Not all wrongs should be criminalized. To break that down a little further, an intentional act can be immoral, unethical, shameful, even wicked or evil, at least if you believe in those last two concepts; yet it may be unwise to have the government threaten to incarcerate those who commit it.
What’s my point? That perhaps there are wrongs that cause no harm except to the wrong-doer himself, and therefore aren’t properly the province of the penal code? Nope. An act can even cause harm to others, be deliberate, and fit some or all of the synonyms for “bad” listed above, and still not be criminalized.
Let me throw out a proposition to test my thesis:
It is a truth universally acknowledged that a man who sleeps with his wife’s sister is a douchebag.
Everyone would agree with the proposition, no argument. Even those who violate this principle would agree that the rule is generally true, but apparently somehow theirs is a special case. Their wife is a shrew who drove them into the arms of the sister; maybe the wife is in a coma, needs care 24/7 and besides he always knew he loved the sister more, and you can’t stop true love, blah blah blah. The self preservation instinct will kick in and offer up an excuse.
But they wouldn’t disagree with the general statement. (This brings to mind another rule of life: Some things that are not-OK if you do them, are OK if I do them. But I digress.)
So it’s a wrong, an immoral act. Does it cause harm? Of course. You have broken your promise to your wife, shattered her trust in you and probably made it more difficult for her to trust others. You have irrevocably changed your wife’s sisterly relationship, and if it needs stating, for the worse. This injures not only your wife but your new lover. Many would even say you harmed yourself, but if you don’t see that, I can’t explain it.
Thus we have a guilty act and a guilty mind, and at least one victim, perhaps as many as three. But no one in their right mind believes this should be criminalized. Even nations that we Americans often prejudge as supremely unenlightened have acknowledged that not all wrongs must be outlawed.
How then do we explain the felonization of so many malum prohibitum offenses? Well, some say smugly, the law is the law and must be respected. Don’t do the crime if you can’t do the time.
May I (humbly) suggest that only a person with a swelled head could be so cavalier.