Mala Prohibita and Malum in Se Laws, Essay Example

The distinction between mala prohibita and malum in se laws intends to separate laws which are, in the case of the latter, recognized as clear moral transgressions, from those which bear what may be termed a more subjective character. For example, a malum in se law would address murder, whereas a malum prohibitum law may prohibit the consumption of alcohol. From this perspective, a fundamental debate within the philosophy of law is whether mala prohibita laws are in themselves necessary, to the extent that the acts which they determine to be punishable are not clear violations of some fundamental ethical principle.

This distinction, however, is not without its own ambiguity. For example, one may adopt the position of an ethical or moral relativism, which problematizes the clear distinction between mala prohibita and malum in se. In other words, can law truly define what is an ethical and unethical act in itself? The act of murder may be defended from the position of self-defense, which accordingly puts in doubt whether law can even be delineated according to these two categories. This has a clear effect on the debate regarding whether mala prohibita laws are necessary, since one may argue that in a fundamental sense every law is malum prohibitum, which is another way of saying that the law can never assume an absolute ethical authority regarding what is right or wrong.

From yet another position, however, the mala prohibita laws may seem entirely arbitrary. For example, to make alcohol illegal is not based on any fundamental ethical principle. It could be based on a fear that fundamental ethical principles will be transgressed, such that the drunk person may be more inclined to commit murder. However, this is a clear exaggeration, as every drunk person does not violate ethical law. In this regard, mala prohibita laws are questionable and perhaps even unnecessary to a legal system. Rather, the existence of such laws re-enforces the particular normativities of the legal and authoritative system that maintain them. Such laws, in other words, are merely symptoms of the hegemony of those who hold power. From an ethical perspective, accordingly, the presence of such laws within a legal system become entirely questionable.