Cafe Hayek - Latest Comments in Malum in se; malum prohibitum

Re: Malum in se; malum prohibitum

Otter425 — Wed, 05 Sep 2007 19:53:06 -0000

To comment on the original post - any violation of the law is, by its very nature, a criminal act, since violating the law in a society built upon the rule of law does harm to that society, especially if such an act goes uncontested.

Therefore, even in the case of an illegal (i.e. criminal) action that is not immoral (i.e. morum in se) in and of itself, it must necessarily be considered criminal. There is certainly room for differentiating degree - murder and jaywalking are not at all identical cases, but they are similar in that both, as violations of the law, ultimately reject the rule of law, and thus can be considered harmful to society. Both are criminal, and declaring them to be so does not represent a confusion of terms.

Re: Malum in se; malum prohibitum

Lucy — Sat, 28 Jul 2007 21:46:06 -0000

Said what I think, but said it better.

Re: Malum in se; malum prohibitum

Brandybuck — Fri, 25 May 2007 17:42:26 -0000

Isn't trespass "malum in se"? Besides the lack of documentation, it seems to me that the vast majority of "illegal" aliens commit the crime of trespass to get here.

Re: Malum in se; malum prohibitum

Walt from Mid-Michigan — Fri, 25 May 2007 06:45:07 -0000

How many of you commentors have public sector jobs? Just wondering.

Please pardon my trollish question.

Re: Malum in se; malum prohibitum

DS — Fri, 25 May 2007 03:44:03 -0000

"Under your loose guidance and interpretation of morality, most of Haiti, Cuba, the Dominican Republic, and generally all of Central (and a lot of South) America would just show up here."

What keeps them from doing that now?

I think the answer is that the illegal immigration laws we have now are unenforceable, there is no reason to believe that new immigration laws could be enforced either. This is an academic argument.

The US government can't control the flow of illegal drugs, inanimate objects that can't move, hide or think on their own. But they can stop people from crossing thousands of miles of borders on all sides? Be serious. The goverment just doesn't have the resources or the capabilities to do this. How are you going to round up 12 million people and kick them out of the county? Impose martial law?

The only practical solution is to stop giving free government services to non-citizens. But then what do you do about the legal citizens who consumer more government services than they pay in taxes? If the problem is one of people using more government services than they pay in taxes doesn't call into question the whole idea of a welfare system to begin with? Why does the fact that somebody was born on this side of the border entitle them to a free ride, but somebody born on the other side isn't?

Re: Malum in se; malum prohibitum

skh.pcola — Thu, 24 May 2007 22:43:55 -0000

Also, Jon, are you saying that if we shuck the entire welfare system, you would then advocate the protection of our borders? Or do you mean nobody would even want to illegally immigrate to here?

Re: Malum in se; malum prohibitum

skh.pcola — Thu, 24 May 2007 22:41:16 -0000

David: Superb straw man. Needs some work, though. Snarkiness doesn't become you.

Jon:

But isn't that a problem with the welfare system, not immigration.

You are only correct by technicality, not reality. Libertarianism is a fine view of what "can be" and "might be," but it isn't a possibility with the dependent and entitled groups of society. We will never, ever, end even 10% of the current welfare programs...politicians have too much political capital invested in them. Conversely, immigration has been a, and will become an even greater, growth industry. The more lax our immigration enforcement is, the more encouragement that we give the poor of the world to come here. I'm not totally devoid of empathy for the world's poor, but we can't support them all. If you (in the generic sense, not specifically) propose letting Mexicans or Guatemalans have carte blanche entry into our country--and access to our social benefits program, wouldn't it be hypocritical to limit it to just our hemisphere? Why don't we take the initiative and send "Liberty" ships to Africa and liberate Ugandans, Ethiopians, and others by simply bringing them here to share in the riches? I don't think that I am being too loose in interpreting you and Don's logic by fronting that proposal. If I'm wrong, tell me how I am.

I simply think the target of your attack...

I'm not on the offensive, although I can understand how some open-border advocates could take my opinion that way. Instead, I'm on the defensive, which isn't a good place to be. However, looking at the probable results of Europe's past immigration policy, I honestly don't think that I am wrong, morally or rationally, to assume a stance of cautious and limited legal immigration.

As I've read somewhere recently, why do we not enforce our immigration laws concerning nigh-unskilled Mexicans, but severely limit H1B visa applicant who are relatively highly-skilled and can provide multiples of GDP growth? Wouldn't we want coding Indians and engineering Chinese producing high-yield products here, instead of $8/hour lettuce pluckers? Not to mention that the discriminated against (using y'all's definition) H1B visa holders are subject to much more rigorous screening to enter the country.

Again, I hope I'm not being unduly contentious and obtuse. The idea that illegal entrants to the US have some sort of human right to benefit from our ordered society flummoxes me.

Re: Malum in se; malum prohibitum

David — Thu, 24 May 2007 21:57:56 -0000

I drove 80mph in a 70 mph zone tonight. I hope they let me stay in the country.

Re: Malum in se; malum prohibitum

Jon — Thu, 24 May 2007 11:48:32 -0000

@Pcola

Certainly you are correct that some will leech off the welfare system. But isn't that a problem with the welfare system, not immigration.

If there was no Federal Welfare system in place, this would all be a moot point.

I understand your argument, I simply think the target of your attack is misdirected and you want to treat a symptom rather than the disease.

Re: Malum in se; malum prohibitum

skh.pcola — Thu, 24 May 2007 10:42:21 -0000

Jon said:

...the market to do as it does then we would see a situation where we move toward an employment equilibrium.

This totally disregards the very real fact that not all immigrants who wash up on our shores (or sneak across the border) will seek gainful employment. Some percentage will, but others (many?) will just suck on the public teat, much as they do now.

There is already an entrenched immigrant welfare-rights system established here that allows illegals access to rights that taxpayers fund. La Raza, MALDEF, and another one that used to gleefully muck up the works when I lived in Texas (where, ironically, I was married to a 2d-generation-in-the-US Mexican), have formal organizations that hand-hold illegals in welfare benefits acquisition. This idea that illegals can't already get some taxpayer monies is not only wrong, it is dangerous in the context of this discussion.

Re: Malum in se; malum prohibitum

Thu, 24 May 2007 08:55:31 -0000

Do you think people who follow the rules should be let in before people who break them? What if every illegal deported is replaced by a legal immigrant?

There certainly may be people who are anti-foreigner, but what disgusts me is that the real people who are screwed are the ones who've waited YEARS to get a visa in their home country. How is it moral to punish those people?

Re: Malum in se; malum prohibitum

The Cynical Libertarian — Thu, 24 May 2007 07:27:43 -0000

In theory I agree: moving from one piece of land to another, when the owner does not object (the real owner, not the government or the people next door to the owner) is not malum in se.

However, you go on to say that murder would be punished, even if the government did not enforce the prohibition on murder, and that immigration laws would not be enforced. Yet, I have heard of groups in the southern USA who privately work to prevent illegal immigration (minutemen are they called?).

Re: Malum in se; malum prohibitum

Jon — Thu, 24 May 2007 06:34:38 -0000

@pcola:

But see that's the issue here isn't it? tha fact that if we allow the market to do as it does then we would see a situation where we move toward an employment equilibrium. Jobs are constantly being created and workersare needed to fill that position. What I don't understand is why the hell people get so worked up over this stuff?

What this comes down to is you saying:

"Well I'm an American (whatever THAT means) and you don't deserve to work here because X." Where X=anything you think. No that doesn't sound biased...

Re: Malum in se; malum prohibitum

skh.pcola — Wed, 23 May 2007 22:29:06 -0000

Don:

"Should we begrudge Mexican immigrants to the U.S. their wish to live in a freer society than the one in which they were born?"

Naw, hell. Let's just invite all of them up for the free-for-all. But seriously, if we had a formal policy of "Come one, come all," Mexico would quickly empty of all but the corrupt leeches who pillage the place. And when almost all economic activity had ceased, those neer-do-wells would move here, too.

Don, I've been reading you for a long, long time, but you and Tyler are polarizing me (even farther). Under your loose guidance and interpretation of morality, most of Haiti, Cuba, the Dominican Republic, and generally all of Central (and a lot of South) America would just show up here. That's stark reality. Shucks, by your logic, hijacking a freighter and filling it with thousands of your closest friends and relatives to get here would be dandy, as long as no humans were harmed in the process. Because, as your thinking goes, we should overlook trifling legalities in our effort to give a "leg up" to the teeming masses of the world's poor.

I really wish I could understand you and the rest of the posters who agree with you. This isn't solely a Mexican immigrant issue. Without strict (nominal?) enforcement of our laws, we will be on an also-ran on the list of world economies.

Re: Malum in se; malum prohibitum

Mesa EconoGuy — Wed, 23 May 2007 22:19:04 -0000

I believe malum in se/prohibitum is irrelevant here; nice idea.

Constitutional law (and economic freedom) usually requires people/”citizens”/folks in our general neighborhood to abide by various rules which may or may not reflect disparate world population views. Especially those imposed by totalitarian despots. People die when this happens.

It would be truly wonderful if we could simply wipe away the economic atrocities of the last century, most of which are directly responsible for the correlative human atrocities.

Unfortunately, most of us haven’t studied economic history. But Hugo will do fine on his own.

Sincerely,

Mrs. Chavez

Re: Malum in se; malum prohibitum

Ray G — Wed, 23 May 2007 17:23:12 -0000

Colin:

I agree totally except that I think you've taken a mistaken view of natural law.

Much of classical libertarianism lends itself to utilitarianism, as opposed to natural law theory, but in a realistic application, natural law in society is absolutely hinged on the rule of law whereas utilitarianism eventually drifts away from the rule of law because of its refusal of objective standards.

Thus your statements would be more in line with a practical application of natural law.

Re: Malum in se; malum prohibitum

Colin Keesee — Wed, 23 May 2007 17:06:32 -0000

I am surprised that either of this blog's writers would want to even talk about natural law. A society that organizes its self around natural law is destined for poverty. If we begin to think of borders as completely unnecessary abstractions, what is to stop the erosion of property rights, particularly intellectual property rights?

As a libertarian who share most of the sentiments of this blog, I have to stop and realize that, paradoxically, any large scale free market system depends on a series of invisible, intangible yet very real laws which are very much malum in se. If we revert to a system where by people base laws on their natural impulses, savings, investment and innovation would be wiped out due the fact that hording; lending, at interest and patents would all be considered vulgar and inappropriate. Our standard of living would stagnate, if not regress.

I understand why libertarians support the ability for willing employers to contract with willing employees, regardless of national boundaries. I see the analogy with free trade in goods and money. Libertarians should opt to make the case for free trade of labor on the same, sound and logical grounds, as trade in goods and money. It may be tempting to advocate breaking a law which can be considered frivolous and pedantic but that will legitimize those who see the laws, which under grid capitalism, as frivolous and pedantic.

The political left already has enough contempt for rule of law. Let us not make contempt for rule of law a consensus by dragging a large chunk of the political right, libertarians, into that way of thinking.

Re: Malum in se; malum prohibitum

Ray G — Wed, 23 May 2007 16:29:04 -0000

Oooh fun, a topic that pefectly mirrors the debate in natural law circles concerning objective morality.

I am surprised that Mr. Boudreaux would assume the role of the objective moralist, but I am pleased nonetheless.

More to the point however, his entire case is flawed because his basic premise is flawed (i.e. building a house on a cracked foundation).

Mr. Boudreaux is basically saying that most illegal immigrants are here for perfectly innocent purposes; something that may be true, but is not readily provable. That is problem one with his theory.

From there he presupposes that since they are here for totally innocent purposes, they have a moral right to be here, regardless of what the government says. (And it is a nice populist touch to liken them to Christians in Soviet Russia.)

So the illegal immigrants' moral right to live where they please is really an illusion made possible by the impossible to prove notion that a majority of them are here for innocent reasons.

Also, there is the matter of sovereignty. Non-citizens entering a country against the host country's laws are indeed criminal.

If homeless people continually break in to my house for "innocent" reasons i.e. not to specifically do me harm, they are still breaking into my house, and thus violating my private property.

A nation's sovereignty is vital to the maintenance of my private property rights, and to the general welfare of the citizens. Thus, that sovereignty cannot be left vulnerable to the subjective morality of Mr. Boudreaux's false premise of non-criminal illegal immigrants.

Re: Malum in se; malum prohibitum

Steve — Wed, 23 May 2007 15:58:06 -0000

Breaking and entering into a condominium is wrong in-and-of itself.

Re: Malum in se; malum prohibitum

nunya — Wed, 23 May 2007 15:27:53 -0000

OK - we're talking here about some ephemeral value-set topics which may be relevent to future policy making - but seem to me totally irrelevent to what's going on in "The Real World".....

Farmer's Branch, TX has voted (Overwhelmingly, I might add) to restrict illegals from renting apartments in their town. Of course, the slime at MALDEF immediately file suit to overturn the vote - which is typical of the pro-illegal corps.

There are a whole bunch of consequences from having such a huge contingent of illegals in our midst, many consequences which aren't as ephemeral as "malum prohibitum". How about: Personal Responsibility laws (Specifically in TX).

A huge number of Latinos here don't have auto insurance. Failure to have insurance is not in and of itself a moral failing - it's a legal one. However, if you're the unfortunate schlub on the wrong end of a rattletrap pickup with bad brakes - and the illegal doing the driving is uninsured - you get the full bill yourself. That's one consequence that becomes a moral issue arising from merely a state-mandated issue.

Do all Latinos drive uninsured? Absolutely not....but a plurality do, at least according to the State of Texas. Is it a moral issue? Not as long as said individual has the financial ability to make restitution for their damages....but (and here's the big but)...most don't. It's that nasty personal property issue that Libs are so heated up about. Of course, it's OK when an illegal destroys personal property (according to Lib Logic) because they're "picked upon" by the "gummint".

How about illegal crime rates? Of course, without the will, ability or competence to secure the border (which this nation has neither of) we get all sorts of fine, upstanding people "who are only here to work"...and rob, rape, kill, maim, et al.

I get awfully tired of these arguments playing apologista to illegals for their plight. Truthfully, aside from getting my lawn cut extremely cheaply, my car washed at discount rates and tables bussed in decent restaurants, I largely view illegals as disposable people.

When they work as hard at following the same laws the rest of us do then I'll give a damn about them. And with regard to groups like LULAC, MALDEF and La Raza...a quick complaint to the IRS regarding their 501(c)(3) violations may change a few tunes.....we'll see.

Re: Malum in se; malum prohibitum

Lee Kelly — Wed, 23 May 2007 13:27:59 -0000

Don,

First, I would like to compliment your post, which neatly elucidated the difference between legality and morality. I also agree with you, at least on an idealistic level. There are, however, a few complications.

The problem is that culture matters. The people who enter the US as immigrants, legal or otherwise, bring with them a culture. That culture will influence their political and economic behaviour. It may be unfortunate, but the culture an immigrant community brings with it will not always be compatible with a free-market economy.

For example, what do you think politicians on the left see when they observe a politicial protest calling for an amnesty? I reckon they see votes; votes by people from a culture which tends to subvert the free-market with regulation, who go to the US for the "free" education, subsidised medical care and "redistribution" of wealth.

Would you still feel comfortable with unregulated immigration, if those immigrants were bringing with them a culture set to undermine the free-market?

That's what sets human capital apart, the ability to influence the political process, an ability which all too often leads to poverty, corruption and crime where that human capital has a socialist vision of the world.

I don't think this case is regularly made, but it seems to me one of the strongest arguments in favour of tight border controls.

Re: Malum in se; malum prohibitum

Dayl — Wed, 23 May 2007 12:22:17 -0000

Walt from Mid-Michigan please do not compare the US to France. The French willingly and (in most cases) joyfully handed over their Jewish friends to the Nazis. So being against any kind of immigration comes naturally. If Tancredo is on to something why does he poll less than 1%?

Re: Malum in se; malum prohibitum

Bruce G Charlton — Wed, 23 May 2007 10:53:26 -0000

Thanks to Don Boudreaux for responding to my earlier comment with this posting. He makes a good point.

To take a step back, there are probably going to be restrictions on immigration, if the numbers of people wanting to immigrate into the US become high enough.

Currently hundreds of thousands of new people per year actually enter the US; I believe. But suppose the numbers who would come if borders were open was tens of millions per year - which seems quite possible, indeed plausible.

Even if you believe that the US could absorb 10 million new people a year without collapsing, if you keep adding zeros there comes a point at which the numbers are impossible to assimilate.

So - if there are going to be some kind of restrictions on US immigration (which is surely inevitable), then what should be done about the people who avoid the restrictions?

Should they be regarded as breaking the law? Or should people be made citizens because they managed to elude restrictions and enter the USA anyway?

My feeling is that restrictions are inevitable, and they should be enforced (like any other regulations).

Seems to me that the proper argument should be over the nature of the restrictions on immigration, not over whether restrictions are enforced.

Re: Malum in se; malum prohibitum

Methinks — Wed, 23 May 2007 10:07:54 -0000

Well, I'm one of those lottery winners that M. Hodak speaks of. My spouse is from an entirely different part of the world and just became a citizen in the last couple of months (hooray!). Foreswearing welfare is a legal precondition to the green card which you must receive years in advance of applying for citizenship. Foreswearing welfare is not, of course, a precondition of citizenship.

I would rather not slam the door on anybody but immigrating here legally was expensive and nerve-wracking for both of us. We want people to come to this country to work and have a better life but we want no responsibility for the entitlements government extends and for which we pay. The welfare state distorts the issue.

A poster on this thread asked if we (America) are now an exclusive club with membership privileges not wanting anyone crashing the party. We are indeed, because that's what socialism creates. We are especially against impoverished, low-skilled individuals who are more likely to end up living on our dime. This is understandable and yet another example of how the welfare state is an albatross around our necks. Sadly, even Milton Friedman said that a welfare state and unfettered immigration are incompatible.

The United States had unfettered immigration before the welfare state came into existence and it worked very well. I would like to see a return of unfettered immigration coupled with a massive reduction in the welfare state.

Re: Malum in se; malum prohibitum

Matt — Wed, 23 May 2007 10:05:57 -0000

Whoa, Sowell is "wanting"? "He simply does not think very deeply or consistently about law and jurisprudence."

In other news:

Boudreaux stock down 63% in mid-afternoon trading...

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