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Tag Archive | "malum prohibitum"

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

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