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"Malum In Se" and "Malum Prohibitum" are Latin phrases, but beyond their translations what differences do they carry with them in describing laws?

  • Malum In Se meaning "That which is wrong in itself"
  • Malum Prohibitum meaning "That which is wrong because it is prohibited"
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Malum prohibitum can be defined as

An act which is immoral because it is illegal; not necessarily illegal because it is immoral.

while malum in se can be defined as

An innately immoral act, regardless of whether it is forbidden by law. Examples include adultery, theft, and murder.

A side-by-side comparison is given here:

Legal scholars have used the terms mala prohibita and mala in se to draw the distinction between legally proscribed and morally proscribed offenses. The former are those offenses that are wrong simply because there exist formal, codified rules prohibiting them. Efforts to define mala in se, on the other hand, have resulted in vague, often conflicting meanings that leave the analyst with little but examples to serve as definitions. As a result, some have argued that the distinctions mala in se and mala prohibita be abandoned altogether. If one examines mala in se from an equity theoretical viewpoint, incorporating the concepts of intent and harm, it may be possible to arrive at a more understandable and useful concept.

In theory, the two are easy to distinguish, but in cases of, say, statutory rape, the differences fade away.

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These terms are typically used when discussing natural law and its relation to positive law ("positive" here means "laid down" as in man-made - nothing to do with the idea of positive/negative).

The classic exposition of how the Common Law regards the relation of these two ideas comes from William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) - p.36

From what has been advanced, the truth of the former branch of our definition is (I trust) sufficiently evident; that “municipal law is a rule of civil conduct prescribed by the supreme power in a state.” I proceed now to the latter branch of it; that it is a rule so prescribed, “commanding what is right, and prohibiting what is wrong.” Now in order to do this completely, it is first of all necessary that the boundaries of right and wrong be established and ascertained by law. And when this is once done, it will follow of course that it is likewise the business of the law, considered as a rule of civil conduct, to enforce these rights and to restrain or redress these wrongs. It remains therefore only to consider in what manner the law is said to ascertain the boundaries of right and wrong; and the methods which it takes to command the one and prohibit the other. For this purpose every law may be said to consist of several parts: one, declaratory; whereby the rights to be observed, and the wrongs to be eschewed, are clearly defined and laid down: another, directory: whereby the subject is instructed and enjoined to observe those rights, and to abstain from the commission of those wrongs: a third, remedial: whereby a method is pointed out to recover a man's private rights, or redress his private wrongs; to which may be added a fourth, usually termed the sanction, or vindicatory branch of the law; whereby it is signified what evil or penalty shall be incurred by such as commit any public wrongs, and transgress or neglect their duty. With regard to the first of these, the declaratory part of the municipal law, this depends not so much upon the law of revelation or of nature as upon the wisdom and will of the legislator. This doctrine, which before was slightly touched, deserves a more particular explication. Those rights then which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture. Neither do divine or natural duties (such as, for instance, the worship of God, the maintenance of children, and the like) receive any stronger sanction from being also declared to be duties by the law of the land. The case is the same as to crimes and misdemeanors, that are forbidden by the superior laws, and therefore styled mala in se [wrong in itself], such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. For that legislature in all these cases acts only, as was before observed, in subordination to the great lawgiver, transcribing and publishing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong.

But with regard to things in themselves indifferent, the case is entirely altered. These become either right or wrong, just or unjust, duties or misdemeanors, according as the municipal legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life. Thus our own common law has declared, that the goods of the wife do instantly upon marriage become the property and right of the husband; and our statute law has declared all monopolies a public offense: yet that right, and this offense, have no foundation in nature; but are merely created by the law, for the purposes of civil society. And sometimes, where the thing itself has its rise from the law of nature, the particular circumstances and mode of doing it become right or wrong, as the laws of the land shall direct. Thus, for instance, in civil duties; obedience to superiors is the doctrine of revealed as well as natural religion: but who those superiors shall be, and in what circumstances or to what degrees they shall be obeyed, it is the province of human laws to determine. And so, as to injuries or crimes, it must be left to our own legislature to decide, in what cases the seizing another's cattle shall amount to a trespass or a theft; and where it shall be a justifiable action, as when a landlord takes them by way of distress for rent. Thus much for the declaratory part of the municipal law: and the directory stands much upon the same footing; for this virtually includes the former, the declaration being usually collected from the direction. The law that says, “thou shall not steal,” implies a declaration that stealing is a crime. And we have seen that, in things naturally indifferent, the very essence of right and wrong depends upon the direction of the laws to do or to omit them. The remedial part of a law is so necessary a consequence of the former two, that laws must be very vague and imperfect without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongly withheld or invaded. This is what we mean properly, when we speak of the protection of the law. When, for instance, the declaratory part of the law has said, “that the field or inheritance, which belonged to Titius's father, is vested by his death in Titius;” and the directory part has “forbidden any one to enter on another's property, without the leave of the owner:” if Gaius after this will presume to take possession of the land, the remedial part of the law will then interpose its office; will make Gaius restore the possession to Titius, and also pay him damages for the invasion. With regard to the sanction of laws, or the evil that may attend the breach of public duties; it is observed, that human legislators have for the most part chosen to make the sanction of their laws rather vindicatory than remuneratory, or to consist rather in punishments, than in actual particular rewards. Because, in the first place, the quiet enjoyment and protection of all our civil rights and liberties, which are the sure and general consequence of obedience to the municipal law, are in themselves the best and most valuable of all rewards. Because also, were the exercise of every virtue to be enforced by the proposal of particular rewards, it were impossible for any state to furnish stock enough for so profuse a bounty. And farther, because the dread of evil is a much more forcible principle of human actions than the prospect of good.10 For which reasons, though a prudent bestowing of rewards is sometimes of exquisite use, yet we find that those civil laws, which enforce and enjoin our duty, do seldom, if ever, propose any privilege or gift to such as obey the law; but do constantly come armed with a penalty denounced against transgressors, either expressly defining the nature and quantity of the punishment, or else leaving it to the discretion of the judges, and those who are entrusted with the care of putting the laws in execution.

Of all the parts of a law the most effectual is the vindicatory. For it is but lost labor to say, “do this, or avoid that,” unless we also declare, “this shall be the consequence of your non-compliance.” We must therefore observe, that the main strength and force of a law consists in the penalty annexed to it. Herein is to be found the principal obligation of human laws. Legislators and their laws are said to compel and oblige; not that by any natural violence they so constrain a man, as to render it impossible for him to act otherwise than as they direct, which is the strict sense of obligation: but because, by declaring and exhibiting a penalty against offenders, they bring it to pass that no man can easily choose to transgress the law; since, by reason of the impending correction, compliance is in a high degree preferable to disobedience. And, even where rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to consist in the penalty: for rewards, in their nature, can only persuade and allure; nothing is compulsory but punishment. It is true, it has been held, and very justly, by the principal of our ethical writers, that human laws are binding upon men's consciences. But if that were the only or most forcible obligation, the good only would regard the laws, and the bad would set them at defiance. And, true as this principle is, it must be understood with some restriction. It holds, I apprehend, as to rights; and that, when the law has determined the field to belong to Titius, it is matter of conscience no longer to withhold or to invade it. So also in regard to natural duties, and such offenses as are mala in se: here we are bound in conscience, because we are bound by superior laws, before those human laws were in being, to perform the one and abstain from the other. But in relation to those laws which enjoin only positive duties, and forbid only such things as are not mala in se but mala prohibita [wrong because prohibited] merely, without any intermixture of moral guilt, annexing a penalty to non-compliance, here I apprehend conscience is no farther concerned, than by directing a submission to the penalty, in case of our breach of those laws: for otherwise the multitude of penal laws in a state would not only be looked upon as impolitic, but would also be a very wicked, thing; if every such law were a snare for the conscience of the subject. But in these cases the alternative is offered to every man; “either abstain from this or submit to such a penalty:” and his conscience will be clear, whichever side of the alternative he thinks proper to embrace. . . Thus, by the statutes for preserving the game, a penalty is denounced against every unqualified person that kills a hare, and against every person who possesses a partridge in August . . . And so too, by other statutes, pecuniary penalties are inflicted for exercising trades without serving an apprenticeship thereto, for not burying the dead in woolen, for not performing statute-work on the public roads, and for innumerable other positive misdemeanors. Now these prohibitory laws do not make the transgression a moral offense, or sin: the only obligation in conscience is to submit to the penalty, if levied. It must however be observed, that we are here speaking of laws that are simply and purely penal, where the thing forbidden or enjoined is wholly a matter of indifference, and where the penalty inflicted is an adequate compensation for the civil inconvenience supposed to arise from the offense. But where disobedience to the law involves in it also any degree of public mischief or private injury, there it falls within our former distinction, and is also an offense against conscience.

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