Malum prohibitum (plural mala prohibita, literal translation: "wrong [as or because] prohibited") is a
Latin phrase used in
law to refer to conduct that constitutes a
crime only by virtue of
statute, as opposed to conduct evil in and of itself, or
malum in se. Conduct that was so clearly violative of society's standards for allowable conduct that it was illegal under English
common law is usually regarded as "
malum in se". An offense that is malum prohibitum, for example, may not appear on the face to directly violate
moral standards. The distinction between these two cases is discussed in State of Washington v. Thaddius X. Anderson (Supreme Court of the State of Washington, 67826-0, decided August 2000)
[1]:"Criminal offenses can be broken down into two general categories -- malum in se and malum prohibitum. The distinction between malum in se and malum prohibitum offenses is best characterized as follows: a malum in se offense is "naturally evil as adjudged by the sense of a civilized community," whereas a malum prohibitum offense is wrong only because a statute makes it so. State v. Horton, 139 N.C. 588, 51 S.E. 945, 946 (
1905) "Public welfare offenses" are a subset of malum prohibitum offenses as they are typically regulatory in nature and often "'result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize.' "
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Those things which are prohibited by law, and therefore unlawful.
A distinction was formerly made in respect of contracts, between mala prohibita and mala in se; but that distinction has been exploded, and, it is now established that when the provisions of an act of the legislature have for their object the protection of the public, it makes no difference with respect to contracts, whether the thing be prohibited absolutely or under a penalty.
This entry contains material from Bouvier's Legal Dictionary, a work published in the 1850's.
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