Malum Prohibitum … read it

Malum Prohibitum:

The Evil Legal Language of Progressivism

by William L. Anderson

Recently by William L. Anderson: Aaron Swartz and the Feds: How Progressivism Becomes Tyranny

The outrage over the prosecutor-inducted suicide of Aaron Swartz continues, and well it should. Glenn Greenwald’s recent column barely contains the rage of a principled civil libertarian who despite his deep Progressive-Left outlook still can understand government-induced evil when its ugly face is revealed.

Indeed, Progressives from Massachusetts to California are outraged at what they correctly see as a relatively minor legal transgression by an honorable activist turned into a “crime” for which punishment would be imposed that would be greater than that experienced by convicted murderers and rapists. Yet – and I despair of my own inability to make this point so that Progressives can comprehend – what these people seem incapable of understanding is that their own legal/political theology is the problem.

Yes, a lot of outrage properly is directed at U.S. Attorney for Massachusetts, Carmen Ortiz, a Barack Obama-appointed political animal who apparently had her eyes set upon the governorship of that state. Both she and her assistant, Stephen Heymann, who also has a reputation for being politically-ambitious, are now targeted in petitions to the White House to fire both of them, and because the petitions have more than 25,000 signatures apiece, the Obama administration now is legally-obligated to respond to them. (It will be interesting to see if Obama and his equally-culpable U.S. Attorney General Eric Holder, whose own hands are washed in blood of innocent people, will throw Ortiz and Heymann overboard or if they will try to ride out what could be a difficult political storm.)

In California, Democratic Congresswoman Zoe Lofgren has introduced “Aaron’s Law” in hopes “to prevent a repeat of the abuses of power he experienced.” While this might sound dramatic, it truly is futile, just as former U.S. Senator Jim Webb’s attempt to deal with the ugly stain of U.S. incarceration policies and especially those involving the eternal Drug War.

Why, does one ask, are all of these “reform” efforts exercises in futility? Greenwald, after all, is an eloquent and impassioned voice for justice, perhaps the best on the modern scene. Even conservatives and liberals, Republicans and Democrats, are able to agree somewhat with one another that things have gone too far, that too many people are incarcerated, there are too many laws, and too many “crimes.”

Yet, I doubt that one Progressive, Right or Left, that one outraged lawyer in Massachusetts, the Great Greenwald, or even any member of Aaron Swartz’s grieving family can recognize the real problem: Malum Prohibitum. Yes, Malum Prohibitum is the very core, the very essence of Progressive law, and it is that legal doctrine that has turned U.S. law into the horror story it has become, but because most Americans have come to believe that Malum Prohibitum is the very essence of justice itself, we are doomed well into the future to live its awful results.

Let me give an example that I believe will explain my position. Many of the same people who are outraged that Ortiz and Heymann could drive a brilliant young man to his death by converting what essentially was a small violation based upon Malum Prohibitum into a series of “crimes” punishable by up to half a century in prison no doubt fully support that Gov. Andrew Cuomo was able to do in the State of New York this past week.

To the lavish praise of the ultra-Progressive New York Times, Cuomo got the state legislature to pass sweeping gun laws that turned legal possessions into illegal contraband. In the future – with the full support of Progressives everywhere – SWAT teams will violently invade the homes of many gun owners to confiscate weapons that pose no danger to anyone and whose law-abiding owners either will be killed or arrested and become treated as though they were dangerous murderers. We know these things will happen, and I would even surmise that Greenwald and nearly every mourner at Aaron Swartz’s funeral would agree that New York authorities would be legally and morally correct.

When a man who has owned a gun – say a World War II vintage M-1 Garand – for many years but fails to register it with the authorities in New York, even if that gun is locked in a safe and is unloaded and has not been fired in a generation, the police can and will swoop into his house armed to the teeth. If the man or any member of his family is gunned down in the SWAT melee, at very best Progressives will see it as unfortunate “collateral damage” in the enforcement of a “good law.” Yet, that man and his family will have posed no greater threat to society than did Aaron Swartz and an army of his “hacker” friends, but the response of the Progressive “community” will be poles apart.

I say this not to condemn Greenwald – certainly one of the greatest living champions of human rights – or anyone associated with Aaron Swartz, nor do I accuse them of being hypocrites. What we have to understand is that the very essence of Progressivism is the belief that the State and its agents must decide what is right and what is wrong, and that Malum Prohibitum carry the same moral and legal weight as the ancient legal doctrine of Malum in Se. All Progressives – Right or Left – believe these things and cannot imagine a world without such doctrines.

The idea of Malum in Se is that some things are unlawful in and of themselves, and that everyone recognizes the wrongness in the acts. Murders, theft, assault, robbery, rape, lying in a legal proceeding, and other such actions have been illegal throughout history in almost every culture. That people have managed to avoid capture and punishment or that people given State privilege are able to do these things and not be sanctioned does not make them “legal” in the minds of most people, but serves as a cause of outrage.

Unfortunately, Malum Prohibitum has replaced Malum in Se as the guiding legal force in American criminal law. The vast majority of the two-million-plus people in American prisons, both state and federal, and the many millions more in the criminal justice system, are there because they allegedly violated “laws” based upon Malum Prohibitum, and we have to understand that the laws and punishments that flow from that doctrine are severe and arbitrary and have turned this country’s “justice” system into a maw of injustice.

Even though at least one “mainstream” U.S. law professor has said that the draconian punishments that Ortiz and Heymann were seeking involved a “fair reading of the law,” people naturally are outraged that an original act that in itself was more symbolic that really did not impose harm on others could be legally interpreted as the legal (and moral) equivalent of terrorism with some of the harshest punishments this side of execution being dangled before Swartz. I will go even further: This entire legal episode was based totally upon Malum Prohibitum and that Swartz did not engage in real harm, but simply broke a set of rules that arbitrarily were imposed.

The legal essence of the True American Revolution of Progressivism was the imposition of rules that essentially criminalized actions that before the Progressive Era were legal. Certainly the “crown jewel” of the Progressive Movement of the early 20th Century was alcohol prohibition, but despite the utter failure of Prohibition, American politicians – with full support from the voters who supposedly are the “essence” of democracy – have expanded the doctrines of Prohibition not only to include drugs, but firearms, speech, and some forms of pornography.

Criminal law in the USA, both state and federal, has seen explosive growth in recent decades and almost all of it is based upon doctrines of Malum Prohibitum. Government authorities determine what is “bad,” and then they outlaw it with the idea that a submissive populace eagerly will obey the next set of rules politicians and bureaucrats send down the pike. As the Progressive mainstream media fuels the next “crisis,” government agents swoop in and “solve” the problem by imposing a new set of rules that the media and their academic allies then declare to be Holy Writ.

This process has gone on almost unabated for more than a century and most Americans could not imagine their lives without being surrounded by arbitrary rules imposed by their supposed “democracy.” For that matter, I would say that the near-whole of federal criminal law is based upon Malum Prohibitum, and while state prisons hold many more inmates than do federal prisons, the Drug War that has fueled most of the increase of prisoners primarily has been a federal initiative, and even when states revolt, as many have done with regards to use of marijuana, federal authorities still demand prosecution of people who use the drug, even those who have it prescribed by doctors.

Americans who may be outraged at how federal authorities piled onto Aaron Swartz are perfectly happy with how federal and state governments tell them what they can and cannot eat, what they can and cannot wear, the kind of milk they may drink, how large their soft drink containers might be, whether or not they can own firearms for their own protection, and even what they can believe about the origins of the universe. They are perfectly content that police officers can raid their homes at will, shoot their family pets, pull them over on highways for arbitrary infractions of the rules, and physically assault them and even kill them without having to worry about being punished no matter how outrageous the police conduct. (I cannot count how many times I have been told, “If you are not doing anything wrong, you have nothing to worry about.” Oh, to wish that really were true.)

As I wrote before, the entire federal “criminal” case against Aaron Swartz was constructed upon the doctrines of Malum Prohibitum. Every second that he would have had to spend in prison came about from penalties prescribed by Congress and the government bureaucracies and every second of those penalties was an arbitrary number. Every “crime” he allegedly committed came from rules prohibiting actions that not long ago were legal.

Furthermore, the core of the “criminal” case was fashioned from “wire fraud” and “computer fraud” statutes that made the action “illegal” because he used the Internet and a laptop computer. If this is not arbitrary, then the word does not exist. The original act itself – downloading papers from the JSTOR site – was not clearly illegal, yet Ortiz, Heymann, and their staffs were able to create a mountain of criminal charges that essentially would have resulted in a life sentence for this young man, and ultimately drove him to take his own life.

This sorry legal and moral episode was not made possible by “overzealousness” and I would not dignify the word “zealous” to describe either Ortiz or Heymann. The problem was not that two members of the law enforcement community had such “zeal” for right and wrong that they got carried away and pushed the case beyond some legal or even moral boundaries.

The problem was that two politically-ambitious people were able to use the legal doctrines of Malum Prohibitum to pursue an agenda that would have forced taxpayers to fund what essentially was free political publicity for both of them, publicity that they believed would have resulted in personal gains for themselves. Rudy Giuliani did this successfully by engaging in reckless law-breaking in his pursuit of Michael Milken. James Comey did the same when he went after Martha Stewart, and Joel Klein benefitted handsomely from his legal actions against Microsoft.

Ortiz and Heymann were following the same prescription for “success” laid down by ambitious and immoral people like Giuliani, Comey, Klein, and others. They had no reason to believe that destroying the life of Aaron Swartz would result in nothing but personal rewards that would make them wealthy and powerful. After all, other federal agents had successfully trod the same path and it worked for them.

By slipping a belt around his neck and hanging until his life ebbed away, Aaron Swartz believed he only was ending his own tortured life. He had no idea that his action would (one would hope) destroy the legal and political careers of two evil and ambitious people who should be pursued into oblivion and who deserve a much worse fate than what will befall a publicly-disgraced man like Lance Armstrong.

Unfortunately, there is a much larger story here that needs to be told, and not enough people are going to recognize what that story is, much less tell it to the world. Aaron Swartz was hounded to his death ultimately by the horrid and evil legal doctrines of Malum Prohibitum, arbitrary doctrines that have become the very basis for the laws that rule our lives. These doctrines are what provide support for Progressivism, and until Americans recognize that fact and until Americans are willing to do away with the web of rules and more rules that oppress them, they will be forced to live the nightmare time and again.

This is not simply a problem caused by those Progressives on the Left, as utterly hypocritical as they might be. The law-and-order Progressives of the Right are just as bad (and maybe worse) because they are True Believers that Malum Prohibitum is the essence of the Good Society and that rules are there for a good reason. Perhaps it is that mentality that led the evangelical and politically-conservative World Magazine to lavish praise upon a nihilistic and immoral movie like Zero Dark Thirty while mentioning the death of Aaron Swartz only in passing, with the passage not even beginning to address the vast and arbitrary powers of the prosecutors and making it sound as though only a few activists believed the prosecutors were wrong.

The Aaron Swartz case was not a legal outlier any more than Michael Nifong was a “rogue” prosecutor. Aaron Swartz faced what thousands upon thousands of Americans face every day from a system of laws that empowers the State and crushes liberty and replaces the light of a free society with the darkness of tyranny. Most of the victims of American “justice” choose to experience the horror and remain alive, even though in reality, unbridled State power has sucked the life out of them just as it drained the life out of Aaron Swartz.

January 21, 2013

William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute. He also is a consultant with American Economic Services. Visit his blog.

Copyright © 2013 by Permission to reprint in whole or in part is gladly granted, provided full credit is given.


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10 years ago

First, I am not a libertarian, I don’t want to live in such a socially permissive society. For instance, I don’t want my daughter growing up to think meth is acceptable because it’s legal. Before you say, “raise your child the way you believe”, remember that tv, movies, music and just about all mass culture pushes the envelope of what’s acceptable even now and without locking my daughter in the basement there’s no way to shelter her through her formative years when she is learning what’s normal. She needs to be exposed to the good and bad, but gradually as she matures.

It seems to me that malum prohibitum is to allow people to create a society or community that they want to live in without having to run “undesirables” out of town with the threat of mob violence. Obviously, it doesn’t work at the federal level, but few laws do. Working properly, malum prohibitum would reflect the larger societies values and people who don’t agree could move elsewhere to be with people like them. Think the III Citadel.

I have been looking into libertarianism, lately, because it seems everybody has a different definition. The thing I keep coming back to is that our set up here in the US is very good, over all, but control has shifted to “special interest groups” pushing their agenda onto everybody from the top instead allowing people the right to create communities they want to live in. I believe a return to State Sovereignty would go a long way to solving this.

Backwoods Engineer
10 years ago

Excellent. I will be using this piece as part of my homeschool daughter’s Government class.

10 years ago


Your ‘beloved’ malum prohibitum infringes upon my unalienable Rights to life, liberty and property. I do not relinquish these Rights to a numeric majority via democratic process.

“Rightful liberty is unobstructed action according to our will
within limits drawn around us by the equal rights of others.”
~ Thomas Jefferson

Hopefully you will consider the implication of your statements.

10 years ago
Reply to  Hans

What I’m saying does not infringe on your rights to life or property. It does put limits on behavior.

“Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” -John Adams

Whose morals and whose religion was he referring to? Why does your right to live as you please trump my right to live in a society that reflects my beliefs (ie as I please)? I am saying that a people should be free to create the society they want to live in. However, I do not think that the federal government is the proper venue. I think it should be handled as locally as possible.

10 years ago

The 25,000 signature limit is now 100,000. The time for petitions is over.

10 years ago


At least you have the honesty to admit you intend to infringe upon my LIBERTY when you state “It does put limits on behavior”.

Where my behavior does no physical or economic injury to you, back away … IT IS NONE OF YOUR AFFAIR. The ‘moral people’ of the 18th century established our government with a charter of “negative” Rights.

Reflect upon Mr. Jefferson: “But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.”

Learn from the wise founders and leave your neighbors free of Malum Prohibitum to live their lives in Rightful Liberty.

10 years ago
Reply to  Hans

By behaviour, I mean acts. For instance, the public nudity in San Francisco that was recently banned by the city. I wouldn’t live there because I don’t want my 3yo daughter exposed to some old man’s junk.
Or bestiality, which is apparently legal in 37 States. I question the character and sanity of anybody engaged in “zoophilia”. Even if its behind closed doors, I don’t want you anywhere near my family.
I don’t want your libertine philosophy pushed on me and mine.

10 years ago

I see both points; I despise any infringement upon my freedom and liberty, but recognize that in order to live in a semblance of civilized society, there must be some limit on behavior.Life is, after all, about balance. No one, least of all me,wants to relinquish control of my life to any presumed “authority”, but RogerUnited hits it on the head when he said that Malum Prohibitum has failed at the federal level, and any application of it should be as” local” as possible. So many issues could be resolved with a return to state sovereignty, but Leviathan wants not to relinquish its power…..

10 years ago
Reply to  phillip

At its root, Malum Prohibitum is the result of the legislative version of the old adage about having a hammer: When the only tool at your disposal is a hammer, all your problems start to look like nails.

It’s also an issue of discretion and scale;

The problem with Malum Prohibitum statutes is that they are precisely the wrong way to go about doing things. Put simply, it’s trying to deal with social problems by declaring that the citizenry are no better than murders and thieves.

Certainly it’s appropriate for the local constabulary to frown heavily upon public intoxication, so long as they use discretion. It’s one thing to take the town drunk to the jail cell in the local police station to sleep it off after finding him passed out in the park; It’s a different matter entirely to run him up the flagpole to make an example, or to go and raid the local bar because you don’t like alcohol.

This is the case because the police are charged with KEEPING THE PEACE. A drunk passed out in the village square, or worse yet drunkenly belting out the songs of his youth in the middle of the night, constitutes a breach of the peace.

Still, if he’s not causing any sort of real harm to anyone then there is no reason for there to be any sort of criminal prosecution pursued; At worst, a fine to cover the costs associated with keeping him in the drunk tank overnight, but no real judicial action.

We don’t need Malum Prohibitum statutes to do this; we just need to stop the abuse of the judicial system to undermine proper exercises of police authority.

Also, there’s a big difference between seeking to control what people do in public, and what people do in private. As long as it occurs on private property, all adults present consent to the activity, and nobody sustains lasting injury, it’s not the government’s business what goes on behind closed doors.


[…] Malum Prohibitum is not about protecting your local culture from corruption by people who display behavior which you find offensive, as “rogerunited” tries to argue in comments on my prior post.  […]