Re-visiting the Concept of Mens Rea: Challenging the Common Approaches Employed under Islamic Jurisprudence and Statute Law

  •  Fatemeh Ahadi    


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.

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