What is Crime?


crime scene tape

When discussing law and morality, how can we define what constitutes a "crime" in any consistent and rational manner?

Malum in Se

A crime that is wrong in and of itself is known by the Latin phrase malum in se. This would include all violations of individual rights, which are in turn defined by rational recognition of reciprocal spheres of individual authority in their lives, liberty, and property. This includes things few dispute, such as murder, rape, theft, fraud, and vandalism. This is known as a "negative rights theory," because it defines a sphere of actions one cannot justly commit without trespass against another.

There is considerable debate among moral philosophies regarding the existence and standing of positive rights imposing an obligation to act, and whether failure to so act constitutes a crime that is malum in se. One obvious example might be the stereotypical racist diner owner who refuses service to a minority group. Do the minority prospective customers have a right to demand service, or does the diner owner have the right to refuse service to other people for any reason?

Malum Prohibitum

On the other side of the equation, we see laws that arbitrarily prohibit things that are not under the malum in se umbrella. These are called malum prohibitum crimes, or "wrong because it is forbidden." In the USA, the current drug prohibition is an easy example, as is the alcohol prohibition of the early 1900s. However, so also is every license and permit mandate, because every such thing is defined as "illegal unless we give permission" by the government.

Consider again the racist diner owner in the previous example. I would agree that his behavior is immoral, but I would argue that it is not malum in se since his right to property and association mean he has the right to refuse service for irrational and immoral reasons just as I have the right to not patronize his business. However, it is currently a malum prohibitum crime for him to discriminate against minorities. Is this a just response to his immoral attitudes?

Mandatory Crimes

Here we have the stickiest situation, where a government "law" approves, supports, or even mandates a crime. Genocides and slavery are easy examples, but I would argue that every malum prohibitum "law" necessarily mandates committing malum in se crimes in order to "enforce the law."

And here is where the issue becomes most important. Every piece of legislation is either an unnecessary redundant statement of rationally-derived moral principles, or malum in se criminal itself.


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Author's note: reposted from Steemit


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