Mens rea,the Achilles’ Heel of Criminal Law

Abstract

The evolution of criminal law in Western legal systems is often portrayed as a path leading from objective to subjective notions of criminal responsibility. By examining the historical development of the notions of subjective responsibility, this article suggests that the function of a wrongdoer’s subjective mental state, in both its substantive and procedural aspect, as an element in the process of attributing criminal responsibility, remains much the same today as it was in antiquity. This is indicated by what subjectivity, as an essential condition of culpability (actus non facit reum nisi mens sit rea), is said to imply: the distinction between intentional and unintentional acts. Although the notions of intent and malice aforethought are attested to in various sources on ancient Athenian law, there are several kinds of cases in which the role played by these aspects—traditionally referred to as mens rea (“guilty mind”)—remain unsolved in contemporary jurisprudence and legal practice. Yet despite the difficulties of establishing facts in particularly complex criminal cases, setting the boundary between “intentional” and “unintentional” remains crucially important in determining criminal responsibility and thus in distinguishing the “licit” from the “illicit,” which is the very foundation of the rule of law.     

The Societal Construction of a Criminal as Cultural Hero: The Case of “The Brinks Truck Theft”

This study examines the identification with, and encouragement and admiration of, a celebrated thief among the Internet audience of a popular Israeli web site. A content analysis of audience responses highlights the carnival atmosphere that emerged in Israel as the story unfolded of the exploits, arrest and punishment of this new criminal folk hero, a “trickster” who toppled the social order. Astonishingly, the public mood, as manifest in the online message boards, is mostly supportive of the crime and its perpetrator, with very few condemnations.     

The Obscured Story of the International Criminal Police Commission,Harry Söderman,and the Forgotten Context of Antiziganism

The Interpol predecessor, the International Criminal Police Commission (ICPC), gradually came under the control of the Nazi Regime. Besides the task of combatting ‘ordinary criminality’, it, since 1934, had ‘combatting of the Gypsy plague’ on its agenda. The Swedish contacts were handled independently by the head of the Swedish forensic institute (SKA), Harry Söderman, who had good contacts with the ICPC presidents Heydrich and Nebe. This essay discusses, from a Swedish perspective but also with an international comparative view, critical and apologetic discourses on the ICPC Nazification and antiziganism. It focuses on available ICPC files at Riksarkivet and their archival surroundings, which lead to the Sandler Commission’s investigation of police collaboration against the Scandinavian sabotage and resistance organization Wollweber. A main conclusion is that the informal network character of the ICPC and its lack of transparency discouraged critical reflections on this Nazification, and, to this day, obstructed a break with antiziganistic police traditions. In contrast to the independent inquiry commissions of Switzerland and Norway, which discuss the context of antiziganism and the ICPC, the selective governmental initiatives in Sweden have until now neglected the topic. The essay also discusses the problematic ICPC source material situation.     

Exile in a Land of Exiles: The Early History of Criminal Transportation Law in New South Wales, 1788–1809

This article considers the peculiar application of English criminal transportation law in the ‘convict colony’ of New South Wales during its foundation years. It demonstrates, first, that transportation was not intended to be within the sentencing jurisdiction of the New South Wales Court, but that it was adopted and practised nonetheless, with confused and incongruous results. In particular, substantial challenges emerged in applying colonial or local sentences to a population that was largely already under sentence of transportation. The result was a raft of innovations and inconsistencies that highlighted the legal and practical problems of performing exile in a land of exiles.     

Miss Moriarty,the Adventuress and the Crime Queen: The Rise of the Modern Female Criminal in Britain, 1918–1939

This article demonstrates the reconceptualisation of female criminality in interwar British popular culture. It argues that in fiction and the popular press, the period signalled the rise of the strategic female career criminal who challenged traditional gendered patterns of law-breaking, appropriated wider notions of fashionable modernity and transgressed social and geographic boundaries as poorer women embraced new opportunities for masquerade and used crime for upward social mobility. The article shows that the modern female criminal reflected broader shifts and changes in opportunities and roles for women, suggesting that she functions as a prism through which to explore wider debates and anxieties around femininity, 1918–1939.     

The Future of International Criminal Evidence in New Wars? The Evolution of the Commission for International Justice and Accountability (CIJA)

This article explores the intellectual formation of the Commission for International Justice and Accountability (CIJA). It illuminates how the development of the CIJA was an attempt by state and non-state actors to affect the course of international criminal justice in Syria and Iraq. First, this article argues that the CIJA was the result of four factors: the UK Foreign Office’s desire to support human rights activists in Syria; lessons learned from previous international criminal tribunals; attempts by non-state legal practitioners to invent new ways to overcome the gaps and limitations of the international criminal justice system; and the willingness of Syrian civil society to risk their lives and use the law to hold those responsible for mass atrocities to account. Second, the article argues that as non-state actors with a focus on evidence management, the CIJA may represent an innovative approach to investigating mass atrocities, particularly for activists and civil society actors who wish to play a role in evidence management in new wars. Lastly, it shows how the CIJA may work in parallel with international mechanisms, such as the International Criminal Court (ICC) and other inter-state actors, to collect evidence of war crimes, crimes against humanity, and genocide in new wars, particularly when the ICC is unable to do so. This study combines qualitative research with empirical analysis and draws on a range of primary and secondary sources, including a number of interviews conducted with CIJA personnel, former ICC practitioners, and other practitioners in international criminal law.     

Bringing Chinese Law in Line with Western Standards? Problematizing “Chinese” and “Western” in the Late Qing Debate over the New Criminal Code of Great Qing

This article examines the intense debates over the New Criminal Code of Great Qing (Da-Qing xin xinglü) in the National Assembly (Zizheng yuan) during the Qing empire’s New Policy Reform (1901–11). The focus is on the conflict between those who drafted and supported the new code and those who expressed reservations, especially over reform of the laws on filial piety and fornication. The issue of reconfiguring the family and social order through law was closely related to the overarching agenda of twentieth century legal reform in China—making an empire that “ruled through the principle of filial piety” into a modern nation-state that had direct relationships with its citizens. More importantly, an analysis of the late Qing debate over family law enables this article to problematize such concepts as “Chinese” and “Western” during this crucial moment of China’s empire-to-nation transformation. It showcases the paradox of China’s modern-era reforms—a contradiction between imposing Western-inspired order with a largely indigenous logic and maintaining existing sociopolitical order in the name of preserving national identity.