The recent raid on an unlicensed racetrack in Southern Oklahoma is a perfect setting for a brief discussion on the difference between malum per se and malum prohibitum.
For those of you who didn’t go to law school, malum per se means ‘wrong in and of itself’. Murder, for example, is malum per se. It’s always wrong. It was wrong before anyone ever thought of writing down laws, and it will remain so.
Malum prohibitum means wrong because it’s against the law. Racing horses, and betting on the outcome, isn’t wrong in and of itself. In Oklahoma, in fact, the state government encourages people to do so, as long as they’re getting their cut of the profits. Horseracing, and betting on the outcome of horse races, is only illegal if you try to do it without Big Brother saying it’s okay.
See how it works?
Now, follow the headlines for the next few weeks, and try to divide all the stories that involve law-breaking into these two categories. You may begin to see a pattern – some things are only against the law because entrenched interests want to limit competition (do you really need a license to do most of the things that require licenses in this world?) or because the government wants to get a cut of the action (which is why you can legally play poker at a casino, but not in your living room), or simply because the government needs a way to tax stuff without calling it a tax (seriously, is that little sticker on the Coke Machine really there to promote the common welfare?).
I have a feeling that most of the reasons people get mad at the government have to do with the ever-increasing amount of things that are filed under malum prohibitum that really should be filed under laissez-faire.
What’s your favorite ridiculous malum prohibitum law?
Powered by ScribeFire.
[...] So, this poor guy gets arrested for running a horse-racing operation (recall our earlier post about malum per se and malum prohibitum), and for his trouble gets 164 years, deferred. [...]