What is Mala Prohibita?
Mala prohibita is a legal term that means "wrong because it is prohibited" in its original Latin form. The modern understanding of this term is applied to laws created to reflect a society's morality. These laws control actions that may not be considered crimes by other societies. Generally, these are not crimes to person or property, but things like drug use, copyright infringement, indecent exposure, government criticism and others. What acts are considered mala prohibita often helps explain where a country's philosophical beliefs lie.
Mala prohibita crimes are derived from the common law legal system, which is based on societal customs and appropriate behavior. At one time these violations were taken very seriously by courts and carried severe penalties, but are considered minor offenses in modern society. Due to this standing, most crimes that fall under the mala prohibita classification do not carry stiff penalties for violation.
Most judicial systems classify crimes against person and property, like murder and theft, as serious penalties. A mala prohibita violation is normally seen as a victimless crime or a crime that only harms the offender. An example of a victimless crime that has received a great deal of attention is copyright violation regarding illegal mp3s. Consuming illegal drugs is an example of an act deemed criminal in many societies, but that doesn't harm anyone directly except the user. These types of offenses make these crimes a controversial subject because the illegality of many of these actions can often be interpreted as a personal opinion.
Much like the common law system it bases itself from, many mala prohibita laws change and evolve over time. The common law system in England and France over the last several hundred years evolved to reflect changes in society, much like an unlawful act considered mala prohibita. One example would be the United States' views on alcohol. Once legal, alcohol was prohibited for much the 1920s only to be declared legal again in the 1930s, reflecting changing attitudes on the use of liquor.
American prohibition showed the changing societal views through the country's laws. Mala prohibita crimes remain one way to better understand a society's moralities and beliefs. Depending on the conservativeness or the liberalness of these rules, a tone is set for how a society carries itself via the laws.
Mala prohibita crimes such as drug use, pornography, and prostitution have been regulated by most societies.
Select the one mala prohibita crime that you believe causes the most damage to society and in which you contrast it against the others. Why should the crime you selected be punished more severely than the others should? Defend your opinion.
The state has no standing in the laws. Demonstrable injury is a requirement for standing and the moving party must prove it to have standing.
Mala prohibita is a very old legal concept. I had first heard about it when we were studying about Aristotle. I think it emerged with law itself, which is called positive law more specifically.
Some acts are mala prohibita and some mala in se, but there are acts which can be both like stealing. Theft is immoral but it is also against the law.
It is not really thought of this way now. But during Aristotle's time when politics and philosophy was always studied together, there was also a thought that an act that is mala prohibita is also immoral. This thought emerged when government was seen as the just authority that everyone had to obey for the welfare of all society. So in that sense, they thought that an act that goes against that authority, would also be immoral. Interesting isn't it?
@anamur-- Mala in se is an act that is wrong, not just because there is a law that prohibits it, but because the intent is wrong morally and socially.
In mala prohibita, intent is not important. It is simply wrong because it is illegal by law.
For example, rape is a mala in se. It is an act that is morally wrong whether or not there is a law that prohibits it.
Jay walking or driving on the left side are not inherently wrong in themselves, they are wrong because there are laws that prohibit them. So they are mala prohibita.
Does this help?
"Mala in se" is always mentioned along with mala prohibita. What is the difference? How do we know whether something is mala prohibita and not mala in se?
Mala Prohibita laws are unconstitutional in that there is no damaged party, or record of injury to anyone. The fines imposed are the forceful taking of ones labor, its government compelling you to specific performance, or compelling you to labor for others against your will. This is prohibited by Federal peonage laws 42 U.S.C. § 1994 punishable under 18 U.S.C. 1581.including the U.S. Constitution 13th Amendment involuntary servitude.
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