Abstract
In the present paper the traditional and customary perspectives on the concept of Mens Rea are challenged and a new definition of the same is put forward. The challenge is based on the idea that the concepts in criminal law need evolution in order to keep their function and practicality. Such an evolution demands such a condition wherein, while granting the characteristics of adaptability with the contextual conditions and principles of criminal law, the maintenance of the same is ensured. The mens rea is customarily defined as ‘culpable state of mind of the accused when committing an offence under criminal law and ‘rebellion intent’ under Islamic Jurisprudence. Both definitions of the concept have the capability to undergo evolution and, thus, a new definition of the same is envisaged herein as such that the mens rea constitutes ‘the culpable linkage of mind with the forbidden conduct’. Two changes are observable in the new definition compared with the existing one: first, the ‘state of mind’ is replaced with ‘linkage of mind’; second, the interpretation of the term ‘culpable’ as an independent constituent shall differ as per the common sense and the contextual conditions. The new definition grants dynamism to the concept and resolves the problems long associated with the definition of the mens rea under the criminal law.
Highlights
Noting the function of the criminal law in preserving the public order, re-visiting the concepts therein seems inevitable over the time
It might seem that such a perspective of the Islamic jurisprudence towards the ‘rebellion intent’ cannot be parallelized with the new definition provided in the present paper but, noting the point that the meaning envisaged for the intent under Islamic Jurisprudence is wanting in its basic meaning and not a definite state of mind and, referring to the point that the criminal fault means a wrong recognition, the rebellion intent and the fault can be parallelized with the new interpretation of the mens rea
The present paper holds that the reason for the challenges and doubts on the definition of the mens rea is the variable ‘state of the mind’, being the most necessary and perpetual factor, present therein and not the issue of culpability
Summary
Noting the function of the criminal law in preserving the public order, re-visiting the concepts therein seems inevitable over the time. The mentioned mindset seems to be in contradiction with the traditional definition of the concept of ‘mens rea’ in certain cases This contradiction is to be accentuated noting the crisis arising from the definition of criminal fault in the offences occurring in the areas such as driving, industry, medical services and so on. A revision of the concept is needed in order to, while resolving the contradiction of the same with the concept of criminal fault, ensure the maintenance and survival of the concept This is the coral motive of the present paper in providing a new definition of the mens rea. 4) a new frame for the mental element shall be put forward in the conclusion part of the paper
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