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Tuesday, January 31, 2012

Malum in Se, Malum Prohibitum

Libertarians are quite correct to distinguish between acts that are malum in se (bad in themselves, like murder, rape, and so on), and things that are malum in prohibitum (wrong by force of law "only"). But then they too often make the mistake of thinking that there is nothing immoral about ignoring the law when it bans things that are "only" malum in prohibitum, or that these violations necessarily are not "really" crimes. It simply does not follow that, if something was morally unobjectionable before it was against the law, it is still morally unobjectionable after it is against the law.

A simple example: If roads were used by only a few cars and there were no driving laws, there would be absolutely nothing wrong with driving on whatever side of the road one chose. But once there are laws about driving, driving on the wrong side of the road is not "'wrong' merely because the government proclaims these actions to be wrong" (quoting Boudreaux from the post linked to above, italics mine). It is wrong because it will kill people. Once a law regulating road usage for two way traffic has been passed and made known, it is everyone's responsibility to follow it. Driving on the wrong side of the road, today, in our society, is really a crime, in the moral sense, even though it is "only" malum in prohibitum.

Certainly, there are laws to which the above reasoning does not apply. A law, for example, requiring non-Jews to turn Jews into the authorities for imprisonment clearly should not be followed. And there is a lot of grey space between these two examples: A law against marijuana usage is not asking me to do anything immoral, as was the anti-Semitic law just mentioned: It is not immoral to not smoke pot! So clearly I am not morally obligated to break such a law... but am I morally permitted to do so, if I feel confident that the law is itself wrong?

I can't give you any easy answers for the grey area. Except, perhaps, to distrust anyone who says they can, because... ain't no easy answers.

18 comments:

  1. FYI, Roderick Long and others libertarians such as Charles Johnson (aka RadGeek) have allowed a legitimate role for positive law such as in the very case you mentioned contra Spooner. I believe they have perfectly addressed the issue at hand and it's probably worth your time to take a look.

    Here is a snip from RadGeek's "Liberty, Equality, Solidarity: Toward a Dialectical Anarchism"

    "But while these options cover the bulk of both the criminal and the civil law, Spooner has overlooked one important possibility: there may be cases where the principle of self-ownership does not fully specify how to apply individual rights in the case at hand.

    It may be that respect for individual rights requires that cars going opposite directions on a highway should drive on opposite sides—so that drivers will not needlessly endanger each other’s lives. But self-ownership alone surely has nothing to say about whether motorists should drive on the left or the right. It requires that some rule be adopted, and that once adopted, each motorist obey it. But which rule to adopt is a question that needs to be settled by considerations other than individual rights. Medieval legal writers described similar cases as reducing the natural law (in the sense of making it more specific); the idea is to spell out the details for cases where the principles of natural justice underdetermine the correct application of individual rights. It may seem, then, that this ekes out a place for positive law-making in spite of the Spooner challenge: since there has to be some specification of how to apply rights in these cases, but more than one specification is compatible with the requirements of individual rights, a minarchist might think that you need a government to take on the prerogative of specifying which one to adopt.[27]"

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  2. "FYI, Roderick Long and others libertarians such as Charles Johnson (aka RadGeek) have allowed a legitimate role for positive law such as in the very case you mentioned contra Spooner. I believe they have perfectly addressed the issue at hand and it's probably worth your time to take a look."

    Yes, that's why I said libertarians "too often" overlook this role for positive law, rather than having said they "always" do so.

    You say it would be worth my time to take a look: Is there something you think I have missed in this post that I would get from their writings? If so, which in particular? (I hope I'm not being a pain in the arse, but my books in progress right at the moment must be about 20, so I've got to be picky!)

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  3. By the way, iceberg, I love that area around Ocean Avenue and Avenue P and lower! Close enough to the ocean to start to get the onshore breezes in the summer.

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  4. Speaking of that intersection, there was a recent NY Times article in the real estate section on the milestones erected in late 18th-century New York City, the last one which is still remaining on Ocean Parkway & Avenue P, a few blocks from where I reside.

    Was that just a lucky guess or was it your Google-Fu prowess?

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  5. iceberg, when an unfamiliar commenter arrives, I typically will click on his / her name link to see who it is, if I know them, etc. That very first click told me you were in Brooklyn, and piqued my interest. The second click led me to a discussion of making your own pizza, and a link to your local pizza shop. And, given your are, after all, in Brooklyn, and not in the middle of the Gobi Desert, your local pizza shop can't be more than a couple of blocks from your house!

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  6. In general, beautiful houses along Ocean Avenue. How do you like the area?

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  7. Aha! A close friend of mine wrote that singular post.

    About Ocean Parkway- in general I think the housing stock you will find is 75+ years old and in average to poor condition.

    But yes, there are some nice homes there too, specifically in the vicinity of avenues J, K, R, S, T, and not concentrated much elsewhere.

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  8. There's only one law that I break every day, can you guess what it is? I'll give you a hint, I am a musician. Haha.

    I agree with you for the most part, though.

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  9. I find it surprising that I disagree entirely. What you are citing is neither an abrogation of private property rights through "positive law", nor a way that property rights do not fulfill the need.

    Whether I drive on the right or left or down the middle depends upon the rules as laid out by the property owner.

    Intelligence will then note that it is more efficient to adapt the rules of my own property to others, since the expectation and practice of "driving on the right" means people will be safer and happier if their side of the road remains consistent.

    The "rules of the road" exist now as positive law, yes, but only because government owns the roads. If the roads were private, then the rules adopted by the road owners would not be "positive law", merely a contract entered into by the owner and those who choose to use the owner's property.

    Proposing that it is not immoral to violate a rule that is solely "malum prohibitum" is an axiom. Knowingly driving on the left where everyone else is driving on the right does not fit this definition, because doing so deliberately threatens the property of others by deliberately increasing the likelihood of dangerous collisions.

    The same can be said of dangerously traveling faster than others, for instance weaving in and out of dense traffic, even if doing so does not break the speed limit. It may in some sense not be "illegal", yet it doesn't make it right.

    The danger of positive law, in my opinion, is that it makes it seem like there is only what is required, and what is prohibited. No room for personal choice.

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  10. Curt, I have noted in many posts why "property" does not solve the problem of positive law at all: one needs positive law to even define what property is.

    And the idea that positive law leaves no room for private choice is just flat out wrong. See, e.g., Hayek, Law, Legislation, and Liberty.

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    1. "Curt, I have noted in many posts why 'property' does not solve the problem of positive law at all: one needs positive law to even define what property is."

      I'm unsure as to how to interpret this. Are you saying that any concept of property implicitly relies on some notion of positive law? Or that law preveds property? Does this in some way blow apart Rothbard's property-and-contract reductionism?

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  11. "It is wrong because it will kill people. … Driving on the wrong side of the road, today, in our society, is really a crime, in the moral sense, even though it is "only" malum in prohibitum."

    Doesn't acting in such a manner as to actually, factually endanger life and limb constitute something other than *only" (<-- key word) malum prohibitum?

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  12. "Doesn't acting in such a manner as to actually, factually endanger life and limb constitute something other than *only" (<-- key word) malum prohibitum"

    Yes, Nathan, my point exactly.

    But it did not do so before the positive law was passed.

    An example: The UK passes a law declaring "This driving on the left side of the road nonsense has gone on long enough: January 1, 2015, we switch to the right side."

    On December 31, 2014, there is absolutely nothing immoral about driving on the left. But on Jan. 1, 2015, it becomes malum in se. Why? *Because the positive law changed.*

    This is what I say is often missed. Just because something was not malum in se before a law was passed does not mean that it is not so after the law passed.

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  13. "Just because something was not malum in se before a law was passed does not mean that it is not so after the law passed."

    Right, and I dunno anyone who'd say otherwise. The concern, as far as I've seen, is avoiding legal positivism. The gripe is with law which *does not* make something malum in se, not that no law *can*. (Of course, it's not really "law" per se doing that, but the need of specification. It might even be the case for some things, such as which side of the road to drive on, that an absence of "law"/specification is a sort of malum in se, itself.)

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  14. "Right, and I dunno anyone who'd say otherwise."

    Well, I did give links in my original post to pieces that, while not explicitly *denying* this point, do strike me as ignoring it.

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  15. Henry Hazlitt makes a similar point in "The Foundations of Morality". Some rules are arbitrary, but should be respected, because their value lies precisely on the fact that they are respected by most. Traffic signals is the example he gives.

    It's a great book.

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  16. "Just so", he says.

    Couldn't the same be said of most things? I mean, in the understanding of the social sciences, almost all of it is "just so". Is it not? I guess what I am really saying is that almost *anything* can be up to interpretation, otherwise we would not disagree upon these things so much.

    It is the agreement of interpretations that yields the intellectual fruit, which requires both interaction and cooperation. Rarely does a thing go unsaid that does not also create division between us. This, I think, is the greatest burden of both understanding and intellectual pursuits-- the ability to render all false interpretations impossible.

    We certainly have a LONG way to go....

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