Malum Prohibitum, Ad Nauseum


Column by Paul Hein.

Exclusive to STR

“I’ve got a tremendous idea,” you announce to your colleagues. “Wouldn’t it be great if everyone had health insurance?”

“You bet,” they agree--at least most of them.

“Well, let’s make everybody buy it. If some can’t afford it, we’ll subsidize it, somehow, and if they refuse, we’ll figure out a way to punish them for their selfishness.”

“Okay, consider it done.”

Or: You are outdoors, looking at a stretch of road. It’s reasonably straight, with only a few houses and business along the section you’re considering.

“What do you think? Fifty miles per hour about right here?”

“Well, I don’t know. I think 45 would be safer.”

“Okay, 45 it is. What shall we charge people who drive faster than that?”

“How about a hundred bucks?”

“This is a pretty affluent neighborhood. What about 200?”

“Okay, consider it done.”

If these opinions were offered by your neighbors, they would be little more than that: opinions. Everybody has them, and there’s nothing wrong with that.

But if these opinions are written down by people calling themselves “legislators,” then, magically, they become “law”!

That wouldn’t be so bad if the “laws” were just recommendations by these officials, but it’s more than that. If you were, God forbid, to violate one of these “laws,” you could be punished with fines, or even imprisonment, because you would have “broken the law,” and thus be subject to the “appropriate” punishment. You would have committed a crime! Your opinion would have differed from theirs!

In the classic sense, a crime is committed only if someone’s rights are violated. In other words, if you injure someone, or damage his property, you’ve committed a crime. It’s called malum in se, or “evil in itself.” The victim of your criminal act can bring you into court, and the government can dole out your punishment. Indeed, punishing criminals is one of government’s few proper activities.

If you don’t buy insurance, or if you drive 48 miles per hour in a zone marked Speed Limit 45 MPH, whose rights have been violated? Who has been injured, or suffered property damage? Yet you can still be charged with a “crime,” and fined, or even imprisoned. This is malum prohibitum, or “evil because forbidden.” Using the Latin phrase makes it much more impressive, as well as obscuring the fact that the “crime” is simply your preferring your own opinion to some stranger's.

The difference is very significant. It means that, although you have harmed no one, and damaged no one’s property, you can still be punished--severely--giving your own opinions precedent over the opinions of the legislators. We have all heard of cases wherein the police, at an unconstitutional checkpoint, have discovered a marijuana cigarette butt in a car, and wrought havoc upon the car’s owner, although he hadn’t smoked the cigarette, and might not have known it was there. Ironically, in such unconstitutional stops, searches, and seizures, the police themselves are committing a malum prohibitum, because their actions are in violation of the opinions of the Founding Fathers as expressed in the Fourth Amendment. And if they confiscate property, levy fines, or make arrests based upon these unconstitutional actions, their crime is actually malum in se, for they have violated the rights of their victim. Good luck in suing them!

How many people are in prison today without having committed an actual crime? The number must be staggering. It may be true that many people violate traffic and drug “laws,” recognizing that they are hurting nobody (and if they did hurt someone, there are plenty of laws to deal with that already) but, regrettably, these same people may acknowledge that if caught, they can expect to be punished; and they accept their fate with resignation. “After all, I WAS breaking the law!” Sadly, it is that attitude of subservience that makes government so profitable, because, as I might have mentioned before, government is all about money. As long as people accept the opinions of officious strangers as somehow superior to their own, the flood of money from the people to the Rulers will continue.

It’s the “law,” and don’t you dare ignore it! March along with the other lemmings, and jump off the cliff when it’s your turn. Alternatively, give the Rulers, whose opinions you have disregarded, a large sum of money. Their good graces are always available at a price.

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Paul Hein's picture
Columns on STR: 150


Glen Allport's picture

Nice, to-the-point column, Paul. It's clear and simple enough to make a good introduction to libertarianism (or "sensible thinking" as I sometimes call it) for someone who hasn't yet stepped outside the confinement of Statist conformity, but who has been thinking along the borders. When someone just says what's real in plain language, the way you do here, the truth becomes obvious.

Paul's picture

"Indeed, punishing criminals is one of government’s few proper activities."

Sorry, I disagree. Even if you thought that government was interested in punishing criminals (rather than being a haven for them), you'd still have to prove that punishing criminals is necessary, and that it can't be done without government. That is impossible. If someone tries to rob me, I can shoot him or stab him or beat him to a pulp. I can even simply warn others, who will refuse to deal with him, thus making his life impossible if he does not relent.

And even if you manage to do all the above, you still have a problem if your government is not voluntarily funded, because if it is not, then it itself is engaging in "mala in se" criminal action, theft.

helpfuljosh's picture

It would be nice if you had also used the first example of healthcare insurance again to make the piece whole. How are people punished who don't want Obama care but are forced to accept it. Is this comparable with penalties for a speeding ticket? The "evil because forbidden" is an eye opener in this case. We should weigh the evil inflicted on the people violating the law against the victims that it has saved from harm. But then you will end up comparing a fine (money) with what a life is worth or something like this. It would be nice if we had a scientific scale for "evil"!

When looking at marijuana drug violations the "evil" that is prevented does absolutely not balans the scale for all the people that are punish for breaking the law and not endangering anyone.