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.     

HISTORY: A HANDMAID'S TALE

Historians are generally coy and diffident when it comes to engaging with the moral question despite it being a critical aspect of doing history. However, historians of empire cannot evade the moral question given the ethical dilemmas that imperialism posed for the men at its helm. To portray the colonists as hypocrites is too facile and cynical an explanation. So, what allowed the British colonists to manage the conscience that they indeed possessed? As Priya Satia boldly argues in Time's Monster: How History Makes History, the answer to this question resides in historicism, which became the new ethical idiom from the nineteenth century onward. It enabled the British colonists to assuage their conscience and made the empire an ethically thinkable reality. It helped whitewash colonial violence and generate public acceptance for colonization. The historians’ power lay in anointing history as providence and in using it to paper over the cracks in the British conscience. Being able to narrate was itself a manifestation of power. It was only after the Second World War that history renounced its pact with power and a reimagination of the historical idiom emerged. Various shades of South Asian and Caribbean anti-colonial leaders and postcolonial writers began to think beyond the historicist category of the empire. These efforts to dismantle the empire's historical narratives were paralleled by the writings of British historian E. P. Thompson, although he remained tied to the idea of history as progress. The moral question, however, remains unsettled. It endures for present-day historians because the teleserials, nostalgic period dramas, and “great men” histories continue to hold sway over the public mind, generate debates about the “benefits” of the empire, and feed Britain's anti-immigrant sentiments. Satia's book lies at the intersection of three sets of historiographies—histories of British political thought, postcolonial writings that highlight alternate conceptions of the past and the significance of orality, memory, and community history, and, lastly, histories of violence—all of which engage the moral question in some form or another.     

Die Seele auf der Bühne der Justiz. Die Entstehung der Kriminalpsychologie im 19. Jahrhundert und ihre interdisziplinäre Erforschung

The mind on the stage of justice: The formation of criminal psychology in the 19th century and its interdisciplinary research. – Criminal psychology emerges at the end of the 18th century as a new academic discipline in lectures and publications. It has recently been investigated by a considerable number of contributions from researchers of different academic backgrounds. In many respects criminal psychology can be seen as a predecessor of criminology. Its subject is the analysis of the origins of crime and its causes and determinants in the human mind. Criminal psychology embraced at that time philosophical, medical, legal and biological aspects. The latter increase in importance in the second half of the 19th century. The conditions of individual responsibility were generally codified in penal law, but had to be individually investigated in crucial cases through expertise in court. There a conflict emerged between medical experts and judges about their ability and competence to decide. At the end of the 19th century criminal psychology is used to fulfil the needs and interests of a criminal law which understands itself as increasingly utilitarian. Force and new instruments of treatment of offenders were legitimized by scientists who were very optimistic about their own epistemological abilities.