malum in se

Definition of malum in se

Etymology

From malum, the neuter of malus ("bad") + in ("in") + se, form of sui ("oneself", "itself").

Noun

malum in se (pl. mala in se)

1. (literally) Wrong in itself.
2. (law) The Latin phrase used in law to refer to crimes that are illegal from the nature of crime, that is, inherently evil without any fact of its being noticed or punished, as opposed to malum prohibitum. Used to develop common law crimes.

Further reading

Malum in se (plural mala in se) is a Latin phrase meaning wrong or evil in itself. This concept is a part of the value consensus model explanation of the origins of the criminal law. The phrase is used to refer to conduct assessed as inherently wrong by nature, independent of regulations governing the conduct. It is distinguished from malum prohibitum, which is wrong only because it is prohibited. For example, murder of human beings is universally agreed to be wrong by other human beings, regardless of whether a law exists or where the conduct occurs, and is thus recognizably malum in se. In contrast, consider driving laws. In the U.S., people drive on the right-hand side of the road. In the UK and other states of the Commonwealth, people drive on the left-hand side. Violation of these rules is an example of a malum prohibitum law because the act is not inherently bad, but is forbidden by policy, as set forth by the policy-makers of the jurisdiction. Malum prohibitum crimes are criminal not because they are inherently bad, but because the prohibited act is forbidden by the policy of the state.

This concept was used to develop the various common law crimes.[1] It may be criticized by remarking that if murder and rape may be considered generally defined as crimes, the inclusion of different behaviors that can be punished under such indictments are culturally variable (see marital rape, statutory rape, infanticide).

References

1. Canadian Law Dictionary, John A. Yogis, Q.C., Barrons: 2003