Introduction: A Trilogy of Papers on the Malum Prohibitum — Malum in Se Distinction in Criminal Law
Dialogue, Volume 55, Issue 01, pp. 1-7, March 2016
5 Pages Posted: 26 Jun 2016 Last revised: 30 Jun 2016
Date Written: March 31, 2016
Abstract
It has seemed to many legal scholars and philosophers of law that any plausible approach to justifying criminal prohibitions and criminal punishments will have difficulty justifying the inclusion of mala prohibita offences in penal law. To understand why, we must explain what we mean when we refer to conduct that is (merely) ‘malum prohibitum,’ and contrast it with its contrary, conduct that is malum in se. The distinction is most commonly drawn as follows: conduct mala in se is morally wrongful prior to and independently of law, whereas acts that are mala prohibita are not wrongful prior to and independently of law. Working just with this simple contrast, we can explain why so many theorists have thought that the use of mala prohibita offences (the adoption of criminal laws that prohibit and punish conduct that was not wrongful prior to its criminalization) is inherently suspect; such offences are suspect because they seem to condemn conduct that does not deserve condemnation (because it is not pre-legally morally wrongful), and to punish people for engaging in actions they had no pre-existing moral duties to avoid. Reflecting very briefly on how the ‘problem’ of mala prohibita criminal laws is characterized within a range of diverse theories of criminalization and punishment will illuminate why they have seemed to many to pose unique justificatory challenges.
Keywords: mala prohibita, mala in se, criminalization, philosophy of law
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