Stuart Green

The concept of cheating is ubiquitous in ourmoral lives: It occurs in contexts as varied asbusiness, sports, taxpaying, education,marriage, politics, and the practice of law. Yet despite its seeming importance, it is aconcept that has been almost completely ignoredby moral theorists, usually regarded either asa morally neutral synonym for non-cooperativebehavior, or as a generalized, unreflectiveterm of moral disapprobation. This articleoffers a ``normative reconstruction'''' of theconcept of cheating by showing both whatvarious cases of cheating have in common, andhow cheating is related to, and differs from,other morally wrongful acts, such as stealing,promise-breaking, deceiving, disobedience, anddisloyalty. A paradigmatic account of cheating is developed that entails two elements: First, the cheater must violate a prescriptive (rather thandescriptive), mandatory (rather than optional),regulative (rather than practice-defining), andconduct-governing (as opposed todecision-governing) rule. Second, the rulemust be fair and enforced even-handedly, andmust be violated with an intent to obtain anadvantage over some party with whom therule-breaker is in a cooperative, rule-governedrelationship. Along the way is a discussion ofpuzzling cases of ``judicial cheating,''''``strategic cheating,'''' cheating because``everyone else is doing it,'''' ``cheatingoneself,'''' ``altruistic cheating,'''' and ``ulteriormotive cheating.'''' The article then applies thecheating paradigm in the context of whitecollar criminal law, arguing that the conceptof cheating provides a better framework forexplaining the ``moral wrongfulness'''' thatunderlies and helps to define offenses such astax evasion and insider trading.

This symposium contribution offers a reconsideration of a range of “vice crime” legislation from late nineteenth and early twentieth century American law, criminalizing matters such as prostitution, the use of opiates, illegal gambling, and polygamy. According to the standard account, the original justification for these offenses was purely moralistic and paternalistic ; and it was only later, in the late twentieth century, that those who supported such legislative initiatives sought to justify them in terms of their ability to prevent harms. This piece argues that the rationale for these vice crimes laws was much more complicated than has traditionally been thought, encompassing not just moralistic justifications but also a wide range of harm-based rationales—similar to those that underlie modern, technocratic, “preventive justice” legislation involving matters such as anti-social behavior orders, sex offender registration, stop-and-frisk policing, and the fight against terrorism

For retributivists, who believe that criminal sanctions should be used to punish only conduct that is blameworthy, the so-called mala prohibita offenses have always been a source of concern: When the conduct being criminalized is wrongful prior to and independent of its being illegal - as it is with presumptive mala in se offenses like murder and rape - the path to blameworthiness is relatively clear. But when the wrongfulness of the conduct depends on the very fact of its being illegal - as is said to be the case with presumptive mala prohibita offenses like fishing without a license and buying drugs without a prescription - the argument in favor of criminalization becomes more difficult to sustain. Unless one believes that law-breaking as such is morally wrongful, criminal penalties would seem hard to justify. That, in any event, is the standard liberal, retributivist view. As I shall argue, however, things are considerably more complicated than this account would suggest. No offense, at least in the real world, is wholly malum in se or wholly malum prohibitum. Rather, the concepts of malum in se and malum prohibitum should be understood as contrasting, scalar qualities that all criminal offenses, to one degree or another, possess. Under such a conception, an offense could be, say, 80 percent malum in se and 20 percent malum prohibitum, or 20 percent malum in se and 80 percent malum prohibitum. Thinking about malum in se and malum prohibitum in this way can help us make a more precise assessment of the moral content of criminal offenses, taking account of the various ways in which law and legal institutions inform their moral content, the reasons people obey such laws, and what it means to “obey” the law in the first place.

This collection of original essays, by some of the best known contemporary criminal law theorists, tackles a range of issues about the criminal law's 'special part' - the part of the criminal law that defines specific offences. One of its aims is to show the importance, for theory as well as for practice, of focusing on the special part as well as on the general part which usually receives much more theoretical attention. Some of the issues covered concern the proper scope of the criminal law, for example how far should it include offences of possession, or endangerment? If it should punish only wrongful conduct, how can it justly include so-called 'mala prohibita', which are often said to involve conduct that is not wrongful prior to its legal prohibition? Other issues concern the ways in which crimes should be classified. Can we make plausible sense, for instance, of the orthodox distinction between crimes of basic and general intent? Should domestic violence be defined as a distinct offence, distinguished from other kinds of personal violence? Also examined are the ways in which specific offences should be defined, to what extent those definitions should identify distinctive types of wrongs, and the light that such definitional questions throw on the grounds and structures of criminal liability. Such issues are discussed in relation not only to such crimes as murder, rape, theft and other property offences, but also in relation to offences such as bribery, endangerment and possession that have not traditionally been subjects for in depth theoretical analysis.

25 leading contemporary theorists of criminal law tackle a range of foundational issues about the proper aims and structure of the criminal law in a liberal democracy. The challenges facing criminal law are many. There are crises of over-criminalization and over-imprisonment; penal policy has become so politicized that it is difficult to find any clear consensus on what aims the criminal law can properly serve; governments seeking to protect their citizens in the face of a range of perceived threats have pushed the outer limits of criminal law and blurred its boundaries. To think clearly about the future of criminal law, and its role in a liberal society, foundational questions about its proper scope, structure, and operations must be re-examined. What kinds of conduct should be criminalized? What are the principles of criminal responsibility? How should offences and defences be defined? The criminal process and the criminal trial need to be studied closely, and the purposes and modes of punishment should be scrutinized. Such a re-examination must draw on the resources of various disciplines-notably law, political and moral philosophy, criminology and history; it must examine both the inner logic of criminal law and its place in a larger legal and political structure; it must attend to the growing field of international criminal law, it must consider how the criminal law can respond to the challenges of a changing world.Topics covered in this volume include the question of criminalization and the proper scope of the criminal law; the grounds of criminal responsibility; the ways in which offences and defences should be defined; the criminal process and its values; criminal punishment; the relationship between international criminal law and domestic criminal law. Together, the essays provide a picture of the exciting state of criminal law theory today, and the basis for further research and debate in the coming years.

In the Realm of Criminal Law, Antony Duff seeks to defend the view that we should criminalize conduct only if it is wrongful. Skeptics of legal moralism argue that this occurs all the time in supposedly overinclusive offenses whose definitions capture not only the kind of conduct that constitutes the target wrong, but also a wider class of conduct that is not wrongful prior to prohibition. An example is statutory rape. Duff, in response, contends that such offenses need not violate the requirements of legal moralism. Having exploitative sex with juveniles is obviously wrong even prior to its legal regulation. But having non-exploitative sex with juveniles is also potentially wrong, inasmuch as it involves a violation of a prohibition that society has decided is justified for instrumental reasons. While Duff’s analysis offers an ingenious explanation for why offenses like statutory rape need not violate the bare minimum requirements of legal moralism, it simultaneously exposes separate, largely unacknowledged, problems of fair labeling and proportionality. By combining in a single offense wrongs that are primarily malum in se with ones that are primarily malum prohibitum—a process referred to as “wrongfulness conflation”—we risk treating unlike wrongs alike, imposing disproportionate punishments, and blurring offense labels. And such problems occur not just in the context of statutory rape, but also with respect to a host of other supposedly overinclusive offenses, including various forms of sexual assault.

Recent years have seen growing interest in the moral and constitutional status of laws prohibiting incest. Inspired by new recognition of the right to engage in private, consensual, adult homosexual conduct, commentators and litigants have argued that there should be an analogous right to engage in private, consensual, adult incestuous conduct. Section “Incest as Taboo, Incest as Aversion” looks at incest as a complex cultural taboo, attracting the attention of a wide range of social scientists. Section “How Incest Is Treated in Criminal Law” considers the multiplicity of ways in which incest is dealt with across systems of criminal law. Section “A Rationale for the Law of Juvenile Incest” considers instances in which adults have sex with closely related juveniles, arguing that such cases should be treated as an aggravated form of statutory rape, rather than a free-standing offense of “juvenile incest.” Section “A Rationale for the Law of Putatively Consensual Adult Incest” considers incestuous relationships between adults, arguing that criminal sanctions are normally unjustifiable unless lack of consent can be proved. Two possible exceptions exist, however, where the incest began when one of the parties was a minor or where the parties are in a hierarchical relationship, such as between parent and child.

Starting in the latter part of the 20th century, the law of sexual offenses, especially in the West, began to reflect a striking divergence. On the one hand, the law became significantly more punitive in its approach to sexual conduct that is nonconsensual, as evidenced by a major expansion in the definition of rape and sexual assault, and the creation of new offenses like sex trafficking, child grooming, and revenge porn. On the other hand, it became markedly more permissive in how it dealt with conduct that is consensual, a trend that can be seen, for example, in the legalization or decriminalization of sodomy, adultery, and adult pornography. This book explores the conceptual and normative implications of this divergence. At the heart of the book is a consideration of a deeply contested question: How should a liberal system of criminal law adequately protect individuals in their right not to be subjected to sexual contact against their will, while also safeguarding their right to engage in (private consensual) sexual conduct in which they do wish to participate? The book develops a framework for harmonizing these goals in the context of a wide range of nonconsensual, consensual, and aconsensual sexual offenses (hence, the “unified” nature of the theory) - including rape and sexual assault in a variety of forms, sexual harassment, voyeurism, indecent exposure, incest, sadomasochistic assault, prostitution, bestiality, and necrophilia.Taking on a diverse collection of moral and legal puzzles, arising out of real-world cases of alleged sexual misconduct, the book situates the theory of sexual offenses in the current cultural context - including the #MeToo movement and the ongoing revision of the American Law Institute's Model Penal Code.

Theft claims more victims and causes greater economic injury than any other criminal offense. Yet theft law is enigmatic, and fundamental questions about what should count as stealing remain unresolved — especially misappropriations of intellectual property, information, ideas, identities, and virtual property. In Thirteen Ways to Steal a Bicycle, Stuart Green assesses our current legal framework at a time when our economy increasingly commodifies intangibles and when the means of committing theft and fraud grow ever more sophisticated. Was it theft for the editor of a technology blog to buy a prototype iPhone he allegedly knew had been lost by an Apple engineer in a Silicon Valley bar? Was it theft for doctors to use a patient’s tissue without permission in order to harvest a valuable cell line? For an Internet activist to publish tens of thousands of State Department documents on his website? In this full-scale critique, Green reveals that the last major reforms in Anglophone theft law, which took place almost fifty years ago, flattened moral distinctions, so that the same punishments are now assigned to vastly different offenses. Unreflective of community attitudes toward theft, which favor gradations in blameworthiness according to what is stolen and under what circumstances, and uninfluenced by advancements in criminal law theory, theft law cries out for another reformation — and soon.