In this lesson, we’ll go over the definition of ‘mala in se’ crimes. We will also distinguish between these types of crimes and ”mala prohibita” crimes. Finally, examples will be provided to better illustrate the concept of ”mala in se” crimes.
Mala in se Defined
Not every crime is equal. For instance, robbing a bank is a very different crime than violating a traffic rule. Though both are technically against the law, these crimes still fall into two very distinct categories.
The first category constitutes the basis for the common law, or the system of law established by customs in England prior to the colonization of the United States. These are actions that are deemed evil because of the nature of the action and are well recognized as crimes even if a person has not read the law. Crimes like this are mala in se crimes – those which violate society’s view of morality. Often these are more serious crimes, such as felonies, which can result in a prison sentence. An armed robbery would fall into this category.
The second category consists of crimes that are not inherently evil in themselves, but rather are crimes because they violate a law instituted in a particular society. These crimes are mala prohibita. A person may be unaware that he is committing a crime mala prohibita because those actions are not obviously wrong. For instance, someone unaware of certain traffic rules in a region might violate those rules without meaning to do so. Mala prohibita crimes are usually considered less serious and are often charged as misdemeanor crimes or infractions where prison is not a possible penalty.
Malum in Se vs. Malum Prohibitum
The vast majority of crimes are mala prohibita; cities, local municipalities, and states all have the ability to enact regulations, statutes and ordinances to create a safer and more orderly society. Mala in se crimes are more easily recognized. For example, children learn at a young age that they should not steal, hurt someone, or commit murder, no matter where they live.
In contrast, crimes mala prohibita may be more difficult to recognize. The act of parking a car in a no parking zone is not itself an evil act, but because of the laws enacted by society it is a crime. Crimes mala prohibita may be more difficult for the average citizen to recognize because many people do not take the time to read every law in their jurisdiction. Because of this, those charged with crimes mala prohibita may claim that they were unaware that a particular law existed. Additionally, mala prohibita crimes are not static; laws constantly change to adjust to the demands of society. While a particular action may be a crime one year, changes in the law could make the action legal the following year.
Although mala prohibita crimes can vary from state to state, mala in se crimes are universal. Rape, murder, robbery, and assault and battery are all considered morally wrong actions. These crimes also violate the law, but they are first and foremost actions which go against the standards of society. Ignorance of the law is a much less common defense for people charged with mala in se crimes because those acts are so obviously illegal.
Mala in se crimes
- assault and battery
Mala prohibita crimes
- parking violations
- public intoxication
- non-payment of taxes
- failing to obtain a building permit
Let’s review. A mala in se crime is that in which the perpetrated action itself is evil, those actions that your parents always told you were wrong. These crimes formed the basis of the common law of England prior to the settling of the colonies. Although laws have been enacted in every state to prohibit these types of conduct, these crimes are viewed by society as unacceptable. As opposed to crimes mala prohibita, which are not so obviously wrong, crimes mala in se are easily recognized as acts that should not be committed.