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Wednesday, November 21, 2007

But...but…CHISTIANS DID 'X'!!one!!eleven!

During my daily visits to several Web communities, such as Fark, Reddit, and Digg, I constantly see several threads about Group A wronging Group B, or members of a certain unnamed "peaceful" religion committing one of their daily atrocities, only to be dismissed as irrelevant by “progressives” in the community by bringing up Eric Rudolph (or ignorantly, Tim McVeigh) or some Christian slaughter or another that happened hundreds or thousands of years ago.

There's a part in one of my favorite books of all time, Primal Fear, were the protagonist lawyer, Martin Vail, explains to the jury the difference between two concepts that are the basis of Western criminal law; Malum in se and Malum prohibitum. From Wikipedia:
Malum in se (plural mala in se) is a Latin phrase meaning wrong in itself. This concept is a part of the "value consensus model" explanation of the origins of the criminal law. The phrase is used to refer to conduct thought to be inherently wrong by nature, independent of regulations governing the conduct. It is distinguished from malum prohibitum, which is wrong only because it is prohibited. For example, murder of human beings is universally agreed to be wrong by other human beings, regardless of whether a law exists or where the conduct occurs, and is thus recognizably malum in se. In contrast, consider driving laws. In the US, people drive on the right-hand side of the road. In the UK and other states of the Commonwealth, people drive on the left-hand side. This is an example of a malum prohibitum law because the act is not inherently bad, but is forbidden by policy, as set forth by the policy-makers of the jurisdiction. Malum prohibitum crimes are criminal not because they are inherently bad, but because the prohibited act is forbidden by the policy of the state. Crimes such as larceny, rape and murder are considered malum in se. This concept was used to develop the various common law crimes.
Malum prohibitum (plural mala prohibita, literal translation: "wrong [as or because] prohibited") is a Latin phrase used in law to refer to conduct that constitutes a crime only by virtue of statute[such as riding in the same car with non-relative male in Saudi Arabia], as opposed to conduct evil in and of itself, or malum in se. Conduct that was so clearly violative of society's standards for allowable conduct that it was illegal under English common law is usually regarded as "malum in se". An offense that is malum prohibitum, for example, may not appear on the face to directly violate moral standards. The distinction between these two cases is discussed in State of Washington v. Thaddius X. Anderson (Supreme Court of the State of Washington, 67826-0, decided August 2000) [1]:

"Criminal offenses can be broken down into two general categories -- malum in se and malum prohibitum. The distinction between malum in se and malum prohibitum offenses is best characterized as follows: a malum in se offense is "naturally evil as adjudged by the sense of a civilized community," whereas a malum prohibitum offense is wrong only because a statute makes it so. State v. Horton, 139 N.C. 588, 51 S.E. 945, 946 (1905) "Public welfare offenses" are a subset of malum prohibitum offenses as they are typically regulatory in nature and often "'result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize.' "

In debating the appropriateness of certain offenses or sanctions, one occasionally encounters the suggestion that conduct should be given more latitude on the theory that it is "merely" malum prohibitum. In an earlier version of this document, it was suggested that examples of malum prohibitum included parking violations and copyright violations (which, respectively, are at least arguably a form of trespass and a form of theft). Some laws, like tax laws, make ordinary conduct an offense if done without a license, stamp, or other official permission, and thus qualify as malum prohibitum. On the other hand, licensing is sometimes done for safety purposes (to prevent untrained drivers' operation of powerful motorized vehicles where the public is at risk[or driving in a car in Iran if you're a Woman], or to ensure that persons without minimum qualifications are not permitted to practice medicine or act as architects or sell services as a member of another licensed profession), and to prevent certain frauds or egregious violations of trust from being too easy; violation of such licensing rules, by virtue of the peril the conduct creates, arguably prevents such prohibitions from being merely malum prohibitum. For example, the risk to the public if one were not required to have a license and post a bond before issuing life insurance policies is so severe that purporting to sell life insurance while conducting an unlicensed, unbonded business is arguably tantamount to fraud. Because the definition given in Anderson depends on the 'sense of a civilized community', it is certain that the specific categorization of offenses as malum prohibitum and malum in se will be subject to debate whenever there is debate within the community as to what should violate the sensibilities of its members.

Whether "victimless crime" can be other than malum prohibitum may depend on how strongly one views the public need of social order, or how seriously one takes the risk of parties exercising over others such influence that their consent cannot be regarded as genuine (e.g., statutory rape, sale of banned addictive mental-state-altering substances, etc.). The degree to which one believes individuals should be protected from themselves often directs one's conclusions regarding whether conduct barred by current law is "merely" malum prohibitum. Under Anderson it is arguably the case that categorization of offenses varies with the society in which the judgment is undertaken.


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