Stuart P. Green
Rutgers, The State University of New Jersey - School of Law-Newark
Law and Philosophy, Forthcoming
The concept of cheating is ubiquitous in our moral lives. It occurs in contexts as varied as business, sports, taxpaying, education, marriage, politics, and the practice of law. Yet despite its seeming importance, it is a concept that has been almost completely ignored by moral theorists, usually regarded either as a morally neutral synonym for non-cooperative behavior, or as a generalized, unreflective term of moral disapprobation. This article offers a "normative reconstruction" of the concept of cheating by showing both what various cases of cheating have in common, and how cheating is related to, and differs from, other morally wrongful acts, such as stealing, promise-breaking, deceiving, disobeying, and being disloyal.
A paradigmatic account of cheating is developed that entails two elements: First, the cheater must violate a prescriptive (rather than descriptive), mandatory (rather than optional), regulative (rather than practice-defining), and conduct-governing (as opposed to decision-governing) rule. Second, the rule must be fair and enforced even-handedly, and must be violated with an intent to obtain an advantage over some party with whom the rule-breaker is in a cooperative, rule-governed relationship. In the course of this analysis, the article offers a discussion of puzzling cases of "judicial cheating," "strategic cheating," cheating because "everyone else is doing it," "cheating oneself," "altruistic cheating," and "ulterior motive cheating." The article then applies the cheating paradigm in the context of white collar criminal law, arguing that the concept of cheating provides a better framework for explaining the moral wrongfulness that underlies and helps to define offenses such as tax evasion and insider trading.
JEL Classification: K14, K22, K34Accepted Paper Series
Date posted: September 16, 2003
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