Key Takeaways

  • Mala prohibita crimes are actions deemed unlawful solely because they are prohibited by statute, not because they are inherently immoral.
  • These offenses often regulate social order (e.g., traffic violations, gambling, or public intoxication) and typically carry lighter penalties than crimes mala in se.
  • Severity varies: While many mala prohibita crimes are minor infractions, others such as certain drug or firearm offenses may involve significant penalties.
  • Laws evolve: Because mala prohibita crimes depend on legislation, they are subject to frequent change as societies adjust their views on what behaviors should be regulated.
  • Philosophical debates question whether it is justifiable to punish conduct that is not inherently wrong but only unlawful because the state prohibits it.
  • Distinction from mala in se: Crimes mala in se (e.g., murder, assault, theft) are inherently wrong and carry stronger moral condemnation.

Mala prohibita (the singular is malum prohibitum) is a term applied to any action that is criminalized strictly by statute and statutory law. The phrase is Latin, and translates as wrong because it is prohibited. This class of crime is contrasted with crimes mala in se, the Latin term for "wrong in itself," and both are taken directly from the old common law system. Consequently, not much weight is placed on them in modern courts, though the distinction remains an interesting one.

Are Crimes Mala Prohibita Severe?

Crimes mala prohibita are usually those which incur no serious punishment, such as minor infractions and misdemeanors. However, the primary feature of crimes mala prohibita is not their lack of severity, but that they are acts criminalized by statute in an effort to regulate the general behaviors of society. As a general rule these do not include crimes that directly harm the person and property of others. Consequently, crimes mala prohibita do not usually carry powerful moral stigmas along with them. There is nothing wrong in itself with a Briton driving on the right side of the road, but it is still a crime malum prohibitum in the United States. Some familiar crimes mala prohibita are drug abuse, drunk driving, gambling, public intoxication, carrying a concealed weapon, and parking in a handicapped zone.

Distinction Between Mala Prohibita and Mala in Se

Crimes mala prohibita must be contrasted with crimes mala in se. Mala in se crimes—such as murder, assault, and theft—are inherently wrong and condemned across societies because they violate basic moral principles. By contrast, mala prohibita crimes are not inherently immoral but become criminal because legislatures define them as such.

This distinction is important in understanding punishment and stigma. For instance, a conviction for a mala in se crime usually carries deep moral condemnation, while a mala prohibita offense like jaywalking or gambling may be punished but does not necessarily imply moral blameworthiness. Recognizing this difference helps courts, lawmakers, and society decide how to classify and treat various types of conduct.

Can Laws on Crimes Mala Prohibita Change?

Crimes mala prohibita are sometimes powerfully established in the traditions of the United States, and sometimes so short-lived that they can even be called experimental. U.S. legislation is ceaselessly criminalizing and decriminalizing. In an attempt to optmize society's performance and prosperity, the criminal law is continually undergoing changes on legislative and judiciary levels and, because they exist more firmly in the letter of the law than in the hearts of mankind, crimes mala prohibita are the ones most often transformed.

Public Justifiability and Criticisms

One of the main criticisms of mala prohibita offenses is that they often lack clear moral justification. Legal philosophers argue that punishing behavior that is not inherently wrong requires strong public justification—otherwise, criminalization may appear arbitrary. For example, driving on the left side of the road is illegal in the U.S. but not in the U.K.; this shows how these crimes depend on legal convention rather than universal moral wrongs.

Critics suggest that overreliance on mala prohibita laws can weaken public trust in the justice system, especially when individuals face harsh penalties for actions many do not view as morally objectionable. Supporters, however, argue that such laws are necessary for maintaining order, protecting public safety, and preventing broader harms that may result from seemingly minor infractions.

Frequently Asked Questions

  1. What does mala prohibita mean in criminal law?
    It refers to conduct that is unlawful only because it is prohibited by statute, not because it is inherently immoral.
  2. How are mala prohibita crimes different from mala in se crimes?
    Mala prohibita crimes are wrong because law prohibits them, while mala in se crimes are inherently wrong by moral or natural standards.
  3. Can mala prohibita crimes carry severe penalties?
    Yes, although many are minor, some like drug possession or weapons violations can involve significant fines or prison time.
  4. Why do laws on mala prohibita crimes change so often?
    Because they are based on statutes, not universal moral wrongs, legislators frequently adjust or repeal them as social values evolve.
  5. Why are mala prohibita crimes criticized by some legal scholars?
    Critics argue they may lack moral justification and risk undermining public trust if penalties seem excessive for behavior that isn’t inherently wrong.

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