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.     

A Victorian Embarrassment: Consular Jurisdiction and the Evils of Extraterritoriality

In 1856, the Treaty of Paris nominally welcomed the Ottoman Empire into the Concert of Europe, but this exposed a deep fault line in international relations. Although the gesture implied full sovereign rights, it seemed incompatible with the extraterritorial privileges held by Europeans in Ottoman lands under the age-old capitulations. New commercial treaties complicated the issue by extending similar privileges to British subjects as far afield as China, Siam and Japan. Consular jurisdiction soon became the focus of controversy in Westminster as extraterritoriality featured prominently in local disputes following British commercial expansion across Asia, among them the Arrow incident that led to the Second Opium War. In Japan and other states, it would also become a key grievance in popular campaigns against ‘unequal treaties’ and the injustices of informal empire. This analysis shows how, even before such narratives of resistance emerged, there was already a seam of ambivalence in Victorian political discourse on the question of extraterritoriality. In the Foreign Office, it came as no surprise to be told of defects in these treaties, but it was the context of the existing debate, notably fresh initiatives to set up mixed courts, that framed the British response.     

Maritime territorialisation as performance of sovereignty and nationhood in the South China Sea

The South China Sea (SCS) is a conflict‐ridden international arena of rivalry between China, the USA, India, and the other ASEAN countries over sovereignty, resources and security. In this geopolitical clash China is the dominant force and Vietnam its main challenger. While most analysts assume that the various claims to the mostly uninhabited islands are motivated by the presence of submarine mineral resources, the conflicts evoke strong nationalist feelings in Vietnam and China, fuelled by narratives of the historical presence of fisheries and navies. By analysing the tension between complex territorial claims, new technologies and forms of knowledge applied by these states to delineate their material borders on the sea and vernacular notions of social space, this paper explores how sovereignty and nationality is enacted on a day‐to‐day basis. Thus, I argue that maritime territorialisation is a paradox of treating the sea as ‘land’ produced by the performance of a socially constructed image of the state geo‐body capitalising on strong nationalistic sentiments in China and Vietnam.     

A. V. Dicey and English constitutionalism

The jurist A. V. Dicey’s study of the Law of the Constitution (1885) has been since its publication the dominant analysis of the British constitution and the source of orthodoxy on such subjects as parliamentary sovereignty and the rule of law. This canonical status has obscured the originality of Dicey’s ideas in the history of legal and political thought. Dicey reworked the traditional idea of sovereignty into two separate concepts – legal and political sovereignty – in order to square the common law notion of the sovereignty of parliament with the democratic idea of the sovereignty of the people. He forged a new concept – ‘the rule of law’ – to explain the legal basis of liberty in common law countries in a manner that was both Benthamite and constitutionalist. Finally, he provided a democratic and anti-federalist rationale for maintaining the Union of Great Britain and Ireland. This majoritarian, centralist and utilitarian constitutionalism has been one of the most enduring products of Victorian scholarship. This article seeks to recover it in its original context and, in so doing, to show the value of reintegrating legal thought into the mainstream of modern British history and the history of political thought.     

The ICC pre-trial chamber decision on jurisdiction over the situation in Myanmar

The transfer and deportation of ethnically Rohingya people from Myanmar into Bangladesh is a crime against humanity demanding an international response. What role, however, should the International Criminal Court (ICC) play? On 6 September 2018 an ICC Pre-Trial Chamber ruled that the Court has jurisdiction to investigate and prosecute such crimes as they are completed on the territory of a State party, Bangladesh. Myanmar is not a party to ICC Statute and has invoked the principle that treaties do not bind third parties without their consent. The case put in this commentary is that while the Pre-Trial Chamber’s approach to the law was arguable as an interpretation of the ICC Statute, it was unwise as a matter of policy. The argument is threefold. First, the Pre-Trial Chamber’s ruling is as a matter of legal method only the first-move in a process of norm-creation and persuasion. Second, it does not follow that because territorial jurisdiction in international law includes ‘objective’ jurisdiction over transboundary acts completed on a State’s territory that such jurisdiction was delegated by member States to the ICC in all cases. Finally, it is argued that international criminal tribunals do not succeed when the cooperation of necessary territorial governments (here, Myanmar) is withheld. Proceeding in this case risks becoming a quagmire of the ICC’s own creation at a time when it can little afford further risks to its legitimacy.     

宋朝的配隶法与厢军中的配军

宋朝的配军制度,是建立在配隶法基础上的强制罪犯充军的集兵制度,是宋代兵制中于募兵制之外又一个值得注意的特点。配隶法自宋初实行以后,逐步成为一个内容繁杂、适用于各种犯罪的刑种。两宋时期的厢军是配军数量较多的军种,配军不仅集中分布在厢军的牢城营,而且在厢军其他重役军分和一般军分中都有较多分布。由于配隶法适用范围的泛化和枉法滥配现象的大量存在,宋朝牢城等配军军分的溢额成为一种常态,配军数量十分庞大。宋统治者之所以将罪犯配隶充军,很大程度上是为了直接控制一批能够服兵役和劳役、随时听候国家调遣的人力资源,配军的存在也因此具有了其自身的社会经济价值和军事价值。     

商鞅法哲学研究

法家学派在时间上有前期、后期之分,在地域上有齐法家和三晋法家之分。商鞅是前期法家名代表人物,其法学理论典型地体现于社会终极理想之中。他认为人类社会的历史可以划分为两大阶段：首先是法治化社会,以法治国,在社会高度法治化基础之上,人类有望进入其理想化阶段——道德自律社会。法的力量由中心退居边缘,伦理道德价值体系开始由边缘走向中心,道德价值体系成为人类社会最高原则。从“法治”到“德治”,这是商鞅法学理论的逻辑过程,也是商鞅法学理论的全部内涵。     

从流民法看都铎时期议会与王权的关系

都铎时期是英国从中世纪封建社会向近代资本主义社会过渡的历史大变革时期。英国虽确立了君主专制制度,但国王在政策上仍需要议会的支持,议会亦需要王权的保护。这种“互助”的关系也反映在流民立法上。当英国出现严重的流民问题时,议会颁布的一系列法令法规中充分体现了国王的意志。因此,无论是“血腥立法”还是“社会福利”立法,其根本目的都是解决社会危机,避免发生动乱,稳固统治,在这一点上议会与国土的利益是一致的,国王与议会的关系是对立统一的。     

经商与爱人--关于稻盛哲学的挑战性

稻盛和夫是日本京瓷集团公司的创始人。该公司“2001年3月的年营业额超过4兆日元(大约为2700亿元人民币)、税前利润达4500亿日元(大约为300亿元人民币)”。^[1](P3)是什么使稻盛和夫在经营上成就这一辉煌伟业的呢?这便是,由以“敬天爱人”的基本思想为核心构架而成的稻盛经营哲学;以及靠商业伦理道德成为赢家的超凡境界。