Where does malice collide?

In the law of homicide, malice aforethought is the guilty state of mind that marks murder off from lesser killings: it is satisfied by an intent to kill, an intent to cause grievous bodily harm, or a reckless indifference to a known and serious risk to life. Perkins traced the phrase in his 1934 A Re-Examination of Malice Aforethought, showing that this legal label had drifted far from its plain words and gathered several distinct mental states under one name. The referent is a technical element of a criminal charge, a term of art that expressly does not require spite, hatred, or any ordinary ill will toward the victim, unlike the falsity standard used in defamation or the costly harm-seeking studied by economists.[1]

Unit

The mental element of a murder charge, present or absent for a given defendant

Recovery means

Not applicable

Measured by

Established at trial by inference from conduct and circumstances against the legal tests for intent or reckless indifference to life

In defamation law, actual malice is the heightened fault standard a public official or public figure must prove to win a libel or slander claim: the plaintiff has to show that the false statement was published either with knowledge that it was false or with reckless disregard for whether it was true. The United States Supreme Court set this constitutional rule in its 1964 decision New York Times Co. v. Sullivan, to protect robust criticism of public conduct. The referent is a proof requirement about a speaker's awareness of falsity, and despite the word it has nothing to do with hatred: a spiteful statement told in good-faith belief is not actual malice, while a coldly indifferent falsehood is, which sets it apart from both the homicide element and the economists' costly spite.[2]

Unit

A fault standard a defamation plaintiff must meet, met or unmet for a statement

Recovery means

Not applicable

Measured by

Proved by clear and convincing evidence of the speaker's knowledge of falsity or reckless disregard for the truth

In psychology and behavioral economics, malice in its plain meaning of spite is the willingness to harm another person even when doing so costs you as well: a spiteful actor pays a price to lower someone else's payoff and gains nothing material in return. Marcus, Zeigler-Hill, Mercer, and Norris built and validated a measure of this trait in their 2014 The psychology of spite and the measurement of spitefulness, and Herrmann, Thoni, and Gachter documented such costly harm-doing directly in economic games in their 2008 Antisocial punishment across societies. The referent is an ordinary human disposition to hurt at a cost to oneself, captured as behavior or as a trait, and unlike the two legal meanings it really is about ill will, which is exactly why it does not match either courtroom term of art.[3][4]

Unit

A choice or trait to reduce another's payoff at a cost to oneself

Recovery means

Not applicable

Measured by

Captured by self-report spitefulness scales and by costly punishment or money-burning choices in economic experiments