Latin Maxim: Malum Prohibitum and Malum In Se

 



Malum in se is a Latin term that is literally translated to “wrong in itself" while malum prohibitum is literally translated from Latin to “wrong as prohibited.” 

Black Law's dictionary defines Malum in se as "a crime or an act that is inherently immoral, such as murder, battery, adultery, arson or rape" and Malum prohibitum as "an act that is a crime merely because it is prohibited by statute, although the act itself is not necessarily immoral such as possession of a controlled substance, prostitution, speeding, copyright infringement, drug use, indecent exposure" 

Criminal offenses that are malum in se or mala in se (plural) are deemed to be naturally evil or wrong in and of itself simply due to the nature of the act as they are inherently and objectively wrong acts that have no place in a civilized society. For Example, Most human beings believe that murder, rape, and theft are wrong, regardless of whether a law governs such conduct or where the conduct occurs and is thus recognizably malum in se.

Criminal offenses that are malum prohibitum or malum prohibits (plural) are those that are wrong because they are deemed to be against that particular society’s custom as mandated by its laws.

 The act itself is not necessarily immoral or inherently evil, they are wrong only because a statute makes it so, or by consensus that society agrees to prohibit the act, and is typically regulatory in nature. Mala prohibita crimes are considered to be victimless crimes.

Laws that are malum prohibitum are those that are wrong only because a particular law dictates that it is wrong. A law that requires people to cross the street using a crosswalk, for instance, is an example of a law that is malum prohibitum.

The distinction between malum in se and malum prohibitum offenses is best characterized as follows: a malum in se offense is "naturally evil as adjudged by the sense of a civilized community," whereas a malum prohibitum offense is wrong only because a statute makes it so.

The difference between malum in se and malum prohibitum is not always so cut and dried as some crimes fall within a gray area. For example, tax evasion may be a law that straddles the line between malum in se and malum prohibitum.

Comment to tell us which other laws you know that fall into either category. We will love to hear from you.


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