Mala in Se and Mala Prohibita Essay ⋆ Criminal Justice Essay Examples ⋆ EssayEmpire

The Latin phrases mala in se and mala prohibita (malum in se and malum prohibitum in the singular) are used to distinguish between two categories of criminal actions. The term mala in se describes actions that are inherently immoral or literally “wrong in themselves.” Mala in se offenses include serious crimes against both persons and property. Murder, for example, is generally considered to be such a severe offense that it is malum in se. In contrast, the phrase mala prohibita describes inherently amoral conduct that is only wrong because it is forbidden by the law. Breaking the speed limit is one example of malum prohibitum—there is nothing inherently immoral about driving a car at 100 miles per hour, but this behavior is mala prohibita in the jurisdictions where it is illegal.

Scholars have used several standards to define malum in se actions, including divine law, natural law, and consensus. First, early definitions of malum in se used words like wicked, evil, and sin, which suggests a religious understanding of this concept. Influential English legal scholar Sir William Blackstone grounded his understanding of malum in se in Christianity and the existence of divine rules for human conduct received from the “great lawgiver.” He held that actions proscribed by divine law were mala in se, and thus were immoral regardless of human acceptance or prohibition of them. Natural law was a second standard that was used to define malum in se offenses. Although natural law was sometimes viewed as one aspect of divine law, other scholars defined natural law as a set of human rights or a code of behavior that could be discovered using human reason; violations of this law were deemed mala in se. Finally, rather than using some set of divine or natural laws as the standard for mala in se, other scholars have used the term to describe those actions that humans agree are inherently evil. Thus, consensus is a third potential standard for defining malum in se behavior.

In addition to the distinction between their inherent morality, a second difference between the concepts is the permanent status of mala in se offenses from place to place. Because an action’s malum prohibitum designation results solely from its legal status, an offense can be malum prohibitum in some places but not others, even within the same country or state. For example, certain forms of gambling are legal in some states but mala prohibita in others. Similarly, within the state of Nevada, prostitution is malum prohibitum in some counties but is permitted in others. In contrast, mala in se actions remain immoral in all locations (even places where they are legal) because the behavior is considered wrong in itself.

These geographic differences in mala prohibita offenses reveal a relationship between a society’s values and the definition of malum prohibitum behavior. That is, the morals of a community will influence which offenses are deemed mala prohibita. For example, drug and alcohol regulations in the United States are influenced by society’s attitudes toward particular substances. Some substances (such as cocaine) are viewed very negatively in the United States and thus have been a focus of the War on Drugs. Conversely, other addictive and potentially harmful substances (such as alcohol) are socially accepted and are subjected to far less regulation. Thus, American attitudes toward these substances have influenced their designation as either mala prohibita or moral behavior.

Because social values can influence the definition of malum prohibitum, changes in those values can alter a behavior’s legal and ethical status. Thus, a third difference between mala in se and mala prohibita offenses is the permanence of mala in se offenses over time. Because mala in se actions are inherently evil, their immoral status is permanent. Thus, murder would be malum in se even if future laws permitted the killing of other humans. In contrast, because mala prohibita crimes are wrong only because they are illegal, some acts become right or wrong over time based solely on changes in the law. For example, changing views regarding alcohol affected the legal and ethical status of this substance in the United States. The sale of alcohol was legal prior to and after Prohibition, but malum prohibitum during that period. More recently, the statuses of tobacco and marijuana use are undergoing similar changes. Smoking tobacco was once widely accepted in the United States, but has recently been forbidden in many public places (e.g., restaurants and government buildings) as society has taken an increasingly unfavorable view of this behavior. In contrast, the use of marijuana has been malum prohibitum for decades, yet some states have begun to ease legal restrictions on its use as social acceptance of marijuana has increased. Thus, the offenses constituting mala prohibita can change over time, unlike the permanently immoral status of mala in se crimes.

Criticisms

Although the concepts of mala in se and mala prohibita persist in legal terminology, they have been criticized on several fronts. One criticism is that there is no ethical or philosophical foundation for the universal truth implied by mala in se. The use of divine or natural law to define mala in se suggests the existence of permanent and absolute standards for behavior that are applicable to all epochs and cultures. Some critics have argued that this assumption of universal truth is incorrect. Similarly, other scholars have suggested that consensus is insufficient for defining mala in se offenses, since it is difficult to identify acts that humans have always considered wrong. For example, even acts that are now considered extreme (such as cannibalism) have been acceptable behavior in some societies.

A further criticism is that the distinction between mala in se and mala prohibita becomes unclear when the concepts are applied to specific behaviors. Scholars have repeatedly noted the difficulty of placing individual offenses into one category or the other, and they often disagree about the specific crimes that belong in each category. Prostitution, for example, could be considered malum in se as a violation of a divine or religious law restricting sexual activity to marriage; alternatively, it could be viewed as an act involving consenting persons that is merely malum prohibitum in some places. The difficulty of designating specific offenses as mala in se or mala prohibita has led some authors to suggest that these concepts are unnecessary and meaningless. As Richard Gray has noted, English philosopher and legal scholar Jeremy Bentham famously ridiculed the distinction between the two concepts by stating that “the acute distinction between mala in se, and mala prohibita: which being so shrewd, and sounding so pretty, and being in Latin, has no sort of occasion to have any meaning to it: accordingly it has none.”

Legal Utility

The current legal uses of mala in se and mala prohibita differ from their original purpose. The early development of the concepts was rooted in English common law and attempted to limit monarchical power. In 1496, English Chief Justice John Fineux argued that the king’s pardoning authority did not encompass mala in se crimes because these acts were inherently evil. Conversely, because mala prohibita crimes were only wrong because the monarch had forbidden them, the king held the power to permit these offenses. Fineux’s discourse is one of the earliest known uses of these concepts. The English civil war and Bill of Rights in the late 17th century eliminated the need to limit monarchical power by distinguishing between mala in se and mala prohibita offenses. However, the U.S. court system continues to use these terms. One modern use of the concepts is for determining the requirements for criminal intent (also known as mens rea or scienter). Conviction for a malum in se crime (e.g., murder) generally requires proof of criminal intent, while conviction for a malum prohibitum offense (e.g., breaking traffic laws) does not. Additionally, the concepts may be used to determine the offender’s responsibility for the unanticipated consequences of the crime. Because persons found guilty of mala in se offenses are deemed to have criminal intent, they are generally held responsible for the accidental results of their actions, while those guilty of mala prohibita crimes are not.

Bibliography:

Blackstone, William. Commentaries on the Laws of England in Four Books. Philadelphia: J. B. Lippincott, 1893.
Davis, Mark S. “Crimes Mala in Se: An Equity-Based Definition.” Criminal Justice Policy Review, v.17 (2006).
Gray, Richard L. “Eliminating the (Absurd) Distinction Between Malum in Se and Malum Prohibitum Crimes.” Washington University Law Review, v.73 (1995).

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