In the news today: Rosa Parks is dead at 92. Sad news for her relatives and fans, but it got me thinking about the law, and how I really love how the Internet has given the common man such an ability to learn. In a lot of discussions with friends and online opponents, I’ve ended up discussing law. Not being a lawyer, of course, I’ve had to go for common-sense answers. Today, finally, I found something online that was really helpful:
Malum in se vs. Malum prohibitum.
In short, Malum in se is something which is illegal because it is inherently recognized as wrong, such as murder, rape, and theft. Malum prohibitum, on the other hand, refers to things which are illegal because they further a policy or doctrine, such as speed limits, immigration policies, and copyright regulations.
I realize that a first-year law student already knows this stuff. Oh, well.
Anyway, it clears up a lot of my confusion for me regarding ethics. I’ve often tried to prove the point that sometimes breaking a law is the correct ethical decision, even though it may land one in jail. For instance, violating the current draconian copyright laws can be, in my opinion, justified in certain circumstances as civil disobedience.
Rosa Parks, who died yesterday, was violating a law by refusing to give up her seat. Yet who today would argue that what she was doing was immoral? I’d submit very few would.
The U.S. Revolutionary War was fought and won “illegally”. And yet, today, the participants are celebrated as heroes. Had they lost, they’d have been vilified as instigators of a civil war.
It’s an interesting thing. It seems like you have to break a law in order to challenge it. At what point is breaking that law justified? It seems as if many of our most bitterly-fought legal battles involve some question as to whether those laws are malum in se or malum prohibitum. The ones that come to mind are abortion laws, church/state separation issues, freedom of speech… core stuff.
Laws and Ethics
Matt, I’m not sure that these terms can be easily used to help distinguish between laws and ethics.
A lot of my thought-time with ethics has been less on morality conflict and instead focused on the state vs. individual conflict. Meaning, are the rights of the individual inherent and paramount to the rights of a collective state?
Given this approach, Malum prohibitum is contextually limited because a state doctrine that supports segregation is illegal even though many would view this (no black people in this white person seat) as a basic violation of an inherent right, Malum in se. Consistently dividing up ethics by these two rules may not be easy, given other engagement systems of ethics and laws.
On another note, having lived in the South for two years, I was told many times that the correct spelling of the Revolutionary War is actually “The War Of Northern Aggression That Isn’t Officially Over Yet.” These people are allowed to vote.
Rosa Parks rocks.
Which war was that?
Civil War, no ;)? You have to admit, slaverly clouded the much bigger issue–did the federal government have the moral authority to prevent secession?
This leads into your more disturbing second paragraph, in which you mention the “rights of a collective state.” I daresay such a concept is misguided at best, evil at worst. Collective states cannot claim more rights than the individuals that make them up. They are not independent entities, and as a result a discussion of “rights” is non sequiter. It reminds me of the book The Alchemist, in which the protagonist spends a lot of time “talking” to the desert. While this may be a nice image, it makes no sense–was he talking to the sand, the animals, the nonexistence of rain? Humans have the semantic ability to assign concrete characteristics to abstract ideas, but that doesn’t mean they make sense. And in the case of governments, they can be downright insidious.
I’m confused
Daniel,
I don’t follow your logic. I don’t think Sam was saying the collective has more rights than a state, but more that the collective may infringe on the rights on a individual.
I have the right to life, liberty, and the pursuit of happiness. Say my happiness results from singing Wayward Sun songs while running naked through the streets (think Justin meets Lady Godiva 🙂
Now my right to happiness would definitely be imposing on the rights of others in my “collective”; namely the right to hear music on key and keep their dinners down. So the collective infringes on my right to liberty by making me a guest of some psychatric hospital.
Personification isn’t logical when applied to deserts, but can make sense when applied to governments, because governments are made up of people. When I say the government is stuck in neutral, I’m saying the people who run the government are not working very hard to provide me the services I pay them for.
When I say the desert is telling me to run naked singing “Compulsive Fire”, then I’m saying that the stay in psych ward didn’t help much.
My $.02 Weed
EDIT by matthew: Fixed who this was addressed to.
Befuddled government
I dunno, I think I enjoy government which is paralyzed at the legislative level, and active at the executive and judicial levels. The fewer laws they make, the fewer I worry about breaking…
—
Matthew P. Barnson
Better logic, perhaps?
Your “collective” is really still boiling down to individuals–the collective doesn’t have to see your hairy butt, some individual does. So the question always comes back to what your rights are, and what another individual person can do to impinge on those rights.
As I’ve written about in detail elsewhere, and as much greater minds have written about in even greater detail still, the only natural right you have is your volition. And you may excersize that volition so long as you do not remove another’s. This can only be done through violence (or the threat thereof) or fraud. So, if you want to be noisy that’s great. I can plug my ears. If you’re noisy to the point of damaging my eardrums, it starts getting dicey. If you’re naked, I can (and will!) avert my gaze.
Does this lead to a world I’m totally happy with? Maybe not. But since when did it become my place to threaten a college student in Oregon who wants to get high? Never. Likewise, when did it become my place to sieze property from a successful person and give it to myself, my friends, or strangers? Never. And if I don’t have the right to do it, how can I give that right to a government? I can’t.
Does it matter if most individuals disagree with you? No. Your rights are derived from reason and natural observation, not popularity. To let the majority dictate what your “rights” are is to descend to mob rule. Such logic leads to the inevitable conclusion that slavery is okay as long as the slave-holders are in the majority, and other nonsense.
It’s obviously very convenient to talk about government as an entity: “The US remains committed to Iraq,” for example. But it’s totally backward to let your language drive your philosophy. Just because you can refer to something as an individual doesn’t mean it has the rights afforded to one.
Point of View
Your ideas about natural laws make wonderful sense if you’re coming from a scientific, natural background. However, our government, regardless of separation of church and state, comes from a religous background.
This background bases natural rights on what God says they are. And that’s wide open to interpretation. I feel the “Love you neighbor as you love yourself” is enough for me, but others think that meat on Fridays, gay people, and Harry Potter are attacks on our natural rights.
I enjoyed reading your earlier dissertations on the subject. I think it would work if (and this is a big if) parents would take responsibility for their children. I agree a dude in oregon should be able to get high if he wants, but I have to be in my child’s life enough to keep him from smoking pot with that guy, at least until he’s 18. A lot of freedoms we should be able to enjoy our children can’t handle until they’re older.
My $.02 Weed
Are you so sure?
I’m not so sure our government was founded on religious principles over rational ones. After all, Jefferson changed the Declaration of Independence from “sacred and undeniable” to “self-evident.” That seems like a pretty clear nod to Enlightenment philosophy.
I agree that trying to define rights based on religious beliefs is tenuous, even dangerous. It also removes the capability to rationally criticize a country like Iran or Maoist China. During the height of Mao’s power, for example, he created a cult around himself–this would effectively legitimize his regime, would it not? Takes us back to the Old Testament world of “my god can beat up your god,” rather than the more Enlightened, “reason dictates my government is better than yours… and if you pulled your head out of your rear-end you would see that.”
I think reason dictates an obligation for parents. Children are utterly unable to survive on their own from birth to majority (that’s the part that’s hazy, but could be agreed upon from a pragmatic point of view–13 for agrarian societies, 21 for ours, etc.), and parents are aware of this before they give birth. Thus, the choice to give birth is the entering of a contract with the new being. You can pass that contract on to a new parent (who then takes the same 18 year commitment), but you can’t just throw the baby in a dumpster. In exchange, children in essence sacrifice some of their volition to their parents. It is my right to restrict my child, even by force, in an effort to meet my obligations to him (but not just because I’m having anger management problems, lest someone think I’m defending child abuse here).
I’d be careful about what the government gets to do inside of that relationship; however, just as a citizen cedes some of his right to self-defense to a police force and military, a child has the moral right to claim a portion of his parents’ resources and can cede the defense of that right to a government authority (the police again). But that’s another thread…
Oops, clarification
The Founding Fathers tried to keep religion out of it, but it has crept back in recently. That’s what I was referring to when I said “comes from”. I apologize for the miscommunication.
When I spring my the idea of self, then it follows that there are others who have self as well, and their views are as valid as mine. Religion mostly invalidates the views of anyone but themselves, hence making it hard for two religions to coexist peacefully.
>>parents are aware of this before they give birth. Thus, the choice to give birth is the entering of a contract with the new being. You can pass that contract on to a new parent (who then takes the same 18 year commitment), but you can’t just throw the baby in a dumpster.<< If only all parents realized this... My $.02 Weed
Wayward naked..
Hey.. .how did you find out about that?
Look, they never conclusively proved it was me.
Oops! Civil War
Sorry! You’re right, I meant the Civil War. What was I thinking? 🙂
Also, I’m not taking a position on the issue of individual vs. collective state rights. I’m just bringing up the point to demonstrate to Matt that packaging laws and ethics into one simple test frame isn’t easy.
But since you write that “collective states cannot claim more rights than the individuals that make them up”, I’d like to introduce you to…just in the last 100 years…
-Russia -Cuba -Czechoslovakia -Germany
…and even…don’t hold your breath!…
-The United States of America
e pluribus unum!
Definitions, definitions…
A thief doesn’t have a right to your wallet, even after he takes it.
Cuba, China, and even the good ol’ USA are little better when they assert rights beyond that of their citizenry. (Happily the US is much less egregious–a little concerned about the trend line though.) They may cloak their immoral behaviour in the language of natural rights, but anyone with a nose can smell what it really is.
Such a minor issue, really…
>>>>> You have to admit, slaverly clouded the much bigger issue–did the federal government have the moral authority to prevent secession?
Well spoken, and I find that I do have to admit it: Slavery (or the rights of one person to hold another person in bondage) really is, in the grand scheme of ethics and this country’s history, a relatively minor issue, certainly when compared with the truly weighty matter of Federalist Debates, and it is good for us not to let such a little matter distract us from what’s truly important.
I blame our public schools, really (lousy government education), for telling us all this time that the Civil War (aka War Between the States aka War of Northern Agression) had anything REMOTELY to do with the evils of holding an entire race of people in unpaid mandatory servitude. Of course, after receiving costly college educations we now know that the Civil War was really about a rich cornucopia of issues, including the specific latitude/longitude of the border of Missouri, import tariffs, and Southern rights (specifically, the right to own… whoop, back to that minor slavery point).
If only we could educate the current African-American population, show them how the Civil War really wasn’t about them at all… show them that it would have been better if the Union had let the Confederacy secede: Sure, they still would have been in bondage, but the greater good of Goverenment Non-Interference would have been achieved! Maybe then they’ll finally get less offended by the Stars and Bars. I certainly hope there are some private educational systems in place ready to teach this sort of thing.
Yes, whether or not the government had the right to prevent secssion is EXACTLY the issue that was foremost on Rosa Park’s mind when she thought of the Civil War, I’m sure.
—————————– “I’d rather be happy than right.” “Are you happy?” “Well, no… I guess the whole thing falls apart there, doesn’t it?” Arthur Rowan
In Daniel’s defense
I hope what Daniel meant by his statement was that the war didn’t occur because of slavery, but because the South tried to secede from the Union. Had the South not seceded but refused to stop slavery, would the war have occurred?
It’s like saying you’re in a war against terrorism, while really it’s all about having a presence in the biggest oil supply in the world. If we somehow defeat terrorism, that’ll be what goes in the history books, but that’s not why we’re there at all. If terrorism was the problem, we’d be in Iran and Syria as well.
I HOPE that’s what Daniel was getting at 🙂
My $.02 Weed
War on terror…
Hey, its justified, I think.. it got me cheap gas..
Wait a sec.. $3.19… aww crap.
Touche
Now, now, I didn’t say it had nothing to do with slavery, and perhaps one sentence was too pithy of a reply for my own good. Let me clarify.
It is pretty clear that the South seceeded from the Union over the issue of slavery, which it felt would be attacked by the Lincoln Administration. During his inaguration speech, Lincoln saught to assuage those fears (Jefferson Davis had already been elected by this point, but Ft. Sumter had not yet been fired on) by very clearly defending the states’ rights to keep slaves. He did, however, come down very harshly on the idea of secession. You can read it for yourself if you’re interested. Keep in mind that a number of slave states stayed in the Union. I am supremely confident that the Union found slavery (speaking collectively, whoops) abhorent, but I’m not so sure they would have started the Civil War themselves if the South had ignored a “Roe v. Wade” type decision that declared it illegal. It took secession to “pull the trigger.”
If you do not think it was a question of Federal vs. State sovereignty, then it becomes an issue of one government attacking another government because it is behaving immorally. If you believe that such a thing is good policy, then you better make sure you’re consistent in your stance on Iraq, which saw hundreds of thousands die under an oppressive regime. You might also think about supporting an invasion of North Korea, Iran, etc.
If I remember correctly
The unrest between the industrial north and plantation south has been brewing for a while, and slavery became the flashpoint to ignite the war…the straw the broke the camel’s back…the Archduke Ferdinand if you will.
It’s not saying that slavery wasn’t bad, it just wasn’t the real reason for the war. It became a very positive outcome of the war, but it was more the rallying cry than the catalyst.
My $.02 Weed
Subtle sarcasm explained..
Slavery is arguably one of the most influential things in our country’s history. It and the events after the slaves were freed has shaped the culture in which we live.
Why are so many of the rich people white and so many of the poor people black? Because we took black people away from their land, brought them here, bred them in high numbers with no education to speak of, then thrust them into “freedom” with no education, no money, no land, no property, and forced them to either sharecrop or move to the industrial centers where they could do labor that didn’t require an education.
For white people, it may seem like slavery is a minor historical issue, but for the significant black population, especially the poor and uneducated, still living in the cycle we unjustly started, it is the most significant event in American history. Arthur.. I almost couldn’t tell if you were serious.. serves me right for skimming..
Oh, and why does your signiture seem so familiar?
Again
No one has ever said that slavery isn’t important to our history. The stated fact was:
The Civil War wasn’t really about slavery.
If the Civil War was really about slavery, then maybe we would have done a better job of cleaning up the South after it was over. But all the North cared about was keeping the South in the Union.
Just like the war in Iraq isn’t about terrorism. It’s about oil.
I agree white people caused the poor conditions of black people today, But, if black people need to realize it’s on them to pull themselves up. We’ve made the laws for them to be able to, but they has to take the onus upon themselves to better themselves. And it won’t happen overnight, major shift happen in the course of generations. Do you think racism will be nearly as bad when our kids grow up now that the most popular music around is rap and R&B? I’m not a racism as my parents, but I guarantee I’m more racist than my kids will be, and I try to be enlightened.
My $.02 Weed
Oil?
How is the Iraq War about oil? Unless you’re admitting that the Gulf War never ended (which was about political stability in a region that supplies vast amounts of oil to the world), which I doubt you’re doing, I’d really like to hear the thinking behind this.
Is it about terrorism?
It’s obviously not about terrorism, because Saddam didn’t support Al Quaida nearly as much as Iran and Syria. He was a non-secular dictator, and Al Quaida is very much about Muslim.
Afghanistan was about terrorism and making people pay for 9/11. Al Quaida was in Afghanistan, because we supported them when they fought against Russian in the 80s.
So why go into Iraq? Some people think it was because Saddam flicked his nose at GW’s daddy. I personally hope that’s not true, but I don’t 100% rule it out. Why Iraq instead of some other country where terrorist hide? Algeria? Somalia? France?
I think GW thinks the US needs a presence in the area where the oil is. We had it in Iran until the Shaw (sp?) was overthrown. We’re the big dog so a lot of the countries tolerate us (Egypt, Saudia Arabia) but we’re not real popular. But if we can set up a pro-US government in Iraq, then we can guarantee oil for the forseeable future.
If there’s no oil in Iraq, it’s no different the Algeria or Somalia, and we’re not there.
Now I attribute a lot to GW, but I think it really comes from his staff. I really don’t think he’s a good leader. The only reason I voted for him was b/c I work in the defense indeustry and I knew that would guarantee 4 more years of plenty for my job. I’m not proud of it, but I have to take care of my family first.
So yes, I think GW used the first Gulf War and the 9/11 attacks as a “reason” we needed to liberate Iraq from Saddam, when it’s all about a US presence in an oil-rich area.
My $.02 Weed
That and more
I think the US would like to see more stable democratic governments in the area. Empirical evidence suggests that democracies (real ones, not ones where Saddam gets 100% of the vote) do not go to war against each other. While no stable government would shut off its oil supply, (and an attempt not to sell to the US would be futile, since oil is fungible), the only danger to adequate oil is an all-out regional war.
But I wouldn’t write off terrorism so quickly. Recall that in the early days of Osama’s limelight, he regularly talked about the presence of the US in Saudi Arabia (where they were enforcing the no-fly zone), the effect of the sanctions on Iraqi children, and the Israeli conflict as reasons for killing the infidel. There were a lot of Arabs blaming America for what was happening in Iraq (as opposed to a certain palace-building thug), and GW knew it had to be put to rest.
That left two options: 1) withdrawl all US forces (admitting defeat to Iraq and Al Quaeda, or 2) defeat Saddam (resolving 2/3 of the push-button issues). Given that this was being closely watched by North Korea, Iran, Sudan, China, etc., showing that a rogue state could win through tenacity was a dangerous precedent to set. The Gulf War was clearly started by Iraq, and the terms its armistice had been clearly violated. People tend to forget we were having air-ground skirmishes on a pretty regular basis. In other words, the whole “send in the inspectors again” was not morally necessary, only politically necessary.
Obviously, this was going to lead to some ticked terrorists in the short term, but in the long term it was the best option to end the “quagmire” that Clinton let us slide into during the late 90’s.
A couple modifications, and
Weed,a couple modifications, and I agree with you wholeheartedly:
>>> The Civil War wasn’t really just about slavery.
You can’t say that slavery’s an important part of our nation’s history and then deny it any importance in the War.
>>> Just like the war in Iraq isn’t just about terrorism. It’s also about oil.
Or maybe even about democracy and freedom, just like President Curious George says. 🙂
>>>Black people need to realize it’s on them to pull themselves up. We’ve made the laws for them to be able to.
Yeah, that’s right in line with what I was… wait, what?
Maybe I’m reading that wrong, but it reads to me like since we passed some laws saying “You have to hire x number of minorities and by the way, hate is now a crime,” that somehow we’ve done our part and now it’s all up to them.
Laws don’t make people better; they don’t help people improve themselves. They just help to protect us from when people go bad. Things like stable living environments, education, *economic opportunity,* and career futures… those things can help people improve themselves. And there’s still a lot we can do to provide that.
I might be falling into Straw Man here, so call me on it if you see it, folks, but somehow I don’t think going up to a black teenager who’s grown up in gang territory in South Central LA and saying that since there’s laws now preventing us from putting you into slavery or making you give up your seat on the bus, the playing field’s even, so get a job and pull yourself up…
maybe it’s just me, but that doesn’t scan.
—————————– “Don’t panic.” Arthur Rowan
The Law
The one thing I’ve learned in my 2 months of law school is that the law is every bit as fluid and uncertain as ethics.
To quote Stephen Schwartz: “There’s one thing to be sure of, mate: There’s nothing to be sure of.”
— Ben
Rosa Parks and All
–” A person who continues to do the same thing’s, thinking they will get a different result… “. This is what I find amazing about this country. We as a country tend to go through cycles. Let’s look. We started out trying to enslave the American Indian’s then this became wrong and we justified it by giving them their own space. Then we enslaved anyone that was black. Then this became wrong and we gave them their freedom with rules. Then this became wrong, and people like Rosa Parks challanged them and won her right to sit where she wants. Women were the same way with the vote. We won the right to vote, however it is still difficult and culturally unsetteling to some if a woman has any signifigant power or position at all politically. As a country now we are doing these things to personal preference instead of color. For instance Gay rights. We started out with thinking it very wrong and deserving of beatings. Then we have ” Don’t ask Don’t tell ” and we still strip them of anything in their life that they may have built together over a simple word of “marriage”. Another case of freedom with rules. What is great about this country is that we can challange these injustices. We don’t have to live with them forever. However I want to know when we will stop saying that we have Freedom for all no matter of Race or Creed, when we keep repeating the pattern of segregation. Teresa the Flautist and fire dancer
Women and power
I think I’d be perfectly comfortable with President Rice, but I agree that many people might not be. In case you wondered when this “socialization of discrimination” begins to sink in, here’s a story from my own life, as experienced just two days ago.
The conversation was between my wife and my daughter, who is but 2 years and 3 months old…
D: Mommy, God is a girl. M: No, God is a boy. D: Well, what about Jesus? He was a girl. M: No, Jesus was a boy, too. D: Joseph was a girl. (That’s Joseph Smith, founder of our church.) M: No, Joseph was a boy.
D: Where are all the girls?
Out of the mouths of babes…
Girls…
Helen Mar Kimball was a girl… Mary Magdeline was a girl… Carol Lynn Pearson is a girl…
Does that answer the question?
——– *This signature is an experiment in Google Bombing mot propre
Mary Magedline… sure, that
Mary Magedline… sure, that should make the women happy… you can’t play the role of the Creator or the Savior, cause those parts are already taken by boys, but we have an opening for the Hooker with the Heart of Gold that we think you’d be perfect for. 🙂
—————————– “I can kill you with my brain…” Arthur Rowan
Jesus is a girl
Jesus had long hair. Explain that.
— Ben
Oh yeah…
Jesus never got to borrow his dad’s car as a result.
——– *This signature is an experiment in Google Bombing mot propre
Yeah, Christ was such a
Yeah, Christ was such a @#*($%* hippie…
—————————– “You of all people should know that plastic surgery can do wonders.” –Amber Fitzgerald “And you’re living proof that mistakes are sometimes made.” — Charisma Weaver
DC After Dark – http://www.buffydc.com
Arthur Rowan