— Also termed malum per se. Pl. mala in se. Cf. MALUM PROHIBITUM. — malum in se, adj.
“The basis for the distinction between mala in se and mala prohibita, between what one might call a crime and an offence — or between what one might call a felony and a misdemeanour, if one could modernize those terms so that the latter was given its natural meaning — is that crime means to the ordinary man something that is sinful or immoral, and an offence at worst a piece of misbehaviour.” Patrick Devlin, The Enforcement of Morals 33 (1968).
“The distinction between offenses mala in se and offenses mala prohibita was recognized at least as early as the fifteenth century. It has been criticized repeatedly. About a century and a half ago the distinction was said to be one ‘not founded upon any sound principle’ and which had ‘long since been exploded.’ [Quoting Bensley v. Bignold, 5 B. & A. 335, 341, 106 Eng. Rep. 1214, 1216 (1822); other citations omitted.] The Supreme Court, however, has shown that it is just as firmly entrenched today as it was in 1495.” Rollin M. Perkins & Ronald N. Boyce, Criminal Law 880 (3d ed. 1982).
