Mens rea, the Achilles’ Heel of Criminal Law

This essay is based on a paper originally presented at ISSEI’s 15th International Conference, “What’s New in the New Europe?”, The University of Lodz, Poland, July 11–15, 2016.

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.

Keywords:

• Criminal law
• Athenian law
• criminal responsibility
• mens rea
• intent

Notes

This essay is based on a paper originally presented at ISSEI’s 15th International Conference, “What’s New in the New Europe?”, The University of Lodz, Poland, July 11–15, 2016.

1. See Makarewicz, Einführung, 358–440.

2. Ibid. Cf. MacCormack, “Fault and Causation,” and the literature mentioned there.

3. Todd, Shape of Athenian Law, 3–5.

4. Harris, Democracy and the Rule of Law, 404; cf. Griffith-Williams, “Violence in Court,” 90.

5. Cf. Dubber and Hörnle, Criminal Law, 223.

6. MPC §§210.1–210.4.

7. Cf. Article 9 of the Polish Criminal Code of June 6, 1997.

8. See Calhoun, Growth of Criminal Law; Cohen, “Crime, Punishment”; cf. Dubber and Hörnle, Criminal Law, 223.

9. [Aristotle], Athenian Constitution, 57.3.

10. Demosthenes, Against Evergus and Mnesibulus, 68–73; MacDowell, Athenian Homicide Law 8–32; Gagarin, “The Prosecution of Homicide in Athens,” 301–22.

11. IG. I³ 104, lines 10–20 (Republication of Draco’s homicide law).

12. Loomis, “Nature of Premeditation,” 90; MacDowell, Law in Classical Athens, 115; Gagarin, Drakon, 31–37; Sealey, “Athenian Courts for Homicide,” 277–28; Phillips, “Trauma ek Pronoias,” 85.

13. Stroud, Drakon’s Law on Homicide, 40; Cantarella, Studi sull’Omicidio, 97–99; Wallace, Areopagos Council, 98–99; Carawan, Rhetoric, 223–25; Pepe, “Osservazioni,” 69; Pepe, Phonos, 87–128; Pepe, “Some Remarks on Homicide,” 58–59.

14. LSJ s.v. νοέω, προ, προνοέω, πρόνοια.

15. ἕκων/ἑκούσιος and ἐκ προνοίας: Antiphon, Against the Stepmother, 1.5, 27; Demosthenes, Against Aristocrates, 23.50; ἄκων/ἀκούσιος and ἐκ προνοίας: Demosthenes, Against Meidias, 21.43; Demosthenes, Against Aristocrates, 23.45, 50.

16. Antiphon, Against the Stepmother; First Tetralogy; Third Tetralogy; and On the Murder of Herodes; Lysias, Concerning the Killing of Eratosthenes, Against Eratosthenes and Against Agoratus.

17. Such as Antiphon, Second Tetralogy and On the Chorus Boy.

18. Thus: Gagarin, “Self-defense,” 111.

19. Thus: Gernet, Recherches, 355; Wallace, Areopagos Council, 100.

20. Thus: MacDowell, Athenian Homicide Law, 75; Carawan, Rhetoric, 164; Pepe, “Osservazioni,” 89–90.

21. Cf. Loomis, “Nature of Premeditation,” 93.

22. Aristotle, Magna Moralia 1188b 29–38; MacDowell, Athenian Homicide Law, 46.

23. Cf. Demosthenes 54.18 (quoted below); Todd, Commentary, 282–83.

24. Thus: Hansen, “Graphe or dike traumatos?” 307; Carey, Lysias, 109; Todd, Shape of Athenian Law, 269; Todd, Commentary, 283; Pepe, Phonos, 116–67.

25. Demosthenes, Against Conon, 54.18.

26. MacDowell, Law in Classical Athens, 123–24.

27. Phillips, “Trauma ek pronoias,” 74–105.

28. Demosthenes, Against Conon, 54.25.

29. On “open texture,” see Hart, 121–30; on open texture in Athenian law, see Harris, The Rule of Law in Action, 174–245; on pronoia as a case of open texture, see ibid., 183–89.

30. Griffith-Williams, “Violence in Court,” 92; cf. Phillips, “Trauma ek pronoias,” 84–85.

31. Todd, Commentary, 357; cf. Phillips, Law of Ancient Athens, 89–90.

32. Cf. Todd, Commentary, 372–73; and for a different interpretation of these passages, see Carey, Lysias, 105–6.

33. See Phillips, “Trauma ek pronoias,” 84.

34. West’s Encyclopedia of American Law.

35. State v. Green, 861 P.2d 954, 961. Cf. Decision of the Supreme Court of Poland, 25.07.2005, V KK 87/05; Decision of the Supreme Court of Poland, 22.12.2006, II KK 92/06; Judgment of the Court of Appeal in Cracow, 8.12.2009, II Aka 216/09.

36. Carawan, Rhetoric, 20.

37. Ross, Advocacy, 117.

38. Cf. Antiphon, On the Murder of Herodes, 5.87; see also Antiphon, On the Chorus Boy, 6.3; see also Carawan, Rhetoric, 20–21.

39. Bleckley, Logan E., Warren v. Purtell, 63 Georgia Reports 428, 430 (1879).