When the government makes laws, sometimes we assume the behavior they are outlawing is “evil.” But is something bad just because the government says it is? Or is there more to it than that?
Here’s a transcript of our conversation:
Connor: Hey, Brittany.
Brittany: Hi, Connor.
Connor: I want all of our listeners out there, all you kids, you parents, I want you to ask yourself a question that we’re gonna answer in this episode. Is a behavior bad because the government says it is, or is it bad because it’s inherently immoral or evil, right? To, is something bad? Cause the government says so or something bad, just because it is. So, let’s use an example. Let’s think of stealing. Why is stealing bad? Well, it’s against the law to steal, I guess, unless you’re the government. And in some respects, it’s legal to steal, but topic for another day. So it’s against the law for you and me to steal, but is that the reason why, or the only reason why stealing is wrong? Or is stealing naturally bad or inherently bad, meaning it’s just bad on its own, because of other reasons? I think in this case, stealing is bad because we have a natural right to property. There was a really smart man who influenced a lot of the founding fathers named John Locke, and he wrote, a book called Two Treatises.
Brittany: Second Treatise.
Connor: Second Treatise. Thank you. Yeah. Government. And so in there, he talks about life, liberty, and property, which you may recognize cause Jefferson later worked that into life, liberty and the pursuit of happiness. But what John Locke talks about is he uses this example of, you know, living kind of, in nature as state of nature all by yourself. And so then he uses that kind of example where you’re isolated, think of like a deserted island, right? Similar idea. And so the issue is like, do you have the right to life? Well, yes. Like if someone tries to attack me or whatever, I have every right to defend myself. Do you have the right to liberty? Can other people boss you around? Well, no, it’s, I’m alone on the island. Or even if there’s other people on the island, like, you know, they don’t have any natural right to boss me around or control me. So we all have the natural right to liberty, but then it’s property as well. So he talks about like, if you were to, you know, plant trees and start growing and then, you know, producing the fruit and doing things and turning, using your energy to turn a property into goods, to kind of make property, build a house, whatever it is, right? That is your natural right to property. You have exerted your energy, you’re spent your time to create this thing. Now, not all of us build our own homes, just to use the home example. So what do we do? We go work at a different job creating value in other ways for other people, and we get money, and then we use that money to, you know, buy a house, pay for the, you know, wood and the people to build it for us. Well, that’s not really different in a way because money is just stored energy. And what I mean by that is if I went and built a house by myself, I’m using my energy to build a house. But if I go use my energy in other ways in a different job, let’s say I, you know, dig trenches or I, you know, build websites for people like I used to, I’m using my energy in different ways and I’m getting money back. And so that money in a way is like stored energy. That energy that I spent doing my job, whatever it is, pulling weeds, you know, driving people around on Uber, whatever that energy gets stored up in that money. And so then I can use that money and I can go pay the guy to build my house. So whether I build it myself or I use money, it’s still that house. I still have the natural right to property. So that’s why I think stealing is naturally or inherently wrong because I have a property, right, the right to property, and someone who steals from me is violating it just because the government says, you know, stealing is wrong. I don’t think that is what makes stealing wrong. I think it’s because my right is being violated. What do you think, Brittany?
Brittany: I think you’re absolutely right, because I think one thing, I always like to think about is what would happen if there was no government? Would this still be bad, right? Like, would we know what to do if there was no government? And I think in this case, we absolutely would. You wouldn’t take something that is someone else’s. And I think most people know that. I think I’ve used this example in the past that if you give something to a baby, you know, the baby’s grip is really strong. Babies have this grip that I don’t even understand, but like a baby knows what’s theirs and they don’t wanna give it up, right? Like they, they recognize their own property. so I just think that’s really interesting. But, you know, let’s think about, you know, murder for example. I don’t think any of us need to be told that murder’s wrong. It actually, every time somebody’s like, well, what would we do with that government? It would be chaos. I’m like, I think everyone knows that. Like, you shouldn’t murder someone. I don’t think that if the government were to disappear tomorrow, it wouldn’t be like that silly movie The Purge where everyone’s like, all right, no government, let’s go out killing each other. Cause it’s in our own bent best interest not to hurt other people because then they’re gonna hurt us. So that’s another thing, right? So, killing isn’t wrong because there’s a law about it. Killing is wrong because it violates what John Locked, as you were saying, you know, life, liberty, and property. It’s, life and it’s your liberty. ’cause it’s taking both those away. So, no, like, honestly, if the government’s gonna exist, and Locke talked about this too, because he really believed in this limited, you know, constitutional form of government, that government should actually only exist to protect those what are called natural rights. Natural meaning that they’re given to you when you are born. You don’t have to do anything to get them. So the only reason the government should even be allowed to make laws is to protect life, liberty, and property. But this does not always happen. In fact, I would say that it happens like almost never. And property rights are actually not that protected anymore, right? I work for law and we had a property rights case go to the Supreme Court, but property rights are one of the least. like you don’t see a lot of those cases go to the Supreme Court because people just don’t care about property rights anymore. It’s very sad. I mean, people do, but they get abused so much. So, but we have a bunch of laws that are passed, not because again, they outlaw evil or moral behavior, but just because the government wants to control what we do, and that’s a scary thing. I think that con should concern everybody.
Connor: So, I like this idea about how weak protections are for property rights. I have some thoughts, Brittany. So let’s make sure we do an episode on that later. I think that’d be good to kind of dig into how weak property rights are on this idea about the connection between law and morality. You know, stealing or murder. Are these things wrong because the government says so or are they wrong because they’re just wrong? There’s two terms that we should go over, to talk about this. And they’re both Latin terms. And so, one is called malum ensay and the other is called Malum prohibitum. And so malum or mal, if you know Spanish mal, is bad, something that’s bad, and prohibitum you might recognize sounds like prohibited. So, malum prohibitum is a law something that is bad because it’s prohibited. So ignore it, I just said law, I didn’t mean to maim. Prohibitive is something that’s bad because it’s prohibited. Malum ensay means something that’s bad in and of itself ensay in and of itself. So I would say, Brittany, based on our discussion, stealing, and murder, these are malum ensay crimes or offenses because they’re inherently bad. They’re bad in and of themself. We have natural rights. We can observe these rights, we can use our reason and observation, and understanding to clearly see that it’s wrong to steal from someone, that it’s wrong to kill someone that violates their rights. These are malum ensay offenses. Well, let me throw it to you. For example, Brittany, what is an example of a Malum prohibitum offense?
Brittany: So Malum prohibitum is when something is just bad because the government says it is, there is a law, but I can’t remember which state this is. So there’s a lot of silly laws. In fact, you and I did an episode on this that, they never took off the books from like olden days. Oh yeah, I can’t remember what state it is, but there’s one, it might be Utah. There’s one where it’s like you can’t fish sitting on the back of a horse. I would love to know, there’s a backstory there. You know, there’s a backstory there where someone did something stupid. But why is that illegal? You know, is that inherently morally wrong? Is sitting on the back of a horse and fishing in and of itself wrong? Absolutely not, right? It’s not. So why is there a law for it? So that would be an example of a law that’s just there because the government, it’s bad because the government said it’s bad.
Connor: We sometimes call these victimless crimes, right? I think that’s a term that we use in our modern era. that if there’s a crime where there’s a victim, meaning you’ve hurt someone or even killed them, right? There’s a clear victim that typically is a malum ensay, a crime because you have harmed someone else. You’ve stolen from them. Beat ’em up, you know, whatever. So if there’s a victim, typically it’s, malum ensay, well, this idea of victimless crimes, typically, again, not I think perfectly in every case, but typically those are malum prohibitum crimes. I think another example might be, speeding on the road. you know, running a stop sign when there’s no one in the area that can possibly be, you know, threatened or in any way negatively affected, jaywalking. You know, I think is funny.
Brittany: That was the example I was gonna use. And I was like.
Connor: Stole your thunder. Yes.
Brittany: Well, I didn’t know people still got prosecuted for that, but I had a friend just get prosecuted for it the other day, so.
Connor: Yeah. no, that’s definitely a real thing. And I’ll share an example. I actually posted, just this morning on my Facebook page about this. So I’ve shared before, I think a lot of our listeners know that I’m a beekeeper and, in Utah, which is kinda silly ’cause it’s the beehive state is the motto or nickname or whatever. in Utah, there’s a law that says that I have to register with the state to be a beekeeper. and then I have to tell them where my hives are. And so basically I have to, I don’t have to get permission, it’s not a license or anything like that, but I am required to register and be on a government list as a beekeeper. So I don’t do that. I am what I call an outlaw beekeeper, which is kind of fun cause when I give people honey in the fall when I process honey, I give out a lot of gifts and things like that. And I tell people it’s contraband honey. So it makes it taste a little sweeter. You know, it’s really tasting honey. So I’m an outlaw beekeeper. Here is a law that doesn’t victimize everyone. There’s no harm. The government has just decreed that you know, all beekeepers have to register with the state. And I’ve chosen not to. But, I would say that that is a malum prohibitum. They’re saying it is bad to be a beekeeper without registering, or it is wrong or it’s illegal, right? Unless you register well, that is not something inherently bad. Cause bees are natural. They’ll, you know, go live in a dead, you know, tree log or up in someone’s attic. They just do what they do. And I can go out into a forest or whatever and find bees and help manage them and, you know, make sure they’re doing all right. Like, that’s all-natural. I don’t need anyone’s permission. I don’t need to like shout out into the wind. Hey everyone, I’m a beekeeper now, just so you all know. And so that’s just malum prohibitum. They’re saying it’s bad ’cause we’ve prohibited it unless you register. So there’s a lot of these examples. let me maybe bring up a challenging one for our audience, and we’ll wanna be delicate with this, Brittany, but maybe in our remaining time of discussion, let me challenge you. drug laws. We’ve talked about prohibition before. And the government prohibits me.
Brittany: And Emma and I just talked about the war on drugs too.
Connor: Okay, and the war on drugs. So it’s been a recent topic of conversation. Would you say that drug laws are malum ensay or malum prohibitum?
Brittany: Oh, they’re 100%. , I’m getting the terms. The one prohibitum. The ones where the government says it’s wrong and it even has the word prohibition.
Connor: It’s okay. Kids, if you’re struggling with these terms, so is Brittany.
Brittany: I was like, I’m gonna say it in Latin, and sounds so cool. I didn’t.
Connor: Okay, so why not? Malvin said, let me give the counterargument. drugs, harm people. They, harm themselves. These are, you know, laws for the good of society because it’s bad for people to use drugs and ruin their lives. It’s inherently bad to, you know, damage your body and you know, intoxicate yourself, impair yourself. And so isn’t that malum ensay, in other words, you know, drugs are just inherently bad to do. So wouldn’t that be malum ensay rather than something that’s bad? Just ’cause the government says it’s bad?
Brittany: Nope. And I think, I can’t remember if it was you and Emma or you and I, or me and Emma, but we had one about vices. I think it was you and that vices are not crimes slice Sanders spooner. And no, because there’s no victim. That’s what I would say because you’re not hurting. You might be hurting yourself. I think that argument could be made, but you’re not directly harming anyone else, and you’re allowed to do whatever you want to yourself, even if it’s not good for you. So the main thing is there’s no one else being hurt.
Connor: And that’s an important point because, you know, I can harm myself by being a couch potato, right? I can harm myself by drinking like, you know, a hundred-ounce sodas every day, right? Or smoking, or drinking alcohol or viewing pornography or, you know, doing all kinds of other, you know, things. There’s all kinds of legal ways I can drink, you know, bath like toilet cleaner, like don’t do these kids. Horrible idea.
Brittany: I hope you don’t.
Connor: No, right? But like anyone can harm themselves and because your body is your own now clearly Brittany, and I think you would agree, if I use drugs or anything, prescription drugs, you know, drink anything, like if I do anything and then like get in a car or I’m, you know, trying to sell drugs to kids, like if I’m doing things that go and actually affect other people, that’s different. But if you’re just sitting in your basement and you’re, you know, eating a bowl of cereal or doing a drug or whatever, like we can say maybe religiously or morally or whatever, that those things are bad for you. But that doesn’t mean that they are, rising to the level of crimes. Just like you said from the previous episode, that vices aren’t crimes. The government should not care whether people do bad things to themselves. Ccause we all do bad things to ourselves, right? I mean.
Brittany: Eating sugar, right? Eating too much sugar is a bad thing for yourself.
Connor: Totally, people eat way too much sugar or not getting enough sleep, or not getting exercise, right? Like all these things. So you have the right to decide what you’re gonna do to your body. The government shouldn’t be involved in that decision at all, even if you do really bad things to your body, right? It’s your property, your decision. But the moment that you are gonna go affect someone else’s property, right? That’s when it’s like, okay, wait, maybe there is a victim now. So that I think is the key distinction, to talk about, right? But there is a difference between law and morality just cause to get like, just cause the government says something is legal, doesn’t mean it’s moral. Cause for a while they said slavery was legal, right? That doesn’t make slavery moral just cause the law says so. Right? And then on the other hand they say, well, it’s illegal to free slaves, but that’s moral to free people from slavery. That’s a good thing. But the law prohibited it. So the law is not always the same thing as morality. Sometimes the law is kind of in connection with it. Like it’s wrong to murder. That’s malum ensay bad in and of itself. And then the law also says, you know, we’re gonna punish you if you murder. So fine, great. The law and morality are synced up there, but they aren’t always.
Brittany: And what’s almost argue they aren’t usually.
Connor: Yeah, perhaps so, right? Especially when it comes to malum prohibitum where the government just comes up with all these, you know, other things and oh, we’re gonna punish you if you do all these other things. And that’s how the government grows kids. So that’s why laws should be tied to malum ensay, only when there’s victims, only when the government needs to kind of step in as referee and say, oh, wait a minute, we gotta protect this other person’s rights. But if the government’s trying to just manage our behavior and get us to act in certain ways, even if there’s not victims that’s malum prohibitum, that’s typically a victimless crime and that means big government, you know, nannying bossing us around and we don’t want any of that. Guys, thanks for listening. Hope you are subscribing and listening and learning. We love having you guys along the way, Brittany. Thanks as always. Appreciate it. And until next time, we’ll talk to you later.
Brittany: Talk to you later.