Re-formulating the O bservable Inadequacy of the Prevalent Approaches Followed by Islamic Jurisprudence and Statute Law in Dealing with Mens Rea

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 v United 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 interpretation of the term ‘culpable’, as an independent constituent, shall vary according to the provisions of common sense and the contextual conditions.