Lying, Misleading, and Falsely Denying: How Moral Concepts Inform the Law of Perjury, Fraud, and False Statements
![handle is hein.journals/hastlj53 and id is 189 raw text is: Lying, Misleading, and Falsely
Denying: How Moral Concepts Inform
the Law of Perjury, Fraud, and False
Statements
by
STUART P. GREEN*
Introduction
The term legal moralism has traditionally referred to the view
that it is permissible to use government sanctions, including criminal
sanctions, to enforce prohibitions on conduct that is immoral but not
directly harmful (or even offensive) to others or self. Legal moralists
of this stripe thus embrace the anti-liberal view that the state may
legitimately criminalize acts such as adultery, incest, and prostitution,
even when performed in private by consenting adults.'
In recent years, however, legal moralism has also come to
mean something else. The term is now frequently used to refer to the
view that, as Dan Kahan has put it, law is suffused with morality and,
' Associate Professor of Law, Louisiana State University. I am grateful to Bob
Batey, Pam Bucy, Bernard Harcourt, Kyron Huigens, Paul Roberts, Greg Smith, and
Sarah Welling for their helpful comments on an earlier draft. Thanks also to Lohr Miller
for his excellent research support. No one should be deceived into thinking that the
author is not responsible for any errors that remain.
1. See, e.g., PATRICK DEVLIN, THE ENFORCEMENT OF MORALS (1965); JAMES
FITzJAMES STEPHEN, LIBERTY, EQUALITY, FRATERNITY (Univ. of Chicago Press ed.
1991) (1873). The opposing, liberal, view is that the only morally legitimate basis for
criminal prohibitions is harm or (in some formulations) offense to non-consenting parties
other than the actor. See, e.g., H.L.A. HART, LAW, LIBERTY, AND MORALITY 6 (1963);
JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARM TO OTHERS 12-13
(1984). Bernard Harcourt has recently argued, however, that the terms of the Hart-Devlin
debate have shifted in recent years. According to Harcourt, those who want to prohibit
prostitution, pornography, drug use, and other kinds of conduct that once were viewed as
harmless wrongdoing, now argue that such acts are in fact harmful to others or self.
Bernard E. Harcourt, The Collapse of the Harm Principle, 90 J. CRIM. L. &
CRIMINOLOGY 109 (1999).
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Lying, Misleading, and Falsely Denying: How Moral Concepts Inform the Law of Perjury, Fraud, and False Statements
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