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10 Nat. L.F. 21 (1965)
Real Crimes and Quasi Crimes

handle is hein.journals/ajj10 and id is 25 raw text is: REAL CRIMES AND QUASI CRIMES P. J. Fitzgerald \ BETWEEN crimes like murder, assault, and theft on the one hand and on the other hand offenses against modem statutory regulations concerning industry, transport and other aspects of present-day life there seems to be a deep and self-evident distinction. It is not simply that the former are more serious and harmful than the latter, for this is not always the case. Nor is it simply that one group is triable by a different procedure and punishable with higher penalties. In England, at any rate, many offenses of both groups are triable either sum- marily or on indictment, and the penalties for some in the second group may exceed those for some in the first; and in any case distinctions between proce- dure and penalties are purely artificial ones created by law. The real or natural distinction is that enshrined in the well-known theory that crimes may be classified into those which are mala in se and those which are mala prohibita - a theory which, it is often said, was exploded a long time ago,' but which, like an inveterate trouper, refuses to desert the stage. Arrayed in a new and more fashionable costume, it is now trying to make a comeback with the sup- port of Lord Devlin, who has argued that crimes such as murder and stealing are real crimes, i.e., sins with legal definitions, while the other sort are quasi crimes or technical offenses which, though possibly founded ultimately on some moral basis, consist often of fussy regulations whose breach it would be pedantic to call immoral.2 Indeed, the lack of moral content in much of the quasi-criminal law can be seen from the law's lack of concern whether or not the man charged is the actual wrongdoer, for this is a part of the law where both strict and vicarious liability are prevalent. Now this theory has an ancient lineage.3 Its origin it owes partly to Aristotle4 and the distinction which he drew between natural and conven- tional justice, and partly to a Judeo-Christian law conception of ethics. Black- stone, for instance, in language reminiscent of Antigone,5 talks of mala in se I See Bensley v. Bignold (1822) 5 B. & Ald. 335, at 341; 106 Eng. Repts. 1214, at 1216. 2 Patrick Devlin, Law and Morals (Published by the Holdsworth Club of the Faculty of Law, of the University of Birmingham, 1961), p. 3. Reprinted in DEVLIN, THE ENFORCE- MENT OF MORALS 26-42 (1965). 3 See The Distinction between Mala Prohibita and Mala in Se in Criminal Law, 30 COLUMBIA LAw REVIEW 74 (1930). 4NICHOMACHEAN ETHICS 1134b. 5 SOPHOCLES, ANTIGONE 453-7.

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