Rule of Law or Law of Rules?

You’ve heard people say it. Maybe you’ve said it yourself. “Well, he broke the law. He deserves what he gets. The law is the law.”

It’s a common viewpoint. If you break the law, you should live in fear of the law. If you don’t, you have nothing to fear. In fact, the law is your friend, because it protects you against harm. But is that really the case? There are an awful lot of laws, and nobody can possibly know them all. So maybe you break laws all the time and don’t even know it.

Last year, the eminent defense attorney Harvey Silverglate published a book titled Three Felonies a Day: How the Feds Target the Innocent, arguing that the laws in this country have become so numerous and vague that it’s virtually impossible to get through a day without becoming a serious lawbreaker. And for the most part, we commit these crimes without even knowing it.

Still, you break the law, you deserve what you get. Right?

But there’s law and then there’s law. A couple of simple Latin phrases spell out an important distinction. The phrases are mala in se and mala prohibita.

Mala in se is Latin for “bad in itself.” Deliberate murder, for example, is


obviously wrong. So are rape, robbery, assault and fraud. Nobody says these acts shouldn’t be punished. Mala in se acts harm individuals. They are committed by criminals with cruel intent.

Mala prohibita is Latin for “bad because it is forbidden.” Mala prohibita acts don’t, in and of themselves, harm the person or property of others. Drug use is a violation of mala prohibita laws. So is drunk driving that doesn’t result in an accident, or gambling, or carrying a concealed weapon without a permit, or jaywalking.

A mala prohibita act may indeed cause harm, indirectly. Someone who seriously abuses drugs may damage himself and cause emotional anguish to those around him. But that’s equally true of (legal) alcohol abuse. Similarly, a narcissist or an adulterer may cause intense anguish to others, but self-absorption and marital infidelity aren’t crimes yet. Also, a drug abuser may abuse or neglect her infant. But in that case, the abuse would be mala in se, while the drug use remains prohibita.

Many mala prohibita laws are perfectly reasonable and necessary to a functional society. For instance, there’s nothing inherently wrong with driving on the left side of the road. British people do it every day. But in the U.S., driving on the left could get you or somebody else killed. It’s good that some standard has been established.

Similarly, Col. Jeff Cooper didn’t codify the “four suggestions” of safe gun handling. They’re called the “four laws” or “four rules” for good reason. Although they don’t have the force of government behind them, they are nevertheless laws, because violating them can have deadly consequences for innocents, and you will rightly get thrown off any firearms range in the land for breaking them.

So far, so good.

Unfortunately, modern criminal justice doesn’t make a distinction between the two concepts of mala in se and mala prohibita. According to the U.S. Department of Justice, Bureau of Justice Statistics, about 265,000 individuals are currently in prison for non-violent drug violations. Most of those people never attacked or robbed anybody, but there they are. More than 90 people are arrested every single hour of every single day in the U.S. just for marijuana offenses— mostly simple possession, all mala prohibita. And let’s not talk only about drugs.

The Internet Gaming Prohibition Act of 1997 forbids anyone to “place, receive, or otherwise make a bet or wager, via the Internet or any other interactive computer service in any State.” The penalty is a $2,500 fine and up to six months in federal prison. Are the people who violate this law actually attacking or trying to steal from others? If some go crazy with it and lose the family home, well, that carries its own penalty.

Yet state-operated lotteries remain perfectly legal, as do hundreds of government-licensed casinos. Hmm. If gambling is “bad in itself,” how do you figure that?

Here’s another example: Until 29 July 2010, the State of Arizona had a law making it a crime for anyone to carry a concealed firearm without a government permit. “Constitutional carry” stopped being a crime on that day.

What is there about carrying a concealed weapon that made it wrong on July 28th but not on the 29th? The answer lies in history. Many mala prohibita laws are passed for what seems at the time reasonable purposes. But time proves that those purposes are not reasonable after all. So the law is changed.

For many years, in many places, influential people thought deadly weapons should be exclusive to the military and law enforcement, or to people who could convince the government that they had a special need. Time (and decreasing violent crime statistics) have shown that ordinary men and women can in fact handle guns beautifully. So over time, concealed-carry permits became much easier to obtain, state by state. Now citizens of a handful of states are taking the next step and saying that the permit system is not necessary at all.

Similarly, cannabis—once known as the dreaded marijuana, the infamous “reefer” that would drive good men to mass murder and cause innocent white girls to fling themselves into the arms of dusky-skinned lotharios—is now gradually becoming legal as people realize how benign, and in fact how useful, it is (and as states realize they can get more money by taxing and licensing it than by prohibiting it).

But in the meantime, many people suffer, not from “crimes” like carrying a gun or smoking a joint, but from punishments that are out of scale to the deed.

Many mala prohibita laws are simply there for the convenience, power and financial gain of our rulers. As part of the Obama Administration’s “Patient Protection and Affordable Care Act,” starting 1 January 2012, the IRS will demand that all small businesses and self-employed people fill out 1099 forms for the purchases of all goods and services that exceed $600 during a calendar year. Every single transaction.

many people suffer, not from “crimes ”
like carrying a gun or smoking a joint,
but from punishments that are out of scale
to the deed.

Buy a computer at Wal-Mart for your home business? You’ll have to get Wal- Mart’s tax ID number and report the purchase. Need a repair on the car you use in your business? You’ll have to get the tax ID number and address of the shop that fixed it and report the repair to the IRS. The paperwork increase will be horrific. Oh, and that includes the buying and selling of precious metals, including collector coins and bullion coins. It’ll put a lot of small-coin dealers right out of business, and certainly make it harder to use gold and silver as an anonymous store of wealth.

Why would the government do that? What on earth does it have to do with health care? Well, the government is running cosmic deficits and needs to squeeze more money out of the economy to keep paying for itself. By requiring literally billions more 1099s, the IRS hopes to track some of that money down. If people must be forced to suffer so the government can “help” them, if small businesses must go broke, if individuals must lose their privacy, so be it. The government aims to make itself healthier, and ultimately that’s the solepurpose of that law and most other mala prohibita laws.

The point is, what was perfectly legal on 31 December 2011 will (if the provision isn’t repealed) become a federal crime on 1 January 2012. You folks in federal law enforcement: good luck enforcing that.

In cases like this, mala prohibita IS mala in se (as my friend Tahn, who inspired this article, would say).

Here’s something else Tahn says about the glut of lawmaking in the U.S. It’s something everyone in government might do well to keep in mind: Mala in se = rule of law. Mala prohibita = law of rules.

I know there are readers of this magazine who won’t find any of this terribly compelling. Tomato, tomahto. It doesn’t matter how you say it; the law is the law, dammit. A lot of police officers read S.W.A.T., and many are probably saying to themselves, “If it’s the law, I have to enforce it, period.” But ultimately police officers may suffer as terribly as anyone. Officers wonder why their fellow citizens increasingly distrust them. Police officers may not make the law, but they are its visible face. People don’t see senators or bureaucrats every day, but they see the squad car in the rearview mirror. They see the officer by the side of the road, searching vehicles and seizing money. They hear neighbors’ doors being kicked in, often over activities they may indulge in themselves.

As arbitrary law becomes more and more of a burden, reasonable people start to distrust both the law and everyone connected to it. In a society with too many laws, everybody ultimately becomes a lawbreaker. Then, looking around at themselves, their friends, and their acquaintances—all perfectly decent people just trying to live their lives—they realize that laws themselves have become more of a threat to their well-being than a typical freelance bad guy.

Eventually, people begin to wonder who the real criminals are. And the answer isn’t the guy who’s smoking dope, the Saturday-night poker player, or the small businessman who makes a mistake on paperwork.

About Author

Claire Wolfe

Claire Wolfe is a libertarian author and columnist. Some of Wolfe's favored topics are gulching or homesteading, firearms, homeschooling, open source technology, and opposition to national ID and the surveillance state or nanny state.

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