An important legal distinction
Anglo-American common law has long distinguished between actions that are malum in se and malum prohibitum . Translated literally from Latin, the distinction is between an action that is “evil in itself” and an action that is a “forbidden bad.” In plain English, malum in se actions are wrong by their very nature — such as murder and theft. Malum prohibitum actions are “wrong” only because government prohibits them — such as braiding hair without a license or smuggling imports to avoid paying tariffs.
The distinction between right and wrong does not depend on government. Rape is wrong not because government says so, but because we understand it to be wrong in and of itself. If rape were erased from government’s criminal code, rape would not thereby become acceptable. And rapists would be punished by victims’ family and friends even without any state assistance.
There are often good reasons for obeying legislation. But we must be careful not to treat malum prohibitum actions the same way we treat malum in se actions.
It’s important to recognize that persons who commit malum prohibitum actions are generally not as ethically deficient or socially dangerous as are persons who commit malum in se actions.
The reason is that the state can declare pretty much whatever it wants to be “unlawful.” So, if we fail to distinguish malum in se actions from malum prohibitum actions, we fail to distinguish people who are truly harmful to society from those merely harmful to the state.
Consider Oskar Schindler’s courageous actions to save 1,200 Jews from execution by the Nazis, who then governed Germany. Had he been caught, the Nazis would have convicted him of a capital offense. But of course he deserves praise rather than condemnation for violating his government’s commands.
In Nazi Germany, saving from execution people guilty of nothing other than being Jewish was malum prohibitum ; clearly it was not malum in se — quite the opposite. Yet if we fail to distinguish between these two kinds of actions, we are forced into the bizarre conclusion that Schindler was ethically equivalent to a cold-blooded murderer.
An example from Nazi Germany is undeniably extreme, but helps make a valid point vividly.
A less-extreme example: blacks in the early 1960s who disobeyed Jim Crow commands that they not sit at whites-only lunch counters. They unquestionably violated legislative prohibitions approved by democratic majorities. These actions were malum prohibitum .
But they nevertheless did nothing wrong in itself. Only because we understand that right and wrong is not determined by the state do we today admire those fearless protesters who followed their consciences rather than state commands.
Of course, sometimes our consciences are distorted and evil. But this is no reason to look to government as the ultimate author of right and wrong. An evil individual can harm, perhaps, upward of a few hundred people. An evil government can harm millions.
Donald J. Boudreaux is a professor of economics and Getchell Chair at George Mason University in Fairfax, Va. His column appears twice monthly.