(158.) Contrast Malum Prohibitum
, BLACK'S LAW DICTIONARY (10th
obvious immorality; a crime malum prohibitum
(94) Malum prohibitum
conduct is conduct that is illegal because
: "An act that is a crime merely because it is prohibited by statute, although the act itself is not necessarily immoral." Id.
(40) However, the violation of the Securities Act in Hentzner was a malum prohibitum
as malum prohibitum
crimes, (51) which occur when someone violates a
(40.) The force of this argument suggests that the case for lenity, and thus the argument for second-order clarity, is strongest for criminal statutes that create offenses that are malum prohibitum
, rather than malum in se.
Other crimes, however, are malum prohibitum
, meaning that they arise in situations of ambiguity, complexity, and lack of clear social awareness and consensus about condemnation.
The section 'Punishment and Its Justification' includes 'Why Punish the Deserving'?, an essay on malum prohibitum
and retributivism, and a discussion of the idea of 'already punished enough'.
I answer: every bit of it, including the distinction between jaywalking and murder, between littering and grand theft; in short, between malum prohibitum
and malum in se - that is, the things we've decided to regulate versus the things we all agree are evil.
They are offensive and abhorrent, not simply because they are malum prohibitum
but also because they are mala in se." (31)
The very idea that we have laws to punish acts that are malum en se (a violation of the natural law, such as murder) as well as malum prohibitum
(a violation of a law that the legislature simply passed) demonstrates that the Western legal tradition is familiar with the distinction.