What should we criminalize: moral wrongs?

(music) Hi, I’m Barry Lam, associate professor of philosophy at Vassar College, and the producer of Hi-Phi Nation, a show about philosophy that turns stories into ideas. In this video, we’ll consider the idea that criminal law comes directly from morality. Thirty-one. That's the number of attackers Bruce Lee single-handedly beat up with nunchucks on-screen during his film career in the 70s. Lee introduced the American public to nunchucks, and by the time his final film was released, Americans were at the height of their panic over nunchucks, sai, and ninja throwing stars. Many states even criminalized the possession of all these weapons. Possessing nunchucks remains illegal today in some states. Lawmakers create hundreds of criminal laws every year in response to both perceived and real threats from dangerous new weapons, drugs, or technology. But what determines whether something should be criminalized? One theory says that criminal law should be as close a reflection of moral life as possible. Certain actions are widely condemned as morally wrong regardless of whether there's a legal system to outlaw them. Consider murder, assault, and kidnapping. Someone who commits one of these actions intends to cause serious injury. Not only do we have moral reason not to do them, we have moral reason to prevent others from doing them. Such actions are called “malum in Se” in Latin: they are wrong in themselves. The theory, then, is that such acts should be criminalized in any society, from small nomadic tribal societies that lack police, courts, or prisons, to advanced industrial societies with complex legal systems. Since everyone has a moral reason to prevent such wrongs, these acts should be outlawed. Does this theory imply that possession of nunchucks should be illegal? That depends. Is possessing nunchucks inherently wrong? Do we have a prelegal, moral reason to detain someone we see buying or playing with nunchucks? It doesn’t seem like it. Owning nunchucks isn’t anything like kidnapping or assault. Merely possessing nunchucks doesn’t hurt anyone, doesn’t damage anything, and doesn’t deprive anyone of anything. So it doesn’t seem to count as malum in Se. In fact, it seems like merely possessing anything, no matter how dangerous, isn’t a prelegal wrong. Whether it’s drugs, weapons, or technology with the potential to do harm to others, having something dangerous isn’t the same as intentionally causing injury with it. So if mere possession isn’t wrong in itself, what could legitimize its criminalization? Maybe nothing. Maybe a government should only criminalize actions that are malum in Se. This idea puts a high value on human freedom and autonomy -- our ability to choose for ourselves what to do. It views the primary role of the state as responsible for protecting that freedom and autonomy. Criminalizing something simply because it has the potential to cause injury undermines human autonomy. It treats a person who possesses something dangerous as though they are inevitably going to do something bad with it, denying them the opportunity to refrain from doing so. This view implies that possession of potentially harmful things, like nunchucks and drugs, cannot justly be criminalized. It also seems to imply that, no matter how dangerous something is, we can’t justly criminalizing the possession of it. Not even rocket launchers, plutonium, or state secrets. The mere fact that something is likely to be used in a malum in Se crime can’t justify making it a crime to possess. This reasoning raises questions about other crimes too. Consider conspiring with a friend to assault another friend. The assault itself is a malum in Se crime. But at what point should planning to do it also be a crime? If I thought about assaulting my friend, and wrote in my journal about how I’d do it, is that enough to be a crime? Surely not. Thinking and fantasizing should not be a crime. But what if two of us made all the plans, bought ourselves some nunchucks, and asked our friend to meet us at an abandoned warehouse? Shouldn’t that be a crime? At any given stage of the planning, a free and autonomous human being can change their mind, change their plan, and not go through with it, right up to the point where I’m swinging a nunchuck at my friend. If we never go through with the assault, then all that planning would end up being fantasy and desire, not a malum in Se act. A legal system that maximally respects autonomy would treat conspirators just like they treat possessors of nunchucks. Fully respecting freedom would allow people to fantasize and desire, plan and take steps to do bad things without treating them as though they’re going to eventually do it. Many people want and expect the state to criminalize conspiracies and substantive steps toward committing a crime. We shouldn’t need anyone to get hurt before the law can intervene. This shows that we want the state to do more than maximally preserve freedom and autonomy. Maybe we also want the state to reduce our risk of harm, or increase the overall social good, even if this means violating some of our freedoms -- even if this means criminalizing acts that are not malum in Se. Maybe, depending on what good comes from it, the possession of nunchucks should be a crime. What do you think? (music)