Course: Introductione / Criminal Law
Mala prohibita is a Latin legal phrase meaning that a criminal act is wrong merely because the government prohibits it.
Contrast with mala in se.
Mala prohibita is a Latin legal phrase that is used to describe criminal acts that are considered wrong only because they are prohibited by law. This concept is central to the study of criminal law and has played a significant role in shaping the modern legal system.
Mala prohibita offenses are typically crimes that are not inherently harmful or immoral but are prohibited by law for a variety of reasons. Examples of these offenses include traffic violations, public intoxication, and prostitution. These offenses are not considered inherently wrong or harmful but are prohibited by law to maintain social order and promote public safety.
Mala Prohibita vs. Mala In Se
The distinction between mala prohibita and mala in se offenses is important because it can affect the severity of punishment and the burden of proof required for a conviction. Such offenses are generally considered less serious than mala in se offenses and are often punished less severely. Additionally, the prosecution of such offenses often requires a lower burden of proof than the prosecution of mala in se offenses.
Criticisms of Mala Prohibita Offenses
Critics of the concept of mala prohibita argue that it can lead to the criminalization of harmless behavior and contribute to overcriminalization. In some cases, these offenses may be used as a way to target marginalized communities or to enforce moralistic or outdated laws.
Proponents argue that these offenses are necessary to maintain social order and promote public safety. They argue that the law should reflect societal values and that such offenses are an important tool for achieving these goals.
In recent years, there has been growing recognition of the importance of distinguishing between mala prohibita and mala in se offenses in the criminal justice system. Many advocates and policymakers have called for a reassessment of the criminalization of certain behaviors and for a greater focus on promoting public safety and reducing harm.
On This Site
On Other Sites
- Bero, S., & Sarch, A. (2020). The Problem of Over-Inclusive Offenses: A Closer Look at Duff on Legal Moralism and Mala Prohibita. Criminal Law and Philosophy, 14(3), 395-416.
[ Glossary ]
Last Modified: 07/02/2023