Two legal terms illustrate that fundamental split: malum in se and malum prohibitum.
Loosely translating from the Latin, malum in se means evil in itself, while malum prohibitum means evil because of prohibition. The distinction between these two cases is discussed in State of Washington v. Thaddius X. Anderson.
Criminal offenses can be broken down into two general categories - malum in se and malum prohibitum. The distinction between malum in se and malum prohibitum offenses is best characterized as follows: a malum in se offense is “naturally evil as adjudged by the sense of a civilized community,” whereas a malum prohibitum offense is wrong only because a statute makes it so.Malum in se offenses have a specific victim, while malum prohibitum offenses do not. More unkindly, malum prohibitum translates as "because we say so," we being whoever claims authority in that particular society. Malum prohibitum covers not only "this you must not do" but also "this you must do," as defined for "the good of society" by those in charge at that particular place and time.
The distinction between malum in se and malum prohibitum carves a clear and bright line across the legal landscape. This clear distinction is also found in discussion of the term rights, which are legal, social or ethical principles of freedom (negative rights) or entitlement (positive rights). Malum in se aligns closely with the principle of negative (or, historically, natural) rights, and stands in opposition to the principle of entitlement by virtue of membership in some group, generally called positive rights.
Malum in se defines acts that violate a person's security in his person or property, and are therefore considered "naturally evil as adjudged by the sense of a civilized community."
The Non-Aggression Principle
The legal concept of malum in se finds its expression philosophically in the principle of non-aggression, a theme repeated throughout history. The Bible's golden rule, "Do unto others as you would have them do unto you" is one such expression, and most religions, including Buddhism, Hinduism, Islam, and Judaism express the same concept. Epicurus, in 300BC, declared "Natural justice is a symbol or expression of usefullness, to prevent one person from harming or being harmed by another," and philosophers have echoed his sentiment through the ages. Thomas Jefferson expressed it succinctly in the Declaration of Independence, and more eloquently in other of his writings.
No man has a natural right to commit aggression on the equal rights of another, and this is all from which the laws ought to restrain him.Herbert Spencer's law of equal freedom states "Every man is free to do that which he wills, provided he infringes not the equal freedom of any other man," while John Stuart Mill's harm principle declares "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."
Most people practice the non-aggression principle in their daily lives. The non-aggression principle is at the core of every successful social interaction. People who violate the non-aggression principle are easily recognized and labeled as criminals.
The non-aggression principle is also found at the core of libertarian political philosophy. Indeed, to the best of my knowledge, the only political philosophy that holds the non-aggression principle as its central tenent is libertarianism.
Evil is not hard to define. As we have seen from our exploration of malum in se and the non-aggression principle, evil is not relative; it must be judged from the viewpoint of the victim. Evil is taking from another their life, their liberty, or the product of their life and liberty, their property. This has long been the foundation of common law in all civilized societies. Indeed, it may well be considered the definition of a civilized society. Judged from the viewpoint of the victim, we see that equal treatment under the law is a necessary cornerstone of that civilized society, and unequal treatment under the law is simply legalized victimization.
Evil is not determined by a dictator, nor by the popular vote. Evil cannot be legislated out of existence. Two people may not decide it's not evil to kill a third, or enslave him for their own benefit, or rob him of the product of his life and liberty. Nor may ten, or a million. Nor may those two, or ten, or million, appoint one among their number to kill or steal on their behalf, and wash their hands of the guilt. Pontius Pilate learned that lesson well.
Those who wear the mantle of authority may not rightly claim that what is evil for one is right for the many, or for the one who represents the many. Yet the leaders of the collectives we call church and state would have you believe otherwise. Their whole justification is based on selling you that twisted lie from the first day you learn the terms of authority, and obedience, and self-sacrifice.
A just society cannot be based on the concept that the one may be declared the legal victim of the many for any reason, be that the color of his skin, the tenents of his religion, or his success in the marketplace. If we, as individuals, profess to live in a just and civil society, we must live as individuals, without dictators, and without the desires of the many victimizing any single person.
The Night Watchman State
The general concensus within civilized society in support of malum in se protection and the non-aggression principle suggests that a state that effectively protected its citizens from aggression, both from within and without, would find widespread support among its citizenry.
On the other hand, the current configuration of the modern state, with the assumption of unlimited power, its tendency to benefit the politically connected, resistance to criticism or change, lack of integrity, inability to accurately predict the outcome of its activities, tendency to repeat the same errors, economic malfeasance and outright incompetence, incessant growth, marginalization or criminalization of alternative viewpoints, tendency toward secrecy, and willingness to project itself into any issue, combined with the impracticality of the citizenry maintaining tight control, has led to the perpetuation of a monstrous system that pleases few and imperils everyone.
One branch of libertarian philosophy, known as minarchism (minimal state proponents) argue that the operation and maintenance of a nightwatchman state apparatus is the proper role for government. A nightwatchman state would be be responsible only for the police, the military, and the court and prison system.
Many minarchists also believe that the judicial system should focus on restitution rather than punishment, reserving incarceration for those convicted of crimes of violence from whom society needs protection. Any civilized society certainly requires some method of dealing with malum in se offenses. Contract adjudication would be handled by arbitration with the government court system as final arbiter in case of unresolvable dispute.
The benefits of such an arrangement are twofold; greatly enhanced freedom for individuals to pursue their own goals, and greatly reduced power for those in charge to abuse. Every system can be gamed if the rewards outweigh the cost. The most effective way to keep that problem to a minimum is to greatly reduce the scope of power that the government exercises.
A call for a libertarian society is not a call for an uncivilized society.
However, it stands firmly in opposition to automatically turning vast authority over a wide spectrum of the day-to-day activities of every business and virtually every individual over to one form of taxpayer-funded bureaucracy or another.
Today's mess and anarchy are not the only two options out there.
This is precisely why malum in se, malum prohibitum, the non-aggression principle and the social construct of negative (or natural) rights are fundamental to any discussions of good governance.
The next time you're in a discussion about the proper role of government, bring the concepts of malum in se and malum prohibitum, negative rights and the non-aggression principle to the table. Speaking of the unspeakable often forces one's opponent to face their own desire to game to system to produce outcomes that they may find favorable but that others may strongly oppose.
...and that's all I have to say about that.