Malum prohibitum

Malum prohibitum

read also Mistake of Law in Mala Prohibita Crimes


Malum prohibitum (plural mala prohibita, literal translation: "wrong [as or because] prohibited") 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 that is evil in and of itself, or malum in se.

Conduct that is so clearly violative of society's standards for allowable conduct that it is illegal 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:[3]

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. State v. Horton, 139 N.C. 588, 51 S.E. 945, 946 (1905).

"Public welfare offenses" are a subset of malum prohibitum offenses as they are typically regulatory in nature and often "'result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize.'" Bash, 130 Wn.2d at 607 (quoting Morissette v. United States, 342 U.S. 246, 255–56, 72 S. Ct. 240, 96 L. Ed. 288 (1952)); see also State v. Carty, 27 Wn. App. 715, 717, 620 P.2d 137 (1980).

Examples of crimes and torts that might be considered as malum prohibitum—but not malum in se—include:


Case law:

“The old distinction between mala prohibita and mala in se has broken down because many acts which have been made punishable as an offense by statutes do not involve any moral turpitude: “In particular, nothing in the moral character of an act or omission can distinguish it from a civil wrong or make it a criminal offense. There are, for example, many breaches of statutory regulations and bye-laws which, because they are punishable in criminal proceedings, must be classed as criminal offenses though they do not involve the slightest moral blame, as, for example, ‘the failure to have a proper light on a bicycle.”

Sunil Kumar Ghosh vs State Of West Bengal And Ors.: AIR 1970 Cal 384


‘mala in se, is an offense against, nature or contrary to the moral sense of the community, and mala prohibita, is an offense against laws which enjoin positive duties and forbid things which are not mala in se, to which is annexed a penalty for non-compliance.’

Tamizhazhagan And Anr. V. The Revenue Divisional Officer, (1966) SCeJ 001 (Mad.)


“Where parties are concerned in illegal agreements or other transactions, whether they are mala prohibita or mala in se, courts of equity following the rule of law as to participators in a common crime will not interpose to grant any relief, acting upon the known maxim in pari delicto potior est conditio defendentis et possidentis. The old cases often gave relief, both at law and in equity, where the party would otherwise derive advantage from his inequity. But the modern doctrine has adopted a more severely just and probably politic and moral rule, which is, to leave the parties where it finds them giving no relief and no countenance to claims of this sort.”

Naraynamma And Anr v. Govindappa And Ors., 1999 SCeJ 3001