Crime can be divided into two distinct categories under the law, natural and legal crime. Natural crimes are crimes that are understood to be wrong and unacceptable in within society. Another term used to describe natural crime is mala in se. Mala in se is known to be offenses or acts that a person should inherently understand as wrong and should not partake in such actions. Legal crimes, on the other hand are acts or offenses that are in direct violation of a law. Mala prohibita is associated with legal crimes because society has deemed the action(s) as violations of laws against the best interests of society.
A fine line exists that separates mala in se and mala prohibita. It can seem, at times, that some natural crimes are better classified as legal crimes. As stated by Mark Davis (2006) “Legal scholars have used the terms mala prohibita and mala inse to draw the distinction between legally proscribed and morallyproscribed offenses” (17 (3) 270-289). MSN Encarta (2007) stated the following about crime:
Crimes are now usually classified as mala in se, which includes acts, such as murder, so offensive to morals as to be obviously criminal; and mala prohibita, which are violations of specific regulatory statutes, such as traffic violations, that ordinarily would not be punishable in the absence of statutory enactments prohibiting the commission of such acts (¶4).
The only major distinction between the two, mala in se and mala prohibita, is that one is in direct violation of laws and the other is morally or ethically a violation or evil.
A natural crime is that which is deemed harmful to others and or society but is not necessarily in violation of any established criminal law. Crimes that are considered to be natural crimes are rated in two categories under the Federal Bureau of Investigation’s crime index. Part one crimes are more serious while the part two offenses are less severe. Part one offenses of the FBI’s crime index would include criminal acts such as homicide or murder, forcible rape, aggravated assault, burglary, larceny or theft, arson, and or motor vehicle theft (Lehman, J. & Phelps, S., 2005). Even though these crimes are against the law the acts are considered to be natural crimes because these crimes are considered “…common-law crimes or those dangerous to life or limb” (Lehman, J. & Phelps, S., 2005, (2) ¶1). Part two offences under the FBI’s criminal index would also include criminal acts such as curfew violations, disorderly conduct, driving under the influence (DUI) violations, runaways, vandalism, weapon or drug offenses, counterfeiting or forgery, and sex offenses (Lehman, J. & Phelps, S., 2005).
Legal crime can be described as mala prohibita, which means that such crimes are “wrong because they are prohibited” (Mojo Law, 2008, ¶1).Crimes that are considered mala prohibita or legal crimes are actions such as drug abuse, gambling, violation of driving regulations or laws, trespassing, statutory rape, and or drug trafficking or distribution (Lehman, J. & Phelps, S., 2005). Such crimes are not, necessarily, naturally evil or wrong but has been deemed unacceptable acts by society; therefore, laws have been passed to prohibit such behaviors. Mala Prohibita crimes are put into effect by House of Congress when they pass bills into laws.
Although many of the mala in se crimes are considered to be morally wrong or evil in essence, I believe that some of the listed offenses should be classified as mala prohibita or legal crimes. Examples of natural crimes that in my opinion, should be categorized as legal crimes is DUI violations, weapon offenses, counterfeiting or forgery, and sex offenses because even though these crimes are understood to be morally or ethically wrong… laws have been passed to suppress such actions and the harm these acts have on others can be life threatening. These crimes not only pose a threat to the individual but to others as well and this would propose a threat to individual rights granted, under the United States Constitution. Drug trafficking and use of drugs is another mala in se offense listed under the FBI’s part two crime index, that should be listed as a legal crime because of the damage that drugs can have on an individual and others. Drugs can destroy lives and cause, an otherwise law abiding citizen, to engage in criminal activities just to obtain the drug that he or she may desire. Since each individual interoperates the law differently regulations, penalties, and classifications must be clear and concise in determining which crimes are mala in se and mala prohibita.
Mala prohibita crimes are considered as violations of laws or regulations set by the government and there are some crimes listed under mala prohibita that I believe, should be listed under mala in se. Gambling, as I do not agree with, is considered mala prohibita because legislators have passed law prohibiting persons from taking part in this act. While gambling can be harmful to a person or even become an addiction, I do not believe that this should be considered a legal crime. Morally and ethically a person should not gamble what he or she needs (e.g. money) to support their dependants or household but according to John Finnis (2007) “The legal enunciation of rules of criminal law (mostly “prohibitions”) has as its primary goal the elimination or at least discouraging of the specified kinds of action (or omission)” as stated in his Natural Law Theories publication (¶58).
Natural crimes, mala in se, and legal crimes, mala prohibita, and the lines dividing the two can appear blurred at times. “A fundamental categorization divides criminal acts
into two classes, mala in se and mala prohibita” (Totes.com, n.d.). Even though some natural crimes can appear to be in direct violation of law, these crimes are classified as mala in se because such crimes are considered to be understood by all to be inherently evil or wrong in context. Legal crimes can also appear to be morally or ethically wrong but these mala prohibita crimes are classified as such because these acts are in direct violation of a law(s). It can seem, at times, that some natural crimes should be classified as legal crimes. Crimes that are considered to be natural crimes are rated in two categories under the Federal Bureau of Investigation’s crime index, part one and part two offenses. Legal crime can be described under mala prohibita, which means that such crimes are “wrong because they are prohibited” (Mojo Law, 2008, ¶1). According to die.net (2008) the definition of mala in se is, “offenses which are such from their own nature, at common law, irrespective of statute” (¶2).
Reference
Davis, Mark S. (2006). Crimes Mala in Se: An Equity-Based Definition: Criminal Justice Policy Review, 17 (3) 270-289. Sage Publications, 2006. Retrieved February 15, 2008, form web site: http://cjp.sagepub.com/cgi/content/abstract/17/3/270
die.net (2008). Definition: mala in se. Retrieved February 15, 2008, form web site: http://dictionary.die.net/mala%20in%20se
Finnis, John (2007). Stanford Encyclopedia of Philosophy: Natural Law Theories. Retrieved February 15, 2008, form web site: http://plato.stanford.edu/entries/natural-law-theories/
Lehman, Jeffery & Phelps, Shirelle (2005). West’s Encyclopedia of American Law:Mala in Se (2) Gale Group, Inc., 2005. eNotes.com. 2006. Retrieved February 15, 2008, form web site: http://www.enotes.com/wests-law-encyclopedia/mala-se
Lehman, Jeffery & Phelps, Shirelle (2005). West’s Encyclopedia of American Law:Mala Prohibita (2) Gale Group, Inc., 2005. eNotes.com. 2006. Retrieved February 15, 2008, form web site: http://www.enotes.com/wests-law-encyclopedia/mala-prohibita
Mojo Law (2008). Criminal Law: Crimes Mala In Se – Crime Classification. Retrieved February 15, 2008, form web site: http://www.mojolaw.com/info/cl018
MSN Encarta (2007). Crime. Retrieved February 15, 2008, form web site: http://encarta.msn.com/encyclopedia_761559497/crime.html
Totes.com (n.d.). Definition of crime. Retrieved February 15, 2008, form web site: http://www.totse.com/en/politics/political_spew/crime.html
