There are two legal terms that I’d like you to get acquainted with. Malum in Se is the first. It is latin. I know, pretty fancy, right? It is used to describe an action which is simply wrong on the face of it. Murder. Theft. Assault. These are things which are typically considered malum in se offenses, because they are wrong, no matter what moral or legal code you ascribe to. They’ve always been wrong, and are simply wrong because they are… well… wrong.
The second term is malum in prohibitum which is used to describe actions which are wrong because they are prohibited, but not necessarily because they are wrong, per se. Walking on grass is not wrong on the face of the action, itself, but if it is illegal to walk on the grass in some public park, then this is a malum in prohibitum offense. There are hundreds of things codified in our law books that fall under this category. Gambling, for instance. Also, prostitution and the illicit drug trade fall under malum in prohibitum because they are not actions that are wrong on the face of it.
I apply a very simple acid test to something to decide if something is in se or in prohibitum and that test is simply this:
Does the act, when committed by one individual, infringe upon the fundamental rights of another without consent?
If it does, then it is an in se offense. If not, then it is in prohibitum.
“So, Goober,” you might ask, “what do you mean by “fundamental rights?”. My answer is simple. Throughout human history, it is obvious that we’ve been hard-wired to live by certain codes. Sometimes, we lived outside of those codes, but that was without fail to the demise of those who so chose. There are things that are hard-wired in the human brain as “wrong”, either by a higher force, or by evolution, or whatever you wish to claim, but the thing that is not in question is that they exist. Every time these rules have been broken, it was to the detriment of those who broke them. Throughout human history, it has been wrong within a society to murder, to steal, to use violent force upon another for no reason, or to bend him to your will, or to cause damage to another willfully. So, I believe that it is a safe bet to say that an individual has a natural, inalienable right to:
1.) Life;
2.) Property;
3.) Self-Determination;
4.) Good faith from and to those around him.
That means that only actions in violation of the above four rights, and only as they apply to the violation of the rights of an individual, can be described as malum in se. All else is malum in prohibitum and is therefore an attempt to codify and punish behavior that is not in conflict with basic human nature, and is therefore often times the codification of and punishment for things that were done by an individual that cause no harm to any other individual.
It is my belief that a good government will do everything that it can to minimize the number and effect of malum in prohibitum laws on its books. I do not believe that they can be eliminated totally. Hunting regulations, for instance, are in prohibitum laws that are necessary to properly regulate the “commons” of wild game. Without proper regulation of the commons, tragedy would surely ensue. Traffic regulations are another example of in prohibitum laws that are probably necessary. Rational men do not need traffic laws, but if you’d been driving with me this last weekend, you would have seen irrationality in such a massive scale (other drivers, not me) that you, too, would agree that they are needed.
That being said, there should be a very strict process through which in prohibitum laws are passed, by which there is proof of a compelling interest beyond a reasonable doubt to enact them, and one of the filters should be a measure of the harm caused by violations of the law. For instance, traffic laws exist because the consequences of irrational actions by one individual can effect another individual negatively, in the form of physical harm to himself and his property, which are in se offenses, even if they are accidental. Therefore, there is a strong basis for enacting these laws, because they directly regulate behavior that can easily indirectly cause an in se offense to occur.
An example of a law that does not meet this test is the criminalization of prostitution. When undertaken by two consenting adults, there is no third party individual being harmed by a malum in se offense, nor is there a possibility that there could be. For that reason, I cannot see why prostitution should be illegal.
And finally, back to the beginning…
“illegal” and “illicit” drug trade and use… Hot button topic, I know. To find out if it should be illegal, I apply my test. Is there any way which a legal drug trade could cause in se damage to a non-consenting third party individual? I could delve into this topic for hours, but allow me to point out that the legal trade of alcohol has been normalized back into the markets since it was “un-outlawed” in the 20’s. Before the prohibition was lifted, in se offenses from the illicit trade were myriad and constant. Once lifted, the market normalized into a legitimate trade and in se offenses are no more typical in this market than they are in any other legitimate market. A legalized market of trade in illicit drugs would not create in se offenses after a short period of normalization, just like the alcohol trade back in the early 20th century. So, count that out as a reason to ban it (and in fact, a reason to LIFT the ban, since the current, illegal trade is responsible for so many in se offenses on a daily basis that it is hard to add them all up).
Is there a reason that the use of illicit drugs could create in se damage to a non-consenting third party individual? Yes, without a doubt, the use of drugs can cause a person to do things – ugly, violent things – that they would not do if not under the influence. There is the possibility that an individual could be assaulted by a drug-addled person. But wait! Isn’t the same thing true with alcohol? Also, isn’t the prohibition on the private use of drugs an
Here is where theory gets muddy to some people, when they start to find areas where they perceive that there is an intermingled web of cause and effect here that is contradictory, and requires you to make a decision that violates someone’s rights, no matter which way you go. It is not muddy or unclear to me, however.
Whenever the conflict is between a malum in prohibitum and a malum in se offense, in se wins, even if the in prohibitum’s spirit is to prevent secondary in se offenses. That means that when faced with the possibility that allowing drug use could result in increased in se offenses, and the certainty that banning drug use will violate the user’s free will and right to self-determination, then you go with the certainty, and you don’t ban drug use.
“But Goober!” you might be saying, “I’ve just caught you in a conflicting statement! Didn’t you say earlier that it is okay to assign speed limit laws to a person, thereby restricting his ‘free will’ to go as fast as he wants to, in order to prevent personal and property damage to third parties? Why is this any different than banning drug use to prevent drug-addled people from rampaging through the streets?”
Remember, you have free will and self determination to do whatever you want to do, with only one caveat. Your actions may not infringe upon the rights of another individual. Driving recklessly endangers other individuals, and you do not have the right to do that. Taking drugs does not endanger other individuals. Taking drugs, and then going on a drug-fueled rampage does, but note the de-coupling of the drugs from the rampage – an act you cannot do with excessive speeding and reckless endangerment – they go hand in hand. Without the rampage, there is no in se offense.
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