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Course: Wireless Philosophy > Unit 8
Lesson 2: What should we criminalize: moral wrongs?What should we criminalize: moral wrongs?
In this wireless philosophy video, Barry Lam (Vassar College, Hi-Phi Nation podcast) examines the intuitive claim that criminal law should directly reflect our moral judgments of right and wrong.
View our punishment learning module and other videos in this series here: https://www.wi-phi.com/modules/punishment/. Created by Gaurav Vazirani.
Video transcript
(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)