Mala in Se and Mala Prohibita & The Legal Making of a Criminal

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Mala in Se and Mala Prohibita & The Legal Making of a Criminal

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🟦 1. Introduction

Criminology studies the nature and causes of crime.
In understanding what counts as “crime,” scholars distinguish between Mala in se and Mala prohibita — two classic categories showing how society and law define criminal behaviour.
This also links with the idea of “The Legal Making of a Criminal”, meaning how the law itself defines and labels certain acts and people as criminal.

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🟦 2. Meaning of “Mala in Se”

• The term “Mala in se” is Latin for “wrong in itself.”
• These are acts that are inherently evil or immoral, regardless of what the law says.
• Even before modern laws, societies saw such acts as wrong.

🧩 Examples:

• Murder
• Theft
• Rape
• Assault

📘 Explanation:
These acts are considered universally wrong because they cause direct harm to others and violate basic moral or social values.
Even without a written law, these acts are condemned by human conscience and natural morality.

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🟦 3. Meaning of “Mala Prohibita”

• “Mala prohibita” means “wrong because prohibited.”
• These acts are not inherently immoral, but are considered crimes because law has declared them illegal.
• They depend entirely on social, political, or economic rules of a particular society or time.

🧩 Examples:

• Traffic rule violations
• Possession of banned goods
• Gambling
• Tax evasion
• Environmental law breaches

📘 Explanation:
These acts are wrong not because they are evil, but because the law says so.
If the law changes, these acts may stop being crimes (e.g., liquor prohibition lifted → drinking no longer a crime).

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🟦 4. Difference between Mala in Se and Mala Prohibita

Basis	Mala in Se	Mala Prohibita
Meaning	Wrong in itself	Wrong because prohibited by law
Nature	Morally and universally wrong	Legally wrong, depends on society’s law
Origin	Based on morality, religion, ethics	Based on legislation or social rules
Example	Murder, rape, theft	Traffic violations, tax offences
Permanence	Always criminal	May change with time or place

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🟦 5. The Legal Making of a Criminal

The concept of “legal making of a criminal” explains that crime is not only about the act itself, but how the law labels a person or behaviour as criminal.
It is not nature but legal definitions that turn a person into a criminal in society’s eyes.

📘 Key Idea:

“No act is a crime unless defined as such by law.” — Legal Positivism

This means a person becomes a criminal only because the law says so, not because of the moral character of the act.

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🟦 6. Scholarly Views

(i) Émile Durkheim (Sociological School):

• Crime is a social fact.
• Every society defines what is criminal based on its collective conscience (shared morality).
• Therefore, some acts may be crimes in one society but not in another.

(ii) Edwin Sutherland:

• Crime is learned behaviour.
• The label of being “criminal” comes from interaction with others and social learning.

(iii) Howard Becker (Labeling Theory):

• Crime is a social construction.
• A person becomes a “criminal” only when society labels him as one.
• “Deviance is not the act itself, but the reaction of others to that act.”

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🟦 7. Criticism

• The distinction between mala in se and mala prohibita is not always clear — some acts can be both (e.g., corruption may be legally and morally wrong).
• “Legal making of a criminal” can sometimes lead to unfair labeling, especially of marginalized groups.
• Overdependence on law ignores moral and ethical dimensions of human conduct.

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🟦 8. Importance for Criminology

• Helps understand why societies criminalize some acts and not others.
• Shows the social and political power behind law-making.
• Useful for reform — if crime is legally made, it can also be legally reformed.

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🟦 9. Conclusion

“Mala in se” and “Mala prohibita” show that crime is both moral and legal — some acts are evil by nature, others by law.
The legal making of a criminal reminds us that law shapes morality and society shapes law.
Hence, criminology does not just study criminals but also the process that defines crime itself.

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✅ Perfect for LLB Exam Answer Writing (14–16 marks)
Structure:

1. Introduction
2. Meaning of Mala in Se
3. Meaning of Mala Prohibita
4. Difference Table
5. Legal Making of Criminal
6. Scholars’ Views
7. Criticism
8. Importance
9. Conclusion

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