Our legal system is set up with the innate goal to protect, as the old adage goes, life, liberty, and the pursuit of happiness. As citizens of this country we put our faith in the system and trust that the laws are based on rationale and justice and exist to protect us.
Determining the nature of crime is undeniably linked to human perception. What we perceive as wrong, evil, and harmful is what constitutes crime. According to Ian Taylor in his book The New Criminology, crime is “…persistent precisely because it is the work of men with ideas defined as illegitimate within the existing collective conscience” (Taylor 80).
Natural crime, referred to as “malum in se”, translates from its original Latin to mean “wrong of itself”. The concept of natural crime covers actions that are deemed wrong regardless of whether they are enforced by law. This means that crimes that are considered “malum in se” would be universal, transcending any law system throughout the world.
These crimes have an inherent sense of wrong and harm and most any rational human would be able to identify a natural crime. Though most of these natural crimes are outlawed in most legal systems, there are transgressions that seem criminal by “malum in se” that are not outlawed in every country.
Specifically, crimes against civil rights such as the unfair restrictions against women in Afghanistan should be illegal but are actually committed with the protection of the government. Sometimes atrocities like these and others seem naturally wrong but require social outrage to warrant laws to prevent them.
“There can be no question that the common moral sense in the course of many generations sometimes undergoes a gradual modification as the result of the law recognizing the criminal character of a given act or divesting a given act of its previously recognized criminal character” (Garofalo 240).
For example, slavery was not only legal but an economic staple in America until the mid 1800s, despite the fact that as human beings we identify this as a “malum in se” evil. Even though today we consider slavery to be naturally evil, it wasn’t outlawed until Abraham Lincoln emancipated them.
Though we may see slavery as a natural crime, slave owners living during the civil war may have seen it only as a legal crime. To them, slaves helped support their business and make a living, so from their perspective, slavery wasn’t a crime because it was inherently wrong but simply because it had been made illegal. Legal crime or “malum prohibitum” translates to “wrong as prohibited”.
This means that legal crimes are acts that are considered to be wrong only because they are against the law. Many common crimes will fall under these laws, such as tax evasion and parking violations. In the case of parking violations, a handicap parking ticket comes with a heavy fee, even though technically it does no harm is being committed.
In the big picture though, parking in a handicap space when you don’t need it may prevent access to someone who does which, albeit on a minor level, does cause some harm. This and many other examples are why “malum prohibitum” laws are just as important as “malum in se” laws.
Another example: our legal system is set up to prevent any major corporation from gaining total control of their market. If we didn’t have boundaries like these then small business owners would be put out of work at an even more rapid rate, increasing the amount of poverty, unemployment, and suffering in our country.
Most of the crimes listed in the FBI’s crime index fall under natural crimes. These are separated into four violent crimes (murder, rape, robbery, and aggravated assault), and three property crimes (burglary, larceny-theft, and vehicle theft).
In general these terms can be broadened to include “…all breaches of the public peace or order injuries to person or property outrages upon public decency or good morals and willful and corrupt breaches of official duty” (Clark 13). The violent crimes are clearly “malum in se”. Naturally evil acts are composed of any assault or oppression on a person’s life and freedom.
Murder, rape, and assault provide an obvious threat of harm and death and under the rules of rationale, this constitutes a natural crime. The property crimes can also be considered natural crimes. Stealing money or items robs victims of the things they’ve earned and makes them feel fearful and violated; since inflicting such suffering on another being would seem inherently wrong, these property crimes are clearly “malum in se”.
There are, however, situations in which some of these seven crimes can be considered “malum prohibitum”. Euthenasia, for example, is considered murder and therefore is a natural crime. If the patient wanted to live and someone killed them, then this threat to life would be unjust and clearly “malum in se”. But euthenasia, by definition, is not forced or unwanted; the intention and outcome would not be evil and therefore can be considered “malum prohibitum”.
“…The existence of the moral sense alone can explain the solitary and obscure sacrifices which men are sometimes led to make of their most vital interests in order not to violate what seems to be their duty” (Garofalo 8). In this statement Garofalo solidifies the power of morality.
The sense of right and wrong that exists in a rational human being will keep him or her from committing a natural evil because of the innate understanding of what harm it will cause. There are countless loopholes and technicalities apparent in any legal system; thus, the analysis of natural and legal crimes is essential to our understanding of ethics and laws.
Sometimes the definitions of these concepts are blurred based on societal values and the nature of the times we live in. In the future we need to use our understanding of the system to make progress with laws that protect civil rights and to make changes in laws that are outdated or unjust.
Clark, William Lawrence, William Lawrene Marshall, Herschel Bouton Lazell, Thomson Gale. A Treatise on the Law of Crimes 1905. Keefe-Davidson Co: New York.
Garofalo, Raffaele. Criminology 1914. Little, Brown and Co: New York. 478 pages.
Taylor, Ian, Paul Walton, Jock Young. The New Criminology: For a Social Theory of Deviance 1973. Routledge: New York. 325 pages.