Re-formulating the Observable Inadequacy of the Prevalent Approaches Followed by Islamic Jurisprudence and Statute Law in Dealing with Mens Rea
| Author | Fatemeh Ahadi |
| Published date | 01 August 2016 |
| Date | 01 August 2016 |
| DOI | http://doi.org/10.1177/0022018316658172 |
| Subject Matter | Articles |
Article
Re-formulating the Observable
Inadequacy of the Prevalent
Approaches Followed by Islamic
Jurisprudence and Statute Law
in Dealing with Mens Rea
Fatemeh Ahadi
Islamic Azad University, Maragheh, Iran
Abstract
The present paper constitutes an attempt towards questioning the adequacy of the prevalent
approached employed by Islamic jurisprudence and statute law in dealing with mens rea and its
manifestations. It also provides a kind of reinterpretation of the concept since it attaches itself
to the perspective that the concepts employed in criminal law need evolution in order to
preserve their function and practicality; the conditions appertaining thereto necessitating
adaptability of the concepts with the contextual conditions as well as the principles of the
criminal law. Under criminal law, mens rea is referred to as ‘criminal intent or the state of mind
indicating culpability which is required by statute as an element of a crime’ (see, for example,
Staples vUnited States, 511 US 600 (1994)). Under Islamic jurisprudence it is defined as
‘rebellion intent’. These conceptualisations of the mens rea may be subject to evolution as well
as the other concepts. The present paper provides a reformulation of these definitions wherein
mens rea is considered to be ‘the culpable linkage of mind with the forbidden conduct’. Through
this reformulation the author replaces the ‘state’ with ‘linkage’ presupposing that the inter-
pretation of the term ‘culpable’, as an independent constituent, shall vary according to the
provisions of common sense and the contextual conditions.
Keywords
Mens Rea, Statute Law, Islamic Jurisprudence
Introduction
Noting the fact that one of the main functions of the criminal law is to preserve the public order, which is
a transient issue, the evolution of criminal law seems accordingly unavoidable. A deeper elaboration of
Corresponding author:
Fatemeh Ahadi, Assistant Professor, Department of Law, Maragheh Branch, Islamic Azad University, Maragheh, Iran.
E-mail: fatemeh.ahadi1394@gmail.com
The Journal of Criminal Law
2016, Vol. 80(4) 254–263
ªThe Author(s) 2016
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DOI: 10.1177/0022018316658172
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