Is The Purpose of Criminal Law Moral Control? (Guest Post)

new-bitmap-image_2I came across an interesting topic the other day regarding laws and the purpose of them. In all honesty, I scoffed at the question at first. I mean, what kind of question is that? The purpose of laws is to keep society orderly. Without laws, there would be no civilization to speak of. Laws are the fabric that holds it all together. ​

But, that’s not the interesting part; the more thought-provoking question is whether or not legislation should come from moral standings. In other words, are our laws here to regulate morality? And if so, is it that morally acceptable?

Answering this question was nigh an impossibility for me. It felt more like a chicken and the egg scenario – though, we all know the chicken had to come first – than an answerable question. But the philosopher in me took control, and before I knew it, I had gone down the rabbit hole. What is morality? Who gets to determine morality? Do the benefits outweigh the costs? You get the picture.

Different Types of Criminal Law

Criminal law is mostly broken down into two fundamental categories; Mala In Se (wrong in itself) and Mala Prohibita (wrong because they are prohibited).

Mala In Se

This is a Latin word meaning “wrong in itself,” these are the things that everybody recognizes as heinous. Things like rape, murder, and theft fall under the Mala In Se. There isn’t much to discuss here; these are things that are clearly wrong and harm the people around you in a very real way. The fun begins when you start discussing the next category of criminal law.

Mala Prohibita

Latin for “wrong because it is prohibited.” This encompasses laws that prohibit gambling, prostitution, and drug use – of course, there are others, but these are the ones that are argued most often.

Mala Prohibita laws seem to give direct evidence to the statement that laws are made for moral control. But isn’t that in itself immoral? I argue yes.

Why Laws are Made in the First Place

Laws are made to protect people and their property, and if that’s your stated goal, then it becomes necessary to legislate morality.

For example; there’s nothing inherently immoral about drinking alcohol and then driving, but the results of doing so could be catastrophic to those around you. So how do we incentivize people not to drive drunk? By making it a punishable offense to do so, effectively legislating our morality.

So is the purpose of criminal law moral control? I say yes.

Should We Try to Control Morality

I guess the real question is how much should we be able to control morality. Clearly, there are times when it’s a good idea to make laws for the intent of controlling morality. But only if the benefits justify the cost of implementing those laws. The sad truth (my opinion of course) is that our government tends to legislate morality too often. For instance; putting gambling laws in place to keep citizens from the sin of gambling.

Of course, your answer to that question largely depends on how much power you think the government should have. A libertarian will say the government has no place to try and control the population’s morals, and it seems they have a solid argument.

Governing morality is a dicey concept. First of all, who says that one person’s morals are intrinsically better than others? More importantly, often, legislating morality has grave consequences.

Look back at alcohol prohibition and how it caused more harm than good. This era saw the rise of organized crime and ended up putting a lot of people in jail that had no business being there.

Unfortunately, there are still some laws in effect today that adversely affect the population, in some cases putting people in jail for years even though that supposed crime has zero victims.

Thankfully, there are people out there keeping our courts honest and helping to keep people out of jail for things that probably shouldn’t be illegal anyways.

About the Author

author_origLiz S. Coyle is the Director of Client Services for JacksonWhite Attorneys at Law. She also serves as a paralegal for the Family Law Department. She is responsible for internal and external communications for the firm.

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