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As a means for thinking more precisely about the moral content of criminal offenses, this article argues that we should think of malum in se and malum prohibitum not as binary categories into which an offense does or not fit, but rather as contrasting, scalar qualities that all criminal offenses, to one degree or another, possess. Under this approach, an offense is malum in se to the extent that it criminalizes conduct that is morally wrong independent of the law, while it is malum prohibitum to the extent it criminalizes conduct that is morally wrong (if at all) in virtue of its being illegal.
In a recent study of how the public views the blameworthiness of various white collar crime-related activity, my collaborator, Matthew Kugler, and I asked our subjects to compare the acts described in two seemingly similar scenarios. In one scenario:
Jones is ‘a member of the upper house of the State Legislature, where he serves on an important legislative committee that is choosing the site of a major new state office building’. Larson is ‘CEO of a company that owns property adjacent to one of the sites that Jones’ committee is considering’. CEO Larson offers Jones, the legislator, $20,000 in return for Jones’ agreeing to vote for the site, and Jones accepts the offer.
In the other scenario:
Heller is ‘a board-member of a large private corporation . . . currently serving on an important committee within the company that will choose the site of a major new office building that the company plans to build’. Larson is again ‘CEO of a company that owns property adjacent to one of the sites that Heller’s committee is considering’. Larson offers Heller, the company board member, $20,000 if Heller votes for the site Larson favours, and Heller accepts the offer.
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