My jurisprudence professor in law school was Jesuit-trained and metriculated in a succession of Roman Catholic institutions of higher learning. Few law students took the seminar, and some who signed up thinking the course a snap soon learned legal philosophy is a difficult subject, but one of the most valuable things I took away was insight into the distinction between a malum in se and a malum prohibitum. The former is an offense that is universally abhorrent, such that it is a crime in and of itself, and for these reasons when such crimes are prosecuted a heightened concern arises for due process abuses and/or denial of equal protection under the law. An example might be statutory rape. A malum in se if there ever was one. There is a pecking order in prisons just as in Hell, and cons aren't kind to child mashers. Gang bangers will call the offender "short eyes" and warn him not to shower and bend over for dropped soap.

The malum prohibitum, on the other hand, is an offense that is a crime just cause some legislative body decided it should be. Many of the mala prohibitum are asinine and lend credence to that old Shakespearean speech by one certain that "the law is an ass." In South Texas, where I live, people make that "the pinche law is an ass." Mala prohibitum include the so-called victimless crimes. You get psychobabble from defensive incarceration corporations, guard unions (if successful in a red "right to work" state), and gun-totin, rootin' toot'n cowboy types who probably sneak a bit of weed now and then. Over half of the people in American prisons are there for drug charges, but the War on Drugs has cost billions and cannot be won. Legalization of small amounts of cannabis for personal use, as well as dispensaries for those who have a serious medical condition alleviated by weed, including those who are having chemotherapy, for whose side effects cannabis is 95% effective.

We simply have too damn many mala prohibitum in the United States.

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I see a great debate in the works. Is the "crime" of sodomy a malum in se or a malum prohibitum?

(Reminds me of the old joke -- How can you tell a good defense lawyer? He can get a sodomy charge reduced to following too close.)

Bertold, if you take the broad definition of sodomy, it malum in se. It is defined as a crime against nature, and includes both oral and anal copulation, along with intercourse involving humans and animals. As defined by Black's Law Dictionary, it is....

Sodomy 1. Oral or anal copulation between humans, esp. those of the same sex. 2.Oral or anal copulation between a human and an animal; bestiality. — Also termed buggery; crime against nature; abominable and detestable crime against nature; unnatural offense; unspeakable crime; (archaically) sodomitry; (in Latin) crimen innominatum. Cf. PEDERASTY. —sodomize, vb. — sodomitic, adj. — sodomist, sodomite, n.
“Sodomitry is a carnal copulation against nature; to wit, of man or woman in the same sex, or of either of them with beasts.” Sir Henry Finch, Law, or a Discourse Thereof 219 (1759).

But look at the date of the treatise quoted. Lgbtq people have a right to say "We've come a long way, baby," in imitation of the Virginia Slims ad, pitching nicotine addiction to women. Besides, Black's Law Dictionary definitions are just that: legal definitions. The Supreme Court has said that anti-sodomy laws affecting only persons of the same sex are a denial of equal protection under the law. In other words, it used to be that in some (mostly red) states, sodomy was legal for heterosexuals but not lgbtq people. That is obviously a gross invasion of privacy and disparity of penal law. The case that SCOTUS heard in issuing the opinion making lgbtq sex legal, or same sex, at least, was up from Texas and came about, I seem to recall, when two men wanted to have sex and a third got jealous and called the police, saying that there was a violent act going on (S&M?). When the cops arrived, they used an exigent circumstances excuse to violate the 4th Amendment rights of the "Sodomites" and broke in, arresting them per Texas's long-standing sodomy statute. The irony is that it happened years after England decriminalized same sex activity, and it had been merciless in its application. As the great Churchill observed, "Americans will do the right thing...after trying and failing everything else."




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