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This chapter presents some concluding thoughts from the author. It is because white-collar criminal law is informed by everyday moral concepts such as cheating, deceiving, coercing, and the like that its moral character can seem so ambiguous. But such ambiguity should not dissuade us from its study. The white-collar offenses constitute an increasingly important part of our criminal law. If we are to really understand that law, we have no choice but to continue exploring the complex relationship between it and morality.

This chapter begins the task of looking at white-collar crime through the lens of criminal law theory. It discusses the place of retribution in criminal law theory and moral ambiguity in white-collar criminal law.

Having considered the concepts of cheating, deception, stealing, coercion, exploitation, disloyalty, and promise-breaking, the discussion now turns to the final moral norm, that against disobedience. This is undoubtedly the most controversial of the moral norms that we are considering and many are skeptical that disobedience to the law is a form of moral wrongfulness in the first place, let alone the kind that should justify penal sanctions. This chapter dispels some of this skepticism and makes the case that disobedience to the law is a potentially relevant consideration in assessing the moral content of certain white-collar and regulatory crimes.

The moral ambivalence that the public feels towards white-collar crime is nowhere more apparent than in the case of obstruction of justice. In one high profile obstruction prosecution after another, doubts have been raised as to whether what the defendant did was something that really deserves to be treated as a crime. This chapter presents a thoroughgoing analysis of the moral content of obstruction-type crimes, a comprehensive framework for thinking about such offenses that could be used across the board in a theoretically consistent manner to evaluate both the statutory treatment of whole categories of criminal behavior and the prosecution and punishment of individual cases.

This chapter develops a framework for understanding the lessons of a project of over three years’ duration, and to distil what has been learned in the course of the project. The project was undertaken in the conviction that the area of intersection between criminal law and labour law would be an interesting one to investigate, both for labour lawyers and for criminal lawyers. From this inquiry, the chapter considers some conclusions about the significance of ‘criminality at work’ which are more exact than, and sometimes different to, the text’s initial hypotheses. Thus, this chapter describes a voyage of discovery about the functions of criminal law in the sphere of labour or employment relations. It examines how these functions have shifted and been reconfigured during different historical periods, and how normative theories of the criminal law often diverge from the political uses to which the criminal law has been put by elected governments from time to time.

From the perspective of criminal practice, blackmail and extortion seem like fairly exotic offenses; prosecution for either is a relatively rare event. Yet no white-collar offense has received more serious and sustained philosophical attention than blackmail (and, indirectly, extortion). What explains this anomaly? The answer is that the very factors that make the so-called ‘blackmail paradox’ such a compelling subject of theoretical analysis — in particular, the uncertain moral basis on which the offense rests — also make blackmail and extortion disfavored in the real world of criminal prosecutions. This chapter does not attempt to resolve the blackmail paradox, but rather shows how it fits into the broader theory of white-collar criminal law that is being developed.

The concept of fraud is ubiquitous in white-collar criminal law, reflecting a protean and proliferating range of meanings. Not only are the fraud offenses among the most frequently charged, but they are also among the most widely and variously codified. This chapter offers a brief survey of the range of moral concepts that have been associated with fraud. It then focuses on the most central of these concepts — namely, deception — and, in particular, shows how the relatively flexible conception of deceit that helps to define fraud differs from the rigid concept of lying shown in the discussion of perjury in the previous chapter.

Bribery has a claim to being the quintessential white-collar crime: its perpetrators are typically upper-income professionals; it is invariably committed in the context of governmental or commercial activities; its harms are subtle and often attenuated; its victims are difficult to detect; and, often, the only thing that separates bribery from legitimate ‘gifts’ is a hard-to-prove mental element of willfulness or, even more obscurely, ‘corruption’. The potential for moral ambiguity in the crime of bribery is illustrated by the case of House Majority Leader Tom DeLay, who allegedly told Congressman Nick Smith that, in return for his vote for President George W Bush's Medicare bill, they would give his son, Brad, substantial financial and political support in his congressional campaign. The question is: was this bribery or just political log-rolling? This chapter uses this and other problematic cases to analyze two more foundational issues: (1) why is bribery morally wrong?; and (2) where should the outer limits of the offense lie?

This chapter offers a more historical and sociological perspective on the inclusionary and exclusionary effects of criminal law, determining who is inside and who is outside the polity’s ‘civil order’. In so doing, the chapter draws upon Lindsay Farmer’s work which tracks shifts in the structure and content of criminal law with shifting notions of ‘civil order’. The resulting analysis illuminates the shifting social functions of criminalization during different historical phases, especially as it relates to migration control and labour market governance. Legal norms have both reflected and constructed political and social boundaries, often based around racialized notions of ‘good’ and ‘bad’ migrants. The most recent phase of criminal law intervention conjoins highly deregulated labour markets and highly juridified migration regimes. This has been linked to the rise of populism and more authoritarian and nationalistic forms of statecraft. Nevertheless, this chapter asserts that we should avoid determinism in reading these historical shifts.

This chapter argues that the norm against stealing is clearly an essential ingredient in a wide range of criminal law offenses, often combined with some other moral norm to create a distinctive crime: thus, stealing plus deception constitutes fraud or false pretenses; stealing plus disloyalty constitutes embezzlement; stealing plus coercion equals extortion; stealing plus the use of unjustified force equals robbery; and so forth. The fit between stealing and the law of theft is far from perfect. Until recently, the criminal law of theft was quite narrow, applying only to the misappropriation of tangible property, and excluding such intangibles as a ride on a train, a deed to land, and stocks and securities. Thus, there were many instances in which X could be said to have ‘stolen’ something in the moral sense of the term, without being subject to criminal sanctions for theft. Conversely, there are cases in which X is subject to what is referred to by the law as ‘theft’ even though many people would say that he has not stolen anything.

This chapter considers the legal treatment of workplace harassment and abuse. In the wake of social and political activism focused on sexual harassment, the legal regulation of harassment has been under intensive scrutiny. In the English context, harassment is already regulated by an extensive body of legal norms. The Protection from Harassment Act 1997 is an interesting example where legislation provides for parallel tortious and criminal liability for the same wrong. The chapter develops the idea that criminal liability has had a ‘dragging’ effect on the civil liability regime, the effect of which has been to undermine the effectiveness of the legal response. This is because the paradigm of criminal liability has treated harassment as a personalized wrong, reflecting the structure of the criminal process to allocate censure and blame to culpable agents. The effect of this has been to obscure the structural and organizational context to harassment and abuse, which propagates in circumstances of insecurity, precarity, and non-decent work. As an alternative, the chapter defends an organizational framing of criminal liability based upon a health and safety model. It develops this model of criminal liability drawing upon the value of human dignity.

Legal theorists have made significant contributions to our understanding of the concept of promising. But their focus has almost invariably been on the law of contract. In light of the minimal degree of opprobrium that usually attaches to promise-breaking in that context, the idea that such moral wrongfulness might play a role in defining the moral content of crimes seems at first thought improbable. This chapter presents a brief examination of the norm against promise-breaking to explain how it differs from the other norms. It turns out that the moral content of a small but interesting collection of white-collar and regulatory offenses does in fact owe something to the concept of promise-breaking.

The focus in Part II has been on the various distinct ways in which people commit wrongful acts. The attempt has been to think about each kind of wrong in isolation — separated both from harms and one another. But it is important to recognize that such concepts are not wholly separable, and that there is in fact a potential for overlap among them. The chapter focuses on the nature of such overlap.

The significance of the norm against disloyalty (and the closely related concept of breach of trust) to our understanding of white-collar crime has been both over- and underestimated in the scholarly literature. On one hand, there are writers, such as Susan Shapiro, who have argued that violation of trust is the defining characteristic of white-collar crime. On the other hand, there are scholars such as John Coffee who have expressed considerable skepticism about the role that breach of trust should play in the criminal law. A more accurate assessment would arrive at a conclusion somewhere between these extremes. While the concept of disloyalty does play a significant role in defining certain key criminal offenses, such as bribery, treason, some acts of insider trading, and some frauds, it has little to do with many other core white collar offenses. This chapter explains the meaning of disloyalty, and foreshadows some of the ways that it plays a role in defining white-collar crime.

This chapter focuses on those penal statutes that make it a crime to engage in prohibited conduct, subject to regulation, that would not be viewed as entailing significant moral wrongfulness independent of its prohibition — regulatory offenses characterized as mala prohibita. It considers certain generic forms of regulatory crime, such as engaging in one or another activity without a license, failing to file forms required by the government, or failing to comply with some testing requirement. The question is: when, if ever, is it morally wrong to violate a statute prohibiting some regulated conduct that would not be viewed as morally wrong independent of its prohibition? Even if there is no generally applicable moral obligation to obey the law, there might still be specific cases in which conduct that is otherwise morally neutral becomes wrongful as a result of its prohibition. The chapter examines the possibility that such offenses are informed by the norms against cheating, promise-breaking, and disobedience.

Even compared to other white-collar crimes, tax crimes seem ambiguous in their moral character: no one likes to pay taxes, and most people take steps to minimize their liability; however, we recognize that taxes are the fuel on which a liberal society runs, and we resent it when others fail to pay their fair share. The nonpayment of taxes can be treated as a serious fraud, a minor regulatory violation, or perfectly lawful ‘tax avoidance’. Even when it is clear that a violation of law has occurred, there is great variability in whether it will be treated as criminal or civil, and the decision of how the enforcement agency will decide to pursue is different in different regions, with like cases often treated in quite divergent ways. This chapter identifies the basic issues that need to be addressed, and suggests a general and quite tentative characterization of tax evasion based, once again, on the concept of ‘cheating’.

There are at least two ways in which the concept of coercion figures in the criminal law. One is as an excusing condition: a defendant who, under the effects of coercion or duress, commits what would otherwise be a criminal act is regarded as blameless for his act, or at least as less blameworthy than he otherwise would have been. The second is as an ‘element’ of an offense: one who unjustifiably uses coercion on another does a blameworthy act, which will, if other conditions are also met, constitute a criminal offense. This chapter focuses on the second sense of coercion: it offers a brief account of what coercion means in the sense that it occurs in crimes such as extortion and blackmail, and says something about how the concept of coercion differs from that of exploitation, and why the latter form of moral wrongfulness is less comfortably subject to criminalization than the former.

At common law, perjury was considered one of the most odious of offenses. According to William Hawkins, perjury ‘is of all Crimes whatsoever the most Infamous and Detestable’. Under the Code of Hammurabi, the Roman law, and the medieval law of France, the punishment for bearing false witness was death; in the colony of New York, punishment included branding the letter ‘P’ on the offender's forehead. In recent studies of public attitudes toward crime, perjury continues to be viewed as a very serious offense. This chapter shows exactly what it is that makes perjury morally wrong, and how the contours of such moral wrongfulness shape the contours of the legal doctrine by which the crime is defined. It explains how an understanding of the underlying moral concept of ‘lying’ illuminates our understanding of the perjury case against Bill Clinton that was first mentioned in the Introduction.

This chapter explores the role of criminal law as an additional sanction against the breach of existing civil obligations in the contract. In the modern context, this chapter examines the ways in which property offences in criminal law might be used to deter contractual breaches. It focuses on the offence of fraud in the Fraud Act 2006, and in particular the role of criminalization where there has been a failure to disclose information. To this end, the chapter examines the current scope of disclosure obligations under the employment contract, focusing on the implied duties of trust and confidence and loyalty. There is considerable uncertainty about the scope and content of disclosure obligations, which raises serious rule of law concerns where these contractual obligations are, in effect, criminalized as instances of fraud. There is also a more general reluctance in English criminal law to criminalize omissions rather than positive acts, and a failure to disclose is an omission.