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).


Tom McKenna said...

Ken-- I'm not a statist. In my comment to your previous post, I state: "the decision to wilfully violate a just law enacted by legitimate authority is itself a moral failing."

There can be, are, and have been, unjust laws. The determination of when a law is unjust is a thorny issue, since it is ordinarily not a matter of mere private interpretation, but ought to follow from at least some formal body of moral reflection accepted by norms generally recognized in classical Western moral reasoning.

Of course, slavery and Jim Crow are two great examples of such exercize in identifying unjust laws. While it is not easy or self-apparent how to articulate when a law is unjust, it is a task that can be accomplished... but as you say, that is a topic for another place and time.

Anonymous said...

Excellent post. Thanks. The malum in se/malum prohibitum distinction is about as useful as the distinction between general and specific intent.

I must say, however, I had trouble following your math :) I even busted out my Windows calculator to try to follow your speeding hypo, to no avail. As you say, though "Nevertheless, it makes the point." :)

Flash Gordon said...

"Speeding" is immoral?

Is setting the speed limit unreasonably low so that all traffic is "speeding" in order to write more tickets immoral? After installing a red-light camera at an intersection the politicians and bureaucrats have been known to shorten the yellow cycle in order to raise more revenue from "violators" even though the shorter yellow cycle increases accidents. Is that moral?

What is immoral is creating a dangerous situation for others. If politicians and bureaucrats had a sense of shame it might be immoral to speed because the speed limit would be set and enforced solely for safety reasons. But that is not the case and it never will be.

Shortening the yellow cycle to raise revenue from a red light camera is not just immoral. It is criminal. If anyone is killed in that intersection the politicians and bureaucrats who made the decision to shorten the yellow cycle to satisfy their greed for other people's money should be charged with murder.

Anonymous said...

Nice post. In violating the constructed laws of the state (as opposed to the 'natural laws' of society) a good rule of thumb is to give caesar caesar's due (ie. do the crime, do the time with head held high). God or History will look after the rights and wrongs of it all down the track.

And as to your last comment, that's got to do with the 'golden rule' (who has the gold, makes the rules). Not sure if a 'natural' or 'constructed' law, but one to ignore at one's own peril.

Anonymous said...

I just can't agree that all laws deserve our deference. At least not at all times.

Apparently, I'm not alone in that, as there are no human beings on earth who have not broken some law at some point in their lives. You actually may not even know when you've done it, but you've done it. But there's neither enough time nor enough honesty in the world for me to prove that statement. You'll just have to ask yourself if this is true of you. And, no, you don't have to tell. The government may not care about things like the Fifth Amendment, but you can.

And, incidentally, even the government breaks its own laws all the time. It just either ignores that fact, or pronounces it "okay." Usually for some "greater purpose" The latter is sometimes called "a balancing test" wherein the governmental interest wins. After all, it IS the government.

Laws end up on the books in all kinds of ways and from all kinds of sources, some of which, frankly, are not legitimate, however much they may have the stamp of governmental approval.

And although some laws just should not exist, there is often nothing a minority (particularly if it appears at the moment to be a minority of one: oneself) can do about it, other than ignore it.

Of course, in the end, our legal system breaks down to "might makes right." So ignoring a law which should not exist can bring consequences.

That still doesn't make the law right. And, for some people, it still doesn't justify giving it deference.

1111 said...

You need a new dictionary. Malum in se is Latin for "evil in itself", not "wrong in itself" HUGE difference.

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?


"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?

I'm beginning to feel like I'm on an episode of Punk'd.