Monday, December 09, 2013

Word of the day: malum prohibitum

Malum Prohibitum as opposed to Malum per se is my new word of the day. It is a latin legal phrase referring to things that are wrong because they are illegal in contrast to things that are illegal because they are wrong. So much of our troubles in government come from the expansion of the former and the waning of the later.

We should always ask of a law if it asks us to make illegal things that are not immediately wrong in and of themselves. In the past most law prohibited things that are wrong in and of themselves, things that one should be expected to know are wrong without their being illegal, things that you would expect anyone to know are wrong where ever they came from.

For instance, the laws against insider trading make things that are not only not wrong in and of themselves illegal but are actually reasonable and prudent illegal. If you hear someone at a party talk about how their company is going to have a bad quarter or that the people inside the company hate their new boss the reasonable and prudent thing to do would be to sell some of your shares. But in doing so you would run afoul of the insider trading laws which prohibit acting on information that is not public knowledge.

This causes problems. People break the law without realizing it. People end up being vulnerable to prosecution and afraid to talk to the police about other matters. The whole sense of the law as being something reasonable and something we can trust is diminished. This causes a loss of confidence in the law as people come to think of it as a game with rules too complicated to ever know. They get the feeling that the game is rigged. When someone is convicted of breaking the law there is less shame and sometimes even a sense of sympathy because they cannot be assumed to have done anything that is self-evidently immoral but may have merely made an enemy in the wrong place.

Glenn Renolds argues that a free society will have less malum prohibitum because the state would get out of the business of using the criminal law to regulate consensual relations between citizens and rely more on tort law and contract law to make victims whole through restitution rather than making the state richer (through fines) or poorer (through imprisonment).

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