Definition
In law, "malicious" describes an act done with malice — that is, with an improper, wrongful, or corrupt motive, or with a conscious disregard for the legal rights of others. The term carries a technical meaning broader than mere spite or hatred. An act may be legally malicious even when the actor bears no personal ill will toward the injured party, so long as it was done intentionally and without legal justification or excuse.
The core idea is not emotional hostility but wrongful intent: acting in knowing violation of another's rights, without legal cause, and with awareness that harm will result. Courts and treatises consistently draw this distinction. As Rapalje & Lawrence put it, malice "is not confined to personal spite against individuals, but consists in a conscious violation of the law to the prejudice of another."
Common Language
Modern common usage (Wiktionary): Intending to do harm; characterized by spite and malice.
Historical common usage (Webster's 1913): Indulging or exercising malice; harboring ill will or enmity. Proceeding from hatred or ill will; dictated by malice. With wicked or mischievous intentions or motives; wrongful and done intentionally without just cause or excuse.
The gap between common and legal usage is significant and persistent. In everyday speech, "malicious" almost always implies personal hatred, spite, or enmity toward a specific target. In law, an act can be malicious without any personal animus — what matters is that it was done intentionally, wrongfully, and without legal excuse. A researcher who reads "malicious" in a legal source through the lens of ordinary English will routinely misread the standard being applied.
Common Confusion
"Malicious" is frequently conflated with "willful" and "intentional," but these terms carry distinct weights in legal analysis. An act may be intentional (done on purpose) without being malicious (done with improper motive or without legal justification). "Willful" often signals deliberateness but does not always carry the further requirement of wrongful purpose that "malicious" implies. In older sources, "malicious" and "willful" appear in close proximity — sometimes as near-synonyms, sometimes as additive elements of a legal test — and the distinction must be read from context. Similarly, "malicious" should not be read as requiring proof of personal animosity; courts have repeatedly rejected that interpretation.
Recognized Forms
/SUBTYPES
Malicious abandonment: In criminal law, the desertion of a spouse without just cause. Recognized in early American criminal doctrine; largely displaced by modern domestic relations frameworks.
Malicious abuse of process: The misuse or misapplication of legal process to achieve a purpose not authorized by the writ; the perversion of a regularly issued process for an improper end. Distinguished from malicious prosecution in that abuse of process concerns the misuse of process after it has issued, not the wrongful initiation of proceedings.
Malicious prosecution: The institution of criminal or civil proceedings without probable cause and with malice, resulting in termination of those proceedings in the accused's favor. One of the central intentional torts, and the primary context in which "malicious" appears in modern tort doctrine.
Malicious mischief: A criminal offense involving the intentional destruction of or damage to another's property, done from ill will or a corrupt motive. Codified in various forms across American and English criminal law.
Why It Matters in Research
The term "malicious" is a moving target across time and context, and treating it as a fixed standard will produce research errors.
First, the threshold for what qualifies as "malicious" varies substantially by cause of action. In malicious prosecution, courts require both lack of probable cause and malice — and the malice element has been defined inconsistently, with some courts accepting inferred malice from want of probable cause alone, while others require independent proof of improper purpose. Researchers must not assume a uniform standard.
Second, older sources — including the historical dictionary entries in this corpus — use "malicious" interchangeably with "willful" and "wicked" in ways that do not map cleanly to modern doctrine. Black's first edition defines "malicious" simply as "evincing malice; done with malice and an evil design; willful," which collapses distinctions that later case law sharpened considerably.
Third, the compound forms matter. "Malicious abuse of process" and "malicious prosecution" are separate torts with separate elements, but historical sources sometimes conflate them or treat abuse of process as a subtype of prosecution. A researcher tracing the development of either tort must read carefully.
Fourth, in criminal law, "malicious" appears in statutory language for offenses like malicious mischief and malicious wounding, where its meaning is controlled by the specific statute and jurisdiction, not by general tort doctrine. Cross-applying definitions from tort to criminal sources, or vice versa, is a common and consequential error.
Historical Dictionary Support
The historical dictionaries in this corpus are consistent on the baseline: "malicious" means done with malice, with an evil design, willfully, and without legal right. Bouvier's captures the operational legal core concisely — "doing a wrongful act without legal right." Black's (both editions) emphasizes the evincing of malice and evil design.
Where the sources are less helpful is in distinguishing the term's application across different legal contexts. Rapalje & Lawrence offers the most analytically useful framing, drawing explicitly on judicial authority to clarify that malice is not synonymous with spite or hatred and extends to conscious violations of law to another's prejudice. This distinction — present in the historical sources but not always foregrounded — is the one that most often trips up modern researchers reading older material.
None of the historical dictionaries fully address the tort-by-tort variation in what "malicious" requires, nor the divergence between criminal and civil applications. For that, researchers must move to primary sources and treatises.
Jurisdictional Note
American states vary considerably in how they define the malice element across specific causes of action. In malicious prosecution claims particularly, some jurisdictions allow malice to be inferred from want of probable cause; others require it to be independently established. English doctrine, from which American law inherited this vocabulary, has followed a somewhat different trajectory. Researchers working with pre-twentieth-century sources should not assume that a court's statement of the malice standard in one jurisdiction applies elsewhere.
Encyclopedia Cross-Reference
Intentional Torts — Persons — Wrongful Arrest and Malicious Prosecution (The Law Mind Torts & Personal Injury Encyclopedia)