[quote]Varqanir wrote:
Boston:
Oh, absolutely there are degrees of malum in se. Murder and rape are not the only examples in my book, only the two unambiguous examples.
I would side with Headhunter in opining that crimes against children - running the gamut from neglect and abuse to molestation and prostitution - definitely qualify, because they meet the criteria I named above, and in many cases are tantamount to murder and rape.
Of the others that you identified, I say that no consensual sexual act makes the cut. Certain liaisons under certain circumstances might have bad consequences down the line, such as an act of adultery destroying a marriage, or an act of incest bringing shame on a family, but the actual acts themselves, in my estimation, do not constitute malum in se.
Similarly, the use of drugs does not make the cut. Surely, abuse of a drug can have a deleterious effect on the user’s body, be it caffeine, nicotine, cocaine or heroin. So can abuse of any edible substance, be it carbohydrate, fat, or protein. There is a fine line between use and abuse. In any case, drinking oneself into a coma probably qualifies as malum stolidum (wrong because it is stupid), a category that also covers use of a Bosu ball, curling in the squat rack, and voting for either political party.
Also, I don’t deny that the use of a drug can influence the user to commit acts that would by themselves be malum in se, but that could apply to practically anything: taking legal medication, reading subversive or pornographic literature (or the Bible or Qur’an, for that matter), listening to the Beatles’ White Album, eating Twinkies…
However, it does not follow that these acts themselves are malum in se, nor is drug use, in my opinion.[/quote]
I don’t know Varq,
It seems that the items that are malum in se incorporate the factual scenarios surrounding the acts into the definition of the acts. With murder, the act is killing - the factual circumstances make it murder. With rape, the act is sexual penetration - the circumstance that makes it MIS is lack of consent. In crim law, the distinction is usually between the act and the intent (or mindset) of the actor.
I have no problem with adding factual scenarios to the specific acts in order to make moral distinctions; in fact, I think it’s necessary, because it’s quite hard (as this thread shows) to independently assign moral value to an act in absence of an intent.
But I do think that the probability or likelihood of societal harm or harm to another person needs to be considered as part of the factual scenario surrounding an act when considering whether the act is MIS. With drugs, in my mind I distinguish “soft” drugs like pot, alcohol and tobacco, which need to be abused for hugely long periods and/or large overconsumption to really have deleterious effects, as MP, whereas using heroin, crystal meth or ecstasy are more dangerous, and thus I would classify their use as MIS.
Even with MIS though, I don’t think they all rise to the level of requiring prohibition. In fact, there are certain instances where things I would consider MP would be much more worthy of legislative prohibition than things I would consider MIS. Reckless driving is an example of an MP that I would find worse than the consensual 2-adult sex acts I labeled MIS.