Mala in se and mala prohibita
"Mala in se" and "mala prohibita" are legal concepts that distinguish between acts deemed inherently wrong and those that are prohibited by law. "Mala in se" refers to actions that are universally recognized as immoral, such as murder, robbery, and rape; these acts are condemned across cultures and historical contexts. In contrast, "mala prohibita" includes actions that are considered wrong specifically because they have been made illegal by legislative authority, like running a red light or failing to register a vehicle. While both categories encompass unlawful acts, mala in se offenses are typically viewed as intrinsically evil, whereas mala prohibita offenses derive their wrongness from social consensus and established laws.
The legal treatment of these categories also differs; mala in se cases often involve an examination of the offender's intent and motivation, focusing on the moral dimensions of the act. In contrast, mala prohibita cases primarily assess whether the act occurred, regardless of the individual's belief or intention. Additionally, some scholars draw parallels between these legal concepts and military ethics, where actions considered inherently wrong can be evaluated against the principles of a just war. Understanding these distinctions is crucial for navigating discussions about morality, legality, and societal norms.
On this Page
Mala in se and mala prohibita
SIGNIFICANCE: This legal principle recognizes the existence of an absolute moral law as distinguished from the relativism of pragmatic politics, which fluctuates from time to time and from society to society.
Mala in se is a Latin term referring to immoral acts that are considered wrong in and of themselves. Examples include murder, robbery, theft, burglary, and rape; these are actions that are universally condemned as evil. Historically they have been considered to be wrong in virtually every society, regardless of culture or historical period. As such they have a long history in the common law.
Mala prohibita (singular, mala prohibitum) refers to those things that are wrong because they have been prohibited by legislative law. Actions that are unlawful by statute are such actions as running a traffic light or failure to register one’s car. These are wrong or illegal because they are prohibited by law, not because they are inherently and essentially evil.
Something that is inherently wrong can, of course, also be prohibited by law. For example, it is wrong to drive recklessly and endanger one’s life and the lives of other people, but that is also legislatively illegal and a violation of motor vehicle codes. Similarly, contaminating a source of drinking water by dumping toxic materials is both immoral and illegal.
Most or all the offenses punishable under the common law are considered mala in se. A basic presupposition of the common law, time-honored through the centuries, is that law and morality cannot be separated. The strongest argument for something being wrong in the eyes of the law is that it is morally wrong. Ordinary citizens are much more ready to accept the inherent wrongness of an act than they are its mere prohibition by a body of elected legislators. This fact is what gives the "oughtness" and moral strength to lawful obedience.
The laws of evidence are different in the two types of cases. Mala in se offenses require a consideration of motivation. One’s mental state, attitude, and intention may be weighed in assessing the degree of guilt or innocence. In mala prohibita cases, only the factuality of whether the accused actually committed the offense is at issue. For example, where it is illegal to sell alcoholic beverages to minors, the question is whether a person did, in fact, sell those drinks to a minor. It makes no difference in the eyes of the law that the person selling them sincerely believed the person was of the proper age or even that the minor lied to the seller.
Some scholars link the legal concepts of mala in se and mala prohibita with the military concept of a just war, including jus ad bellum (whether it is appropriate to enter a war) and jus in bello (just conduct in war). In this context certain inherently evil acts, like killing and violence, can be justified in the course of a war if they follow certain criteria.
Bibliography
"Crime." Legal Information Institute. Cornell U Law School, 2016. Web. 26 May. 2016.
Davis, Mark S. "Crimes Mala in Se: An Equity-Based Definition." Criminal Justice Policy Rev. 17.3 (2006): 270–89. Print.
Dige, Morten. "Explaining the Principle of Mala in Se." Jour. of Military Ethics 11.4 (2012): 318–32. Print.
Garner, Bryan A., ed. Black’s Law Dictionary. 8th ed. St. Paul, Minn.: Thomson/West, 2004.
Lee, Youngjae. "Mala Prohibita, the Wrongfulness Constraint, and the Problem of Overcriminalization." FLASH: The Fordham Law Archive of Scholarship and History, 2022. DOI: 10.1007/s10982-022-09443-z. Accessed 8 July 2024.
Wood, J. D., and Linda Picard, eds. Dictionary of Law. Springfield, Mass.: Merriam-Webster, 1996.