H. Richard Uviller, Virtual Justice: The Flawed Prosecution of Crime in America, New Haven: Yale University Press, 1996, xvii + 318 pp.

Let me begin by admitting that I am wary of any comprehensive definition of consent. This bias stems from my professional concentration on criminal law, in which nouons of freedom and responsibility play vital roles in a wide range of contexts. In each context, however, one discovers that freedom means something different. A voluntary act is any bodily movement not caused by external force or nervous disorder. On the other hand, a voluntary act, however horrific its results, ordinarily may be (...) punished only if the actor was subjectively aware that the act was wrong. In any event, a voluntary act may be excused as the product of duress if another person procures the actor's cooperation in the crime by an illegal threat that would overcome the resistance of a person of ordinary firmness. (shrink)

Criminal law theory concerns itself with the justification of punishment. Conflicting moral theories of punishment will be held in liberal democracies. The positive law therefore neither will nor should reflect exclusively a single moral theory of punishment. Like the institutions for making law, the institutions for enforcing it will cause punishments imposed to deviate from what pure moral theory might prescribe. These claims are illustrated by the debate over blackmail prohibition. The best rationale for prohibition is not the moral argument (...) that blackmailers culpably cause harm, but the political argument that blackmailers threaten the state’s claimed monopoly on punishing crime. (shrink)