Tag Archive | "malum in se"

Malum In Se

gavel-3I had this very interesting discussion on the article Malum Prohibitum. My opponent was stressing that I had no right to declare any crime as malum in se (wrong or evil in itself) because I could not present an objective point of reference as to what constitutes right and wrong.

When I told him that malum in se can be objectively identified as those acts that “cause direct or immediate harm to person or property” – crimes such as murder, rape, kidnapping, theft, and robbery – he said that this is not objective enough.

I then said that using science and reason we can objectively measure the damage or harm certain things cause, like a bullet to a man’s head. He then replied that what if the bullet is put in the head of Hitler, wouldn’t that change anything? I’ll answer no; murdering Hitler would still be malum in se. But if my opponent’s question implies the death penalty, it does complicate the issue. If malum in se means “direct or immediate harm to person or property”, why do certain states execute (fatally harm) their criminals when malum in se is supposed to transcend laws and governments?

Now the good thing about being a freethinker is that discussions like this can be a great learning experience. For some people, discussions mean defending one’s position – and pride – to death. But for the freethinker, the ego only comes second to the pursuit of truth and knowledge. And I must say that this had been a great learning experience for me, forcing me to think and read up on the topic.

Let us first try to come up with a truly objective reference for malum in se. “Direct or immediate harm to person or property” was mentioned earlier, and that we can observe and/or measure this harm using science and logic. Let’s take the five examples of malum in se mentioned above:

1. Murder – heartbeat can be measured, and a lack of it can be observed.

2. Rape – physical, physiological, and psychological damage can be measured and/or observed.

3. Kidnapping – psychological and sometimes physical damage can be measured and/or observed in the victim, and if it is kidnap for ransom, damage to property can literally be measured in terms of money.

4. Theft – also damage to property that can literally be measured in terms of money.

5. Robbery – psychological and sometimes physical damage can be measured and/or observed in the victim, and damage to property can literally be measured in terms of money.

This looks clear and objective enough – until we tackle the death penalty again. What differentiates murder from penal executions in the context of malum in se? They both cause direct and lethal harm. So why do some states have the death penalty? If someone answers that the death penalty punishes and prevents serious crimes, I would say that a state has the power and resources to hold a prisoner for life; there is no need to kill him. And this really had me stumped for a while.

Then it hit me: semantics. I realized that I might have taken for granted the definition of malum in se as simply “wrong in itself”, and Wikipedia’s article being a stub didn’t help much. So I tried the online legal dictionaries and found this:

malum in se (mal-uhm in say) adv. Latin referring to an act that is “wrong in itself,” in its very nature being illegal because it violates the natural, moral or public principles of a civilized society. In criminal law it is one of the collection of crimes which are traditional and not just created by statute, which are “malum prohibitum.” Example: murder, rape, burglary, and robbery are malum in se, while violations of the Securities and Exchange Act or most “white collar crimes” are malum prohibitum.

It appears that malum in se is not absolutely objective after all but that which is considered generally wrong by a civilized society, and one of its differences with malum prohibitum (“wrong because prohibited”) is that civilized societies may sometimes disagree on what should be malum prohibitum, but not malum in se; no civilized society today condones murder, rape, kidnapping, theft, and robbery. And so when it comes to the death penalty, civilized societies simply haven’t agreed on this one, or at least not yet. (Same with abortion; civilized societies still do not have a general concensus as to whether or not a fetus can be called a person.)

As such, our secular morality (what is right and wrong in the context of malum in se) is based on what is beneficial to our survival and welfare as a civilized society. Humans are subjective, but they try to become as objective as possible using the disciplines of science and logic, and they get better over time in living peacefully amid the growing population. Just imagine if the world was already this crowded in the Stone Age or even during medieval times. Also, imagine that our technology and weaponry were already this advanced, but not our civility. Without laws to protect the rights of the weak, there would be no stopping man’s territorial instincts and greed from doing harm to humanity’s survival and welfare.

My opponent said that he doesn’t agree that our morality has improved over the centuries. He wrote:

“what i am saying is that “better” or “worse” cannot be proved. yes slavery for the most part has been abolished, women were allowed to vote, etc etc. but what of kindness? or love? or respect of human dignity? what of the increasing suicidal rates among developed countries? what of drug abuse? or pornography? or pedophilia? truth is evil existed then and also now.”

What is drug abuse and pornography compared to slavery? Sure, pedophilia is really bad, but we have serious laws against that now. But as for slavery, centuries ago certain governments (and the Bible) actually condoned it. What I’m saying is, while there are individuals today who do not respect the rights of others, our society or government will punish them for doing harm. As for suicide, we now have groups that offer help through counseling and suicide hotlines. It may not be perfect, but isn’t that clear, observable progress?

By the way, my opponent had also said:

“apart from a transcendent entity (one apart from us humans), there cannot be a truly objective point of reference for morality (what is right or wrong). this transcendent must describe morality, is highly moral (perfect, if you may), and must reveal itself to us so that our reasons are guided by its morality.”

I told him that I agreed but unfortunately, while it would be ideal to have a truly objective and perfectly moral reference point for morality, there simply isn’t one. To drive my point, I then asked him if he was willing to modify his statement into something like this:

“There is a transcendent entity (one apart from us humans) that is truly an objective point of reference for morality (what is right or wrong). This transcendent describes or has described morality, is highly moral (perfect, if you may), and reveals or has revealed itself to us so that our reasons are guided by its morality.”

And he said that he will assert that statement. Now I can’t wait to see him support that with hard evidence.

Posted in ReligionComments (18)

Malum Prohibitum

ten_commandmentsIn law, a crime can be categorized as either malum prohibitum (“wrong because prohibited”) or malum in se (“wrong or evil in itself”). In a civilized community, murder, rape, theft, robbery, and kidnapping are generally perceived as mala in se regardless of where they were committed or even if there were no written laws punishing them. On the other hand, illegal possession of drugs or firearms and traffic and tax violations are mala prohibita – crimes in certain societies because their statutes made them crimes.

It isn’t hard to see why some acts were criminalized since they compromise public welfare. Offenses involving drugs, firearms (possession), and driving are mala prohibita because they “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”. A drug user may enjoy his ‘trip’ peacefully, but there is the possibility that later on his addiction will lead him to steal, rob or kill to support his habit. A man carrying a gun might be a very responsible owner, but what if ego and testosterone take over during an altercation? Beating the red light may not be the same as deliberately hitting another vehicle, but it greatly increases the risk of collision.

Other crimes, on the other hand, are debatable (and have actually been the subject of widespread debate) as far as their rationality, logic and sensibility are concerned. I just mentioned a possible reason behind drug laws, but marijuana advocates over the world are clamoring for legalization, insisting that it is very much harmless compared to other drugs, including alcohol.

In the novel Primal Fear, there is a part that mentions malum prohibitum and malum in se:

Malum prohibitum is the way society defines the limits of acceptable behavior. So if everybody in the country wants to drink booze and booze is against the law, the law gets changed. But malum in se never changes. If everybody in the country suddenly went kill-crazy, they wouldn’t legalize murder.”

In the first half of the twentieth century there were certain periods in the United States and other countries when alcohol was illegal – not just the consumption in certain places or times, but also the manufacture, transportation, import, export, and sale of it. But the people loved their drink, and through their elected representatives they eventually managed to have the prohibition lifted.

Now let us see how malum prohibitum and malum in se apply to religion by taking a look at the Ten Commandments:

1. “You shall have no other gods before me” – malum prohibitum and does not even compromise public welfare

2. “You shall not make for yourself an idol” – malum prohibitum

3. “You shall not make wrongful use of the name of your God” – malum prohibitum

4. “Remember the Sabbath and keep it holy” – malum prohibitum

5. “Honor your father and mother” – malum prohibitum. M. Scott Peck, MD said that this is probably the commandment that did the greatest damage (although I disagree with him because the term used was ‘honor’ and not ‘obey’) because there are psychologically sick parents who make their children do sick things, and a child who follows this ‘divine’ commandment would surely do what his/her parents say lest his/her days will not be long.

6. “You shall not commit adultery” – malum prohibitum but also touches on morality issues

7. “You shall not murder” – malum in se

8. “You shall not steal” – malum in se

9. “You shall not bear false witness” – malum in se, causing direct and immediate harm to a person’s honor and might even risk the his/her property, liberty, or life

10.  “You shall not covet your neighbor’s wife or goods” – malum prohibitum. It is one thing to covet (immoderately desire), but it’s totally another thing to act on this desire.

Out of the Ten Commandments, only three can be considered mala in se – murder, theft, and bearing false witness. The rest are mala prohibita and do not even compromise public welfare. The Commandments do not mention rape, plunder, and child abuse, and these acts were clearly condoned and even commissioned in the Bible. Most of its ‘laws’ are about pleasing the religion’s deity, who is actually also guilty of murder and genocide (Sodom and Gomorrah, the great flood, killing of the firstborn, etc.).

Now all this begs the question: Is religion (and the Ten Commandments) an ideal basis for what is right and wrong? Should our society’s morality be based on what the Church declares as moral and immoral? Governments have created laws to punish and prevent every imaginable mala in se crime. However, religions seem to focus on malum prohibitum, and the things they prohibit do not even compromise public welfare, but simply undermine the source of their power and authority.

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Related article: Malum In Se

Posted in Others, ReligionComments (125)