Malum prohibitum (plural mala prohibita) 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 (plural mala in se).
Conduct that is so clearly violative of society’s standards for allowable conduct that it is illegal under English common law is usually regarded as malum in se. An offense that is malum prohibitum may not appear on the face to directly violate moral standards. The distinction between these two cases is discussed in State of Washington v. Thaddius X. Anderson:
Criminal offenses can be broken down into two general categories malum in se and malum prohibitum. The distinction between malum in se and malum prohibitum offenses is best characterized as follows: a malum in se offense is “naturally evil as adjudged by the sense of a civilized community,” whereas a malum prohibitum offense is wrong only because a statute makes it so.
Check out Wikipedia’s list of mala prohibita offences and you’ll recognise many, perhaps most, as classic victimless crimes. Of course, all laws prohibiting victimless crimes now on our statute books should be repealed. As a libertarian, writing for a (mostly) libertarian audience, I take that as a given.
What concerns me in this post is not that victimless crimes are on our statute books, it’s the sheer number of mala prohibita offences on our statute books. It’s a number that keeps getting bigger and bigger.
Why is the number of such offences a concern? Because, as honest lawyer Scott DeSalvo points out
More and more things are being criminalized, so the number of otherwise law-abiding citizens who are technically guilty of a malum prohibitum crime rises.
This has the effect of causing everyone to be technically illegal, and thus in fear of a rightful imprisonment and seizure of property for what amounts to perfectly acceptable conduct. This shuts everyone up—no one wants to protest wrongdoing
We live in a society that I am sure all … can agree features too many malum prohibitum crimes (crimes that aren’t like murder, which are bad in themselves, but illegal because a politician said so). Witness the MASSIVE numbers of new such laws—seatbelts, helmets, cellphone use, smoking bans, foie gras bans, etc. that have been passed recently. And also consider innocuous use of marijuana at home—illegal, but not hurting anyone. Congratulations, we are all criminals in a society with too many laws that aren’t sensical or necessary. Now that we are all technically criminals, the government can snoop on us, right? Give me any person, let me snoop through their stuff—I promise, I’ll find some technical violation of some law.
So, you can see, we are on the way [to a totalitarian dictatorship.]
It’s time to call a moratorium on new legislation. Whoever’s driving the ban wagon, for pity’s sake, hit the brakes!