Читать книгу Criminology For Dummies - Steven Briggs - Страница 39

In England prior to the 1600s, private citizens or government officials brought cases before judges, who would then decide whether certain acts were illegal. The judges wrote opinions that contained the reasoning behind their decisions. Over time, judges came to rely on the consensus that emerged from these opinions. The collection of these written opinions came to be known as the common law. By the 1600s, the judges — not the English Parliament — had defined crimes such as murder, theft, rape, and assault.

Of course, clever citizens repeatedly found new ways to commit immoral acts, so society continued to call on judges to refine the common law by defining new crimes. For example, in the 1700s, judges concluded that inciting rebellion against the government should be criminalized; thus, they created the crime of sedition.

Sometimes judges didn’t criminalize certain conduct, such as incest, and, as a result, the English Parliament stepped in to pass a law (known as a statute) that made familial sex a crime.

Today, common law plays a less important role than it did centuries ago. In the United States, people are prosecuted when they violate statutes — laws enacted by legislatures — rather than when they violate the common law. But, like in England centuries ago, human beings still find new ways to commit immoral acts, so legislatures must constantly refine and add to their criminal statutes.

The line between mala in se and malum in prohibita crimes isn’t always crystal clear. For example, some malum in prohibita crimes involve conduct that’s arguably immoral. I wouldn’t argue that driving without a license is immoral. However, the law against selling a drugged horse exists because unscrupulous horse traders used to sedate horses to make them more attractive to purchasers. The courts decided to regulate this conduct because society considers cheating the buyer an immoral act.

As you can see, laws can punish acts that are moral or immoral. But keep in mind that not all immoral acts are punished by laws. Legislatures don’t want to try to control every facet of human life through regulation. For example, most people agree that sleeping with your best friend’s spouse is immoral, yet doing so is completely legal.