10 January 2009

Comment Cavalcade (1)

When I get a chance to today and Sunday, I'm going to highlight and answer some of the more interesting comments both from here and abroad that I haven't had the chance to answer yet:
You need a new dictionary. Malum in se is Latin for "evil in itself", not "wrong in itself" HUGE difference.
I was pretty sure malus means "bad", but it's been 25 years since I studied Latin so I looked it up:
malus (1) -a -um: comp. peior -us; superl. pessimus -a -um [bad , evil (physically or morally); unfavorable, unsuccessful, ugly]. N. as subst. malum -i, [an evil; harm, disaster; punishment]; as a term of abuse, [scoundrel].
So, yes it does appear that malum/mala is not intended as a part of malus and therefore means evil rather than bad. However, saying that malum defined as evil does not equal wrong is a distinction without a difference (gotta luv that phrase - never heard anyone but lawyers use it). Look in the thesaurus under "wrong" and you get this:
1 that which is morally unacceptable — see EVIL
They're synonyms.
Are you really positing that "..[an] angry woman who broke the public peace by habitually arguing and quarreling with her neighbors." is inherently evil? Really?
No, I'm saying it doesn't actually fit under either definition, but that the characteristics of the law fit more closely to the characteristics of laws we are taught to group under malum in se. It comes from the common law, has an ancient heritage, and was not enacted by statute.

"punishable by dunking: being placed in a chair and submerged in a river or pond."

this is not immoral behavior of the State? Really? Seriously?
In way back times punishment for every felony was death and other wonderful things like trial by combat, trial by ordeal, and branding existed. At that time the punishment you object to was probably considered a measured punishment. However, please note that by the time it was eliminated in the US, by State v. Palendrano, it was a simple misdemeanor like any other. It was banished from US law not because the conduct was deemed proper or the punishment onerous, but because it could only be applied to members of one sex.


1111 said...

Evil acts are wrong but wrong acts are not necessarily evil (sufficient/necessary). If one were to imagine a linear evil continuum; I do not believe an argumentative woman would be on that line. (However, I will admit my bias; I do not believe people are evil or that "evil" exists. The word derives substance from religion and works to dehumanize or categorize people so that we might punish with a clear conscious, imo)

Oliver Wendell Holmes Jr. addresses "way back times" in, The Common Law, to wit:

"It is revolting to have no better reason for a rule of law than so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished since, and the rule simply persists from blind imitation of the past."

It does not fit our definition because Common Scold is not recognizable to us as a crime. That it was ever a crime is a testament to the lengths we might go to subdue those around us. I will concede Common Scold was stricken because it applied to one sex if you will concede that the State and its many institutions invariably refuse to admit their own immoral behavior. The technicality is merely face saving.

There are much larger issues here.

Ken Lammers said...

Wrong and evil are both moral judgments and both subjective. Something is wrong because it is . . . You can plug in all sorts of words to fiinish that sentence but they all boil down to evil.

Congratulations. Other than me, you might be the only person I know to have read Holmes' book. I read it after becoming a lawyer and found only one useful line in the entire book - the part about even a dog knowing the difference between being stumbled over and kicked. Used it in a jury trial when I was defending a kid for swinging a phone by its cord and hitting a guard's hand.

Nope, the "State" is ammoral; it can even be said to be moral because of the necessity of socital organization. It is but a tool and blaming it for anything is to allow those using the tool to avoid personal responsibility. That means both the petty, bureaucratic clerk at the DMV and all of us citizens who don't vote for and demand better.

1111 said...

I see where you are going with "the state is ammoral" and if I were a barber, I would split that hair with you. But institutions are living breathing things as are people. Even if I am able to glean personal responsibility from a person within an institution, I'm not sure the institution itself is left with no responsibility.

I read an interesting dissenting opinion from Justice Marshall in: Board of Regents of State College v. Roth 408 U.S. 564 (1972)

Now I'm not buying into his reasoning 100% but it was an interesting angle to consider.