Saturday, July 25, 2015


My father, Joseph Terrence Brennan, was a very uncomplicated man. His counsel to me, given usually on some occasion of my mischief, was simple and direct: “You know what’s right and you know what’s wrong. Do what’s right.”

I think about that sage piece of advice often when I listen to the news. It was James Madison who observed that if men were angels there would be no need for government. Indeed the founders of our nation were well aware that liberty and virtue are closely related.

In law school, I learned that there are two kinds of crimes: those which are mala prohibita and those which are malum in se. The first are offenses which are wrong simply because they are prohibited by the law, like traffic laws, tax laws, licensing laws. 

The second are those offenses which are wrong in and of themselves. Like murder, robbery, and arson. Speed limits have to be posted in order to be enforced, but there are no signs along the road saying “Don’t kill” or “Don’t steal.”

The law presumes that all people over the age of reason know the difference between right and wrong. The age of reason is defined as that time of life when a person is able to distinguish between right and wrong. In Roman Catholic tradition, it was assumed to be seven years of age. The criminal laws of most states treat offenders under sixteen as juveniles having less responsibility for their actions.

For adults, the capacity to distinguish between right and wrong is presumed, unless challenged by a criminal defendant. If challenged, the prosecutor has the burden of proving that the defendant knew the difference between right and wrong. In fact, the inability to distinguish between right and wrong is the definition of insanity in criminal cases.

George Washington insisted that there can be no liberty without morality and no morality without religion. Robert Fulghum, in his charming book, All I Really Need to Know I Learned in Kindergarten reaffirms the importance of learning right from wrong early in life.

The relationship between religion and morality is everywhere perceived and admitted. That makes sense. Religion is essentially a belief about human life; what it is, where it came from, where it is going and what we should do with it.

The First Amendment prohibits the establishment of a religion in America. That has led to the belief that government must remain neutral in matters of morality. Neutrality, in turn, has spawned a belief that morality is a matter of personal opinion or preference.

In such a milieu, the difference between right and wrong is blurred. Many universities teach that everything is relative; that there are no absolutes and truth itself becomes a matter of personal preference or opinion.

Or plain unvarnished selfishness. If it feels good, do it. If you want it, take it. If you don’t want it, toss it. The whole idea of some actions being wrong in and of themselves – malum in se --  is incomprehensible. There is no silent, insistent inner voice of judgment, no sense of guilt, no feeling of wrongdoing.

All law becomes mala prohibita; the only downside is being caught. Law enforcement is seen as tyranny, the organized infringement upon liberty. And the minions of law enforcement then are seen as the enemy.

How else can we explain riots, anarchy, the looting and burning of stores, the assassination of policemen?

There was a time in America when the average person believed in heaven and hell; that there is judgment after death, that a just Creator knows all and sees all and rewards the good and punishes the evil. Not so in 2015.

Where there is no God, there is no good and evil; no wrong or right. If being true to one’s own standards is the only measure of human conduct how can we condemn Nidal Hassan who thought he was praising Allah by killing Americans?

ISIS perceives itself as engaging in a holy war. That’s why they can recruit all over the world. That is why they rout the mercenary armies sent against them. I am tempted to ask, What do we believe? What will we die for?


  1. A secular take on malum in se:

  2. A major problem and confusion in the society is that if something is legal, it is assumed to be moral. Nothing could be further from the truth, as Bastiat pointed out.
    We must return to the principal that the majority, the collective, society or even all but one individual cannot do with moral legitimacy what is traditionally malum per se to any individual. A good place to start, literally and in spirit, might be the Ten Commandments.
    A society which legally violates nearly every one of them, and runs its "progressive" politics proudly in direct violation of the 10th, can, and in fact must, soon perish from this earth. The U.S. was a grand experiment, one that has literally lost its soul.