From: GBurch1@aol.com
Date: Wed Nov 25 1998 - 14:44:08 MST
In a message dated 98-11-23 04:00:10 EST, Max M Rasmussen wrote:
> On the surface it sounds like a good idea to eliminate the victimless crimes
> from the law, like drug abuse etc. But what about something like the
traffic
> laws, where there is no wictim at first for driving without a license or in
> other recless ways. Certainly more people will be killed or maimed. Isn't
> this a too high price to pay for the added freedom? I havn't made my mind
up
> yet.
A distinction is usually made in jurisprudential theory between two kinds of
crimes: malum in se ("bad in itself") and malum prohibitum ("bad because it's
prohibited"). The distinction between the two is that mala in se are held to
be bad for reasons extrinsic to the context of the act, e.g. murder is wrong
regardless of when and where you do it, who you kill, etc. Mala prohibitae
are held to be "bad" only because the context requires SOME rule, e.g. a road
system has to divide traffic going in different directions, so driving down
the road is only wrong if you do it on the "prohibited" side.
Problems arise when a "bright line" is drawn in the name of enforcement; for
instance, "driving at a dangerously excessive speed" is clearly a malum in se,
but driving 71 miles per hour on a road with a posted speed limit of 70, when
there is no traffic and conditions of visibility, etc., are good is only a
malum prohibtum. The more actors one has in a society and the more complex
that society is, the more general prohibitions of actually bad conduct tend to
get translated into sometimes arbitrary "bright line" prohibitions. IMHO, a
good jurisprudential theory should have "meta-rules" that will systematically
counter the development and enforcement of such specific "bright line" rules
as much as possible.
Greg Burch <GBurch1@aol.com>----<burchg@liddellsapp.com>
Attorney ::: Director, Extropy Institute ::: Wilderness Guide
http://users.aol.com/gburch1 -or- http://members.aol.com/gburch1
"Good ideas are not adopted automatically. They must
be driven into practice with courageous impatience."
-- Admiral Hyman Rickover
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