I 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.