Malum Prohibitum or Malum In Se?

First published here.


Not many people are aware of two of the most important legal concepts in the world. These ideas go all the way back to Roman times and have been the basis for categorizing criminal offences for centuries, so if you've ever wondered what the legal difference is between driving too fast and killing someone with a chainsaw, read on.

Malum Prohibitum

The literal translation is "wrong because prohibited". Basically, this means something is against the law because someone decided it should be. Think parking in a No Standing Zone or dumping a broken washing machine in the park and you're starting to get an idea of a malam prohibitum crime. There's nothing inherently immoral in doing something that's prohibited in this way, but we accept the principal that those laws are there because they help society function.

Malum In Se

Meaning "wrong in itself", an act classed as malum in se is universally accepted as Just Plain Wrong. Lying under oath, for instance isn't considered a nice thing to do anywhere in the world because when you say "I promise to tell the truth" you're entering into an agreement that you'll act in a certain way. You're giving something to people that defines who you are in a very real sense and they're give you something in return: you're giving them your word and they're giving you their trust. If that kind of primal "contract" is broken, it can never be put right. That's to say, if you dump a broken washing machine and someone catches you, it's possible to pick the washing machine up and take it away again with no harm done. If you lie to someone, the lie will always be there.

Conflicts arise when people don't agree on each other's definitions of these two types of crimes. Some would say dumping your garbage in the ocean is inherently wrong because it destroys the environment. Others would say infringing someone else's copyright is inherently wrong because it's taking something without paying for it.

Both of these acts are actually malum prohibitum crimes. People have been dumping stuff in the sea for centuries with no problems because all their junk used to be bio-degradable, like excrement or rotting fruit. Nothing wrong there, but nowadays most of our garbage isn't bio-degradable so there is a problem - but if we all agree it's a bad idea and don't do it, the problem goes away and life goes on (especially for the fish who don't die from living in toxic water).

Before copyright was conceptualized, people used to copy each other's work freely. Actually, before the printing press was invented, the highest complement you could pay an author was to copy his or her book. In doing so, you showed how valuable you thought the author's ideas were. Nowadays though, creative works have been monetized so taking another person's work without rewarding them is wrong. Really.

No, I haven't gone off the deep end. Copyright infringement is wrong. However, there's a however: copyright is only a good thing when seen in the broader social context. If we all agree it's a good idea and respect it, life goes on without great authors starving in the gutter and great actors whoring to the highest bidder.

Er...hang on.

There are great authors who can't put a roof over their heads and there are great actors who sell their talent to hardcore commercial operations. What happened?

Oh yeah. The copyright systems we have don't work.

Not everyone agrees they're a good idea in their current form. Further, there's plenty of real evidence to suggest they're actually bad for a lot of people, which is probably why those people think copyright really sucks.

Okay. Let's think broader social context: think about the poor, starving artists. Are you doing that?

Now, what about the poor, starving auto manufacturers? Or the poor, starving pharmaceutical industry? Maybe we should think of the poor, starving tobacco producers? They've had a rough time over the last few years. Should we all go out and buy a pack of Marlboros to give 'em a hand? No?

Copyright today isn't socially equitable. Things are skewed to favour one particular group of people. This inequity is wrong. In fact, it's wrong in itself. Malam in se. There's a bigger wrong here and it's not because the "ordinary" people are "stealing" copyrighted work. Theft is the act of taking something with the intention of permanently depriving the owner of the thing. Taking something without paying for it is exactly what it says. Downloading a movie doesn't deprive the owner of the movie, hence it isn't stealing (and I will happily purchase a dictionary for entertainment industry executives who don't understand what the word "steal" means).

Downloading a movie without paying for it is thumbing your nose at the idea that someone can own an idea which, in it's natural state, doesn't belong to anyone in the first place.

We can change society's values so they functions in an equitable way: people who create things can be rewarded in direct relation to how much value their creation provides to everyone else. We can also change things to help the auto manufacturers and the drug companies and the tobacco producers, if we want to.

Intellectual "property" only exists because we (collectively) think it's a good idea, but at the same time We The People reserve the right to change our minds on the extent at which it should be protected.

Malam prohibita changes as we change. Malam in se will always be Just Plain Wrong.