culpability, criminal procedure, and state punishment, with sustained contributions in three areas: criminalization of disobedience, the principle of proportionality in criminal law, and the criminal jury and reasonable doubt. He has held visiting positions at Harvard Law School, Columbia Law School, NYU Law School, University of Chicago Law School, UCLA School of Law, Edmond & Lily Safra Center for Ethics at Harvard University, European University Institute, and LUISS Guido Carli. He serves on the editorial boards of Law and Philosophy and Criminal Law and Philosophy.
Lee applied the "Page 99 Test" to his new book, Criminalizing Disobedience, with the following results:
From page 99:Learn more about Criminalizing Disobedience at the Oxford University Press website.So, why is killing a grizzly bear wrong? One answer is that killing a grizzly bear is wrong because doing so could lead to the extinction of a species that is of “esthetic, ecological, educational, historical, recreational, and scientific value.” But how would you know if that is actually the case, and is it obvious whether the loss of grizzly bears would be a net positive or a net negative in the long run?Most people who come across a book called Criminalizing Disobedience would probably assume that it is about civil disobedience and protesters and activists punished for acts of political advocacy. So they may be puzzled to open the book and find a discussion of the Endangered Species Act and grizzly bears. What does that have to do with criminalizing disobedience?
That question gets to the heart of the book. One of its central claims is that many criminal offenses are best understood as “disobedience offenses.” At first, an environmental crime does not look like one. But here’s how the Endangered Species Act works. The statute authorizes the federal government to designate certain species as endangered or threatened. Once that designation is made, the species receives legal protection, and killing one of its members can become a crime. In that sense, whether killing a particular animal is criminal depends on whether the government has placed that animal within a protected legal category.
One might object that this is true of all crimes. The government can always change the law and decide what is criminal. But here’s the crucial difference. The crimes most people first think of as “crimes,” such as murder, rape, and assault, are seriously morally wrong quite apart from the government’s view of them. Their moral wrongness does not depend much on who holds office, what an agency has decided, or how a regulatory program has classified the conduct.
Killing a grizzly bear is a different matter. Now, I have nothing against grizzly bears. But most of us do not have an independent grasp of which species should receive legal protection, why one population is endangered while another is not, or whether the government has drawn the line correctly in particular cases. Most of us also do not think that killing animals is always wrong.
What matters morally, then, is not just the animal. It is the existence of a collective program for protecting endangered species, the designation of officials to administer that program, and the obligation to support it. My argument is that many criminal laws operate in this way. They punish failures to support the state and its programs, even if the relevant conduct may not be independently morally wrongful. That is what I mean by criminalizing disobedience, and the book is about how widespread the phenomenon is, how we should think about such crimes, and what happens when we disagree with the state or when the state is not what I call “cooperation-worthy.”
--Marshal Zeringue
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