his career has been peppered with high-profile moments in the public spotlight—from three nationally televised Fred Friendly seminars to regular appearances on CNN during the O.J. Simpson trial—Fletcher remains best known for his first academic treatise, the seminal 1978 work Rethinking Criminal Law, which has been the subject of symposia and is still regarded as one of the most important books on criminal law published in the past century. But Fletcher has never rested on his laurels. The California native, who speaks eight languages, has since published eight critically acclaimed books that approach legal issues from unique and unpredictable angles. His works focus on everything from the nature of loyalty to the political philosophy of Abraham Lincoln.

At 70, Fletcher shows no signs of slowing down his creative output. Last October, he published Tort Liability for Human Rights Abuses, which makes the original argument that the Alien Tort Statute can and should be used to prosecute human rights cases. He is also planning two further volumes of The Grammar of Criminal Law, which seeks to do for criminal law what Noam Chomsky did for language.


Fletcher credits his success
to an early childhood exposure to languages. The child of Hungarian immigrants, he grew up in a multilingual home in Glendale, Calif., and
began teaching himself Spanish as a boy. That was followed by intensive undergraduate study of German and Russian and, later, the acquisition of fluency
in French, Hebrew, and Italian.
 
“You can’t know a country’s law without knowing its language,” says Fletcher. “I didn’t have a clerkship at the Supreme Court starting out. I wasn’t in the top three of my law school class. It was languages that gave me a leg up.”

After graduating from the University of Chicago Law School in 1964, Fletcher received a scholarship to study German law at the University of Freiburg. It was there that he came under the influence of Hans-Heinrich Jescheck, who stimulated his interest in comparative law. While in Freiburg, Fletcher also met the legendary economist Friedrich von Hayek, who was impressed enough by the young American to invite him to a private lunch at the posh Colombi Hotel. “I doubt whether great personalities like Hayek could possibly realize the impact a single private conversation can have on the future of an aspiring young scholar,” says Fletcher. “That chat over lunch still influences me in the way I think about economics in the law.”

Fletcher returned to the United States enthralled with the German approach to law, which he describes as more rigorous, more systematic, and requiring more robust thinking than the American or French approaches, with their fixation on
isolated precedent.

More than 10 years passed between his return from Germany and the writing of Rethinking Criminal Law, which occurred during an intense six-month period in 1978. Three decades later, Rethinking continues to reverberate on both sides of the Atlantic. The two decisions so far handed down by the International Criminal Court have cited the publication—the only text with that distinction. “The book allows you to say, ‘This is true in most legal systems.’ It crosses national boundaries,” says Fletcher.

Post-9/11, Fletcher finds his work on the legal front lines intersecting with the day’s biggest headlines—and not for the first time. In the 1970s, Fletcher, joined by Columbia Law School’s Telford Taylor, made a series of high-profile visits to Moscow, where he helped liberate dozens of Soviet Jewish prisoners on the basis of legal arguments centered on Soviet sources. In 2006, four Supreme Court justices endorsed the argument made by Fletcher in an amicus brief for the landmark case Hamdan v. Rumsfeld, wherein he argued conspiracy charges were not permissible under the law of war.

Fletcher is currently focused on legal questions related to terrorism, specifically the overlap between crime and war. The topic, he says, is of critical importance, and his scholarship is driven by the belief that academic legal discussions must continue to cross national boundaries, perhaps now more than ever. “There has never been a more urgent time for serious jurisprudential and comparative reflection on terrorism, international violence, and war,” says Fletcher. “Immediately after the bombing of the Twin Towers, I realized that the basic issue of the times is distinguishing between crime and war. The problem is complicated by the reciprocal ignorance of international and criminal lawyers of each other’s fields. International and criminal lawyers need to educate each other—and quickly.”

Alexander Zaitchik is a New York–based freelance journalist who has written for The San Francisco Chronicle and The New York Times, among other publications.

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Professor George Fletcher