Malum in se refers to inherently wrong crimes based on moral principles, while malum prohibitum refers to acts that are wrong because they are prohibited by law. Crimes like murder and rape are malum in se, while tax evasion falls into a gray area.
Malum in se is a Latin term that is literally translated as “wrong in itself”. In the legal world, malum in se is generally used to refer to fundamentally wrongful crimes based on fundamental principles of morality and the rules of society. This term is differentiated from acts considered malum prohibitum, which refer to acts that are wrong because they are deemed contrary to the customs of that particular society as mandated by its laws. In general, the malum in se and malum prohibitum dichotomy is described entirely in the context of criminal law.
Criminal offenses that are malum per se are those that are considered naturally evil simply because of the nature of the act. For example, crimes such as murder, rape, and battery fit this description as they are inherently and objectively wrong acts that have no place in a civilized society. Any crime that is objectively morally reprehensible, like most crimes defined by the common law, is considered malum per se.
As societies develop, rules and regulations beyond those that prohibit morally reprehensible crimes are needed to ensure that society can continue to function properly. The existence of business entities that form the backbone of the world economy requires regulation, although violations of these rules and regulations do not strike at the heart of the morality and functioning of a civil society. Violations of these rules and regulations are differentiated from those which are considered malum per se and are referred to as malum prohibitum, which is literally translated from the Latin as “wrong as forbidden”.
Laws that are malum prohibitum are those that are wrong only because a particular law dictates that they are wrong. Malum Proibitum’s crimes are not limited to those in the business world. A law that requires people to cross the street using a pedestrian crossing, for example, is an example of a law that is malum prohibitum.
However, the difference between malum in se and malum prohibitum is not always so cut and dried. For example, tax evasion can be a law that straddles the line between malum in se and malum prohibitum. While taxes are a social construct whose non-payment does not seem objectively morally reprehensible, there is a fair argument that tax evasion is on par with the malum in se crime of theft, which involves the direct appropriation of a person’s property. other. Many crimes fall into this gray area.
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