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Malum in se
is a Latin phrase
or evil in itself
. The phrase is used to refer to conduct assessed as sinful or inherently wrong by nature, independent of regulations governing the conduct. It is distinguished from malum prohibitum
Malum prohibitum is a Latin phrase used in law to refer to conduct that constitutes an unlawful act 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...
, which is wrong only because it is prohibited.
For example, most human beings feel that murder, rape, and theft is wrong, regardless of whether a law governs such conduct 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 law, as set forth by the lawmakers of the jurisdiction. Malum prohibitum
crimes are criminal not because they are inherently bad, but because the act is prohibited by the law of the state.
This concept was used to develop the various common law offences
Common law offences are crimes under English criminal law and the related criminal law of Commonwealth of Nations countries. These are offences of the common law which are developed entirely by the courts over the years, and for which there is no actual legislation.The various common law offences...
Another way to describe the underlying conceptual difference between "malum in se" and "malum prohibitum" is "iussum quia iustum" and "iustum quia iussum," namely something that is commanded (iussum) because it is just (iustum) and something that is just (iustum) because it is commanded (iussum).