Sunday, July 26, 2009

Malum in se vs malum prohibitum

Malum in se a Latin phrase referring to crimes that are innately evil from the nature of the crime, without any notice of it being punished, based on English common law. Common law crimes are malum in se crimes. On the other hand, malum prohibitum is a Latin phrase that refers to crimes that society decides are wrong for some reason or lack of reason but are not innately evil. Malum prohibitum crimes include public order crimes and cultural taboos. Simply because something is legal does not make it right. Just because something is illegal does not make it wrong.

Malum in se: murder and manslaughter, rape, battery, assault, child abuse, theft (such as burglary and shoplifting), driving under the influence (DUI), robbery, extortion, kidnapping, fraud, deceit, forgery, counterfeiting, embezzlement, arson, vandalism, terrorism, genocide, treason, crimes against humanity

Malum prohibitum: speeding, parking violations, driving on the wrong side of the road, copyright infringement, drug possession, not wearing seat belts, indecent exposure, having a broken tail light, smuggling, trespassing, doing certain things without a license, selling certain things to minors, food and drug regulatory offenses, tax law violations (such as tax evasion), publication expressing discrimination, animal cruelty

You make the call: abortion, defamation, usury

Malum in se offenses are usually felonies, and they sometimes involve violent and nonconsensual activities. Malum prohibitum offenses are usually misdemeanors and usually involve nonviolent and consensual activities. However, more people are incarcerated for malum prohibitum offenses than for malum in se offenses. Malum prohibitum cases are naturally more likely to inspire claims of mistake of law than malum in se cases. Defendants in malum prohibitum cases can claim that they were unaware of the illegality and the wrongfulness of the offense, but those in malum in se cases cannot.

Feminism has in part caused increased prevalence of malum in se incidents and excessive or unconstitutional malum prohibitum laws.

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