08 January 2009
Malum Prohibitum - The Law School Hangover
For those of you who don't know, way back in law school most lawyers are taught a way to divide the law. The all-powerful professor looks down on his students and tells them that there is a line in the sand. On one side of the line are laws which are malum in se, on the other are laws which are malum prohibitum. All the law students look up confused;, the law is divided on the basis of whether an apple (malum) is "in its self" or "prohibited?" No, the kindly law professor explains, the other kind of malus - "bad." Ahhh. All the law students nod their collective heads, grateful for the enlightenment flowing from their beneficent law professor. And thus, one of the most contrived and useless legal divisions passes on to another generation of lawyers.
Malum in se laws are those which illegalize those acts which violate "the natural, moral or public principles of a civilized society." These are laws which have supposedly been around since time immemorial. The primary way we are told these are distinguished is that they were illegal under the common law.
Malum prohibitum laws are those which illegalize acts which would not, in and of themselves, be illegal. Generally, these are laws of societal organization and they were created by statutes.
It's a terrible way to think about the law, so anyone defining the two will stick to the most extreme examples. Premeditated murder is malum in se while jaywalking is malum prohibitum. Of course, any closer examination shows this attempt at organization to be badly flawed. For instance, Being a Common Scold would never fit under malum prohibitum. It's closer to malum in se, yet we have rejected this ancient common law as not comporting with modern sensibilities. It was malum in se common law from ancient times until the late 1960's - early 1970's. See State v. Palendrano 1972, 120 N.J. Super. 336. Malum in se is not the unbreakable granitic we have all been taught it is; it is just another construct for the organization of society. It is just malum prohibitum writ large. A better way of defining this breakdown would be pessimum prohibitum and malum prohibitum - a continuum from worst to least.
Why is this important? Because, the the impression our law professors leave us with from law school is that malum prohibitum laws are inferior. There's nothing actually wrong with breaking a malum prohibitum law since it is an illusory construct created out of thin air and the violation does no actual harm. This is absolutely incorrect.
The Legal Continuum: Pessimum to Malum
Every violation of a just law, whether it be murder or speeding, is an immoral act. Of course, the weight of the immorality of the two acts is not the same and that is reflected primarily in the punishment possible and the procedure used (no jury constitutionally required if potential sentence is less than 6 months). If an act does, in and of itself, major harm to a person or society it is highly immoral. If an act does lesser harm individual immorality is less. Each of these laws is immoral because it violates and disrupts societal order and organization.
It seems obvious, but let us examine why we don't assign equal weight to the morality of the two acts and therefore equal punishments. Murder ends lives. So does speeding. In 1996 there were over 19,000 murders in the U.S. In the same year about 13,000 people died because of speeding. This means that deaths because of speeding were 68% of deaths by murder. Yet, if a murderer gets 40 years a speeder doesn't get 27 years. Why not? Because immorality of murder is not distributed among as many people. The acts which result in murder involves few people and these few share responsibility for the murder. Let's assume 5 people committed one act of murder; each carries 20% of the responsibility for that murder. What about speeding? In 1996 there were 263,000 people in the U.S. and 67.7% of them were licensed drivers. That's 178,000 people driving legally. Assume 90% of them speed 2 times a week. That's 660,000 speeding events. Each person who commits a speeding event takes a share of responsibility for the 13,000 deaths for each speeding event. Each speeding event is 2% responsible for a death. Thus, if responsibility for a murder carries a 40 year maximum penalty we arrive at a .8 year maximum penalty for speeding.
Yes, I realize the model offered above is simplistic, makes assumptions, has all sorts of errors, and is wrong in all sorts of ways. Nevertheless, it makes the point. The greater the individual involvement in the damage caused other people and society the greater the moral culpability of that individual. For lack of a better term the minor offenses are "death by a thousand cuts" offenses. A singular violation does very little damage. A dozen violations probably doesn't result in much societal difficulty. A thousand may start to cause problems. If all 300+ million of us violate these laws there are serious effects.
Are There Laws Which It's Moral to Violate?
Unlike Tom, I do not believe that the institution of a law, either by a legislature (statute) or a judge (common law), carries an innate moral legitimacy. Laws can be, and have been, unjust - wherever they came from. However, laws are the rules of societal organization and therefore must be given some deference. They must be demonstrably immoral (slavery) or, if not facially immoral, lead to a demonstrably immoral result (segregation) before there is a right and duty to resist them. However, I do not believe that a mere disagreement with a law is enough to make violation a moral act. In order to justify violation of a law organizing society there must be a moral imperative.
And what would be a moral imperative? That's a discussion for another day (gotta get to work).
Author: Ken Lammers on 1/08/2009