Crimes Mala in Se: An Equity-Based Definition

• Published date: 01 September 2006
• Date: 01 September 2006
• Author: Mark S. Davis
• DOI: 10.1177/0887403405281962
• Subject Matter: Articles

10.1177/0887403405281962Criminal Justice Policy ReviewDavis / CrimesMala in Se

Crimes Mala in Se:

An Equity-Based Definition

Mark S. Davis

Kent State University

Legal scholars have used the terms mala prohibitaand mala in se to draw the distinction

between legally proscribed and morally proscribed offenses. The former are those

offenses that are wrong simply because there exist formal, codified rules prohibiting

them. Efforts to define mala in se, on the other hand, have resulted in vague,often con-

flicting meanings that leave the analyst withlittle but examplesto serve as definitions. As

a result, some have argued that the distinctions mala in se and mala prohibita be aban-

doned altogether.If one examines mala in se from an equity theoretical viewpoint, incor-

porating the concepts of intent and harm, it may be possible to arrive at a more under-

standable and useful concept.

Keywords: mala in se; mala prohibita; equity theory

There are several problems with the concept of malum in se as Blackstone and sub-

sequent writers (e.g., Klotter, 1983; J. F. Stephen, 1976) have defined it. Cham-

bliss and Seidman (1971) note that the distinction between malum in se and malum

prohibitum breaks down when the concepts are applied to specific crimes. For exam-

ple, how would one classify statutory rape, an offensein which the criminality inheres

not so much in the conduct per se but in the age of the victim (Prassel, 1979)? A similar

problem arises with the abortion of a girlwho has been raped (Gray, 1995; Hall, 1960):

On one hand it could be argued that a life is intentionally taken, making the act a

malum in se; on the other hand, if the legal prohibition against abortion changes from

era to era, then is it not more appropriately categorized as a malum prohibitum?

Another problem has to do with the connection between Blackstone’s conception

of malum in se and the so-called laws of God. It is evident that Blackstone’s definition

was grounded in the tenets of Christianity. Connecting mala in se to divine law

through the use of words such as evil and sin to describe such offenses suggests a uni-

versal quality (Wolfe,1981) that may not exist. As a practical matter, it may be prefer-

able to formulate a rationale for the classification of crimes that is independent of a

religious belief system. Anglo-American law and Judeo-Christian ethics may be his-

torically and otherwise inextricably interwoven and consequently inseparable. But

some legal vestiges such as the concept of mala in se argue for a fresher, secular

approach.1Modern laws govern the behavior of believers and nonbelievers alikeand

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Criminal Justice

Policy Review

Volume 17 Number 3

September 2006 270-289

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Davis / Crimes Mala in Se 271

as such should have a rationale aside from that which is tied to the belief in a divine

power and all that implies.

A final problem with mala in se relates to its continued use in modern times. Ordi-

narily one might argue that the distinctionmalum in se is of mere historical interest and

therefore does not warrant further scholarly attention. However, most criminal justice

textbooks continue to discuss it as if it were a valid and useful concept. This suggests a

tendency on the part of at least some criminal justice scholars to uncritically accept the

concepts bequeathed them by the founding legal fathers. This acceptance has been

reinforced during the past 200 years by the use of mala in se and mala prohibita by jus-

tices of the U.S. Supreme Court in their opinions. Such seemingly blind adoption

ignores the problems discussed above and perpetuates a concept that remains murky at

best.

In view of these problems, the purpose of this article is threefold: (a) to provide a

brief overview of the concepts of mala in se and mala prohibita as discussed by

Blackstone and subsequent scholars and jurists, (b) to offer a more secular conception

of mala in se that is grounded in equity theory and that is not defined primarily by

examples, and (c) to discuss the implications of this reconceptualization of mala in se

for criminal justice theory, policy, and practice.

Definitions of Mala Prohibita and Mala in Se

According to Black’s Law Dictionary (Black, Nolan, & Nolan-Haley, 1990),

offenses mala prohibita are simply “a wrong prohibited; a thing which is wrong

because prohibited; an act which is not inherently immoral, but becomes so because

its commission is expressly forbidden by positive law” (p. 960). They are illegal for no

reason other than they are sanctioned by codified laws. A crime malum in se, on the

other hand, is “a wrong in itself; an act or case involving illegality from the very nature

of the transaction” (p. 959). “An act is said to be mala in se,” according to Black’s,

“when it is inherently and essentially evil,that is, immoral in its nature and injurious in

its consequence, without any regard to the fact of its being noticed or punished by the

law of the state” (p. 959). Although there is reason to believe that the terms mala in se

and mala prohibita predate Blackstone’s Commentaries (Gray, 1995; Hall, 1960;

Wolfe, 1981), his appears to be the most oft-cited explication of them.

The majority of writers who make reference to mala in se and mala prohibita,

including justices of the U.S. Supreme Court, cite Blackstone as their source.

Blackstone, like more contemporary legal scholars, apparently had little difficulty

defining crimes mala prohibita. These consist of those offenses society saw fit to pun-

ish through formal law. Implicit in Blackstone’s definition was that there is nothing

inherently bad in crimes mala prohibita. They are wrong simply because they are pro-

hibited by law.As such, crimes mala prohibita do not require mens rea (Sieh, 1990).

There is a latent social purpose behind defining behaviors as mala prohibita.

According to Hagan (1998), laws prohibiting these less serious offenses promote pre-

dictability and orderliness for citizens. Swigert (1984) notes that society objects to the

public nature of the behaviors associated with those who find themselves charged with