Malum in se and its counterpart malum prohibitum are the paired Latin terms Bob Zadek returns to across The Bob Zadek Show to sort crimes into two kinds. In his formulation, malum in se describes acts that are bad in themselves — the very act is obviously bad in any culture — while malum prohibitum describes acts that are neutral in themselves but are made unlawful by statute. Zadek, an attorney, introduces the vocabulary as a lawyer’s shorthand and applies it to insider trading, drug possession, prison policy and immigration enforcement.
The distinction stated
Zadek’s fullest statement of the pairing comes in the 2011 episode on crime and prison costs, where he tells guest Veronique de Rugy that four Latin words sum up the subject. Malum means bad; malum in se are acts bad per se, and he names rape, robbery and murder as examples every culture would consider crimes and punish. Malum prohibitum, by contrast, covers acts that are neutral and not necessarily bad but that “we pass laws and make them bad” Crime Down: Prison Costs Up (2011). He places insider trading — the subject of a prior show — and marijuana and drug use in the second category, and argues the prison system is loaded with people who committed acts society merely decided ought to be bad for transient social reasons, leaving the public to pick up the tab for incarceration, meals and medical care with no benefit and indeed a detriment.
The same definition recurs in the 2015 immigration episode, where Zadek tells Alex Nowrasteh that malum prohibitum is wrong only because somebody in a legislative body decided an otherwise innocent or lawful act should be made unlawful. He calls such laws unnatural impositions, an attempt to legislate morality that cannot be legislated and to criminalize non-criminal behavior Immigration Nation: Nowrasteh Sets it Straight Again (2015). In the 2016 drug-war episode he restates it once more, this time as malum per se against malum prohibitum, with murder, rape and robbery on one side and marijuana possession on the other, adding that a criminal statute should reflect the morality of society and should not criminalize otherwise non-criminal acts Dr. Rick Doblin on MAPS and the War on Drugs (2016).
Void for vagueness and insider trading
The earliest treatment of the concept in the excerpts comes in the 2009 episode on insider trading, where Zadek credits guest Don Boudreaux with drawing the malum in se / malum prohibitum distinction and says he will return to it. Zadek’s argument there is that insider trading is a crime invented by a bureaucrat rather than a legislature, and that a basic tenet of criminal law requires a person to know what the crime is or else the law is patently unfair. He invokes the principle of void for vagueness and the old vagrancy statutes used to get homeless people off the streets, which were thrown out because nobody knew what they meant. Without that knowledge, he says, the deterrent effect of criminal law is lost, markets become inefficient, and a bureaucracy enforces on a random basis a law nobody understands Legalize Insider Trading (2009).
Boudreaux agrees and generalizes the point: in the Anglo-American tradition, criminalization is a powerful governmental action that has been abused often, so the government should be held to a demanding standard requiring that the criminalized thing be unambiguously bad and clearly specified. He identifies Rule 10b-5, the section of law used to criminalize insider trading, as incredibly and astonishingly vague, difficult to define and difficult to enforce, and concludes that the old principle of void for vagueness should apply and should eliminate at least the criminality part of insider trading Legalize Insider Trading (2009).
Prisons, three strikes and the drug war
In the 2011 episode the distinction anchors a discussion of incarceration costs. Zadek pairs it with what he calls the hysteria that produced California’s Three Strikes law, under which a third felony, however minor, puts an offender away for life as a career criminal; he recounts a story of a man whose third felony was stealing a slice of pizza Crime Down: Prison Costs Up (2011). De Rugy adds that in some California counties stealing something can be labeled a felony, so small thieves are locked up with violent criminals for long periods. Earlier in the same episode Zadek notes that California is under a judicial mandate to end prison overcrowding and that a federal judge has ordered the release of prisoners — a prospect he first found alarming but came to regard as a good idea if the release is selective and limited to non-violent prisoners. De Rugy agrees about releasing non-violent offenders who should never have been there while insisting the fundamental problem is the laws sending people to jail. She traces the hysteria to fear of drug violence and distrust of judges, which led states to enact mandatory sentencing on the premise that judges could not be trusted to sentence intelligently Crime Down: Prison Costs Up (2011).
The 2016 episode with Dr. Rick Doblin gives the drug war a political history. Doblin says marijuana was criminalized in 1937 through the Tax Act and removed from the pharmacopoeia in 1942, in part through Harry Anslinger and prohibition agents looking for something else to criminalize after alcohol prohibition ended, targeting Mexicans using marijuana and black jazz musicians. He notes the American Medical Association argued against criminalization and was ignored, and recounts the Ehrlichman account that Nixon, unable to criminalize the ideas of civil rights activists and hippies, could selectively criminalize the drugs they used, exaggerate the risks, and use the penalties to break up groups and arrest leaders Dr. Rick Doblin on MAPS and the War on Drugs (2016). Zadek endorses that account and adds that Nixon commissioned the Shafer Commission, which recommended that penalties against drugs not be worse than the drugs themselves; Doblin says Nixon ignored it. Zadek also cites racist roots of drug regulation, quoting a Journal of the American Medical Association editorial on cocaine and Negroes, a blue-ribbon panel on the Chinese and opium, and a New York Times article on Negro cocaine fiends, and notes that the Sears and Roebuck catalog once sold a syringe and a small amount of cocaine for $1.50. Doblin adds that felony disenfranchisement let the drug war suppress voters, citing notices sent by the Florida Secretary of State to about 80,000 people before the Bush–Gore election and the book The New Jim Crow Dr. Rick Doblin on MAPS and the War on Drugs (2016).
Discovered law versus made law
In the 2015 immigration episode, Nowrasteh frames the distinction in Enlightenment terms: laws need to be discovered, not made. The laws most people respect, such as murder and theft, are similar across all human civilization and time and are discovered; laws restricting drug use, firearm ownership or immigration are made out of whole cloth by legislators, bureaucrats and activists with no account of how humans actually view these things, which produces law enforcement disasters Immigration Nation: Nowrasteh Sets it Straight Again (2015). Zadek maps this onto the Latin pairing, assigning murder, rape, robbery and theft to the first category and calling the second an attempt to legislate morality and criminalize non-criminal behavior. Nowrasteh agrees and says most problems with illegality and most of the reason people no longer respect the law as much as they used to is that almost all such laws have no victim and are creations of the legislature rather than natural laws.
Across episodes: the same question, extended
The distinction is introduced in the 2009 insider trading episode, where Boudreaux supplies it and Zadek promises to develop it, and it is restated in the 2011 prison episode, the 2015 immigration episode and the 2016 drug-war episode. What changes is the target: in 2009 the vagueness of Rule 10b-5 is the problem; in 2011 the malum prohibitum category is used to explain who fills the prisons and why the tab falls on the public; in 2015 Nowrasteh supplies the discovered-versus-made framing; in 2016 Doblin supplies the political and racial history of prohibition. The definition itself does not change across the excerpts, and no guest disputes it.
What the sources do not cover
The excerpts do not state the origin or first use of the terms malum in se and malum prohibitum, nor do they cite a case holding on the distinction. They do not supply the text or citation of Rule 10b-5, the name of the 1937 marijuana tax statute, or the holding of any vagueness or disenfranchisement case. Several sections of the source episodes break off mid-sentence or mid-exchange, including the 2009 segment on synthetic insider trading and the 2011 segment on the aging prison population, and those threads are not carried further in the excerpts.