Virtual Criminal Law Dualism

Since the start of the new millennium, technological and societal changes have initiated a transition from physical to virtual spaces. This far-reaching phenomenon has extended to the law and legal institutions, including the criminal law domain. This essay coins the term “virtual criminal law dualism” to describe the dynamic relationship between the virtual and physical spaces in the criminal law sphere. We contend that the transition to virtual spaces has manifested in two distinct aspects. The first relates to formal doctrinal, procedural, and institutional changes that the mainstream criminal law and procedure have undergone due to the emergence of virtual spaces and technological developments (“changes from within”). The second relates to the transformation of criminal law and procedure that occurs under the influence of activities taking place in virtual platforms (“changes from the outside”). By exploring the simultaneous developments stemming from the transition to virtual spaces, we analyze the meaning of these developments, discuss their implications, and offer future directions regarding their potential expansion. We argue that the interplay between virtual and physical spaces is normatively neither encouraged nor discouraged in and of itself. Its value relies on the overarching objectives of the criminal legal system and its capacity to further those objectives.

* Professor of Law and former Associate Dean for Research, Bar-Ilan University Faculty of Law; Co-Chair, The Israeli Criminal Law Association; Helen Diller Institute Visiting Professor, UC Berkeley Law School (2021–2023); Visiting Professor, Northwestern Pritzker School of Law (intersession, 2023-2024).

** Associate Professor of Law, Villanova University Charles Widger School of Law, JSD (‘20), JSM (‘13), Stanford Law School.

We thank all the “Rethinking Criminal Law through Virtual Spaces” symposium participants for their tremendous contributions to this symposium: Aya Gruber, Andrea Roth, David Sklansky, Marty Berger, Bennett Capers, Vincent Chiao, Alon Harel, and Sarah Lageson. We also thank Dave Goulden Naitove for excellent research assistance.

The full text of this Symposium is available to download as a PDF.