The emergence of mens rea in common law and civil law systems

Abstract EN

This research examines the historical development of mens rea—i.e.

the mental element involved in the commission of a crime—in common law and civil law systems.

The historical context for this topic is very important because it helps in understanding the essential role that mens rea plays in achieving justice.

Mens rea extensively changes the concept of criminal liability, aiding in the development and maturation of criminal liability applications in justice systems around the world.

In common-law countries, the concept of mens rea began as a religious principle and then migrated into the body of criminal law that was imposed by courts.

It was then developed by the opinion of judges who subsequently discussed what the law is, attached logic to the law, and thereby influenced future common-law doctrine.

In common-law jurisdictions, the substantive law is found in legislation and cases.

Case based law, which is found in the judicial decisions and the doctrine of precedent, forms the basis of the law where no legislation exists.

The doctrine of precedent provides flexibility and contributes to the growth and changing in the common law.

This gives judges more opportunity for reforming and developing mens rea, which explains the reason for having more than two types of mens rea, as in English criminal law.

In civil law systems, mens rea first appeared with the inception of Roman Law or The Law of The Twelve Tables; however, this form of mens rea is based on written codes, not judicial opinions.

In such cases, judges’ roles are limited to interpreting the law because they are bound by written provisions.

This is the main reason for having only two types of mens rea in most civil law countries, such as France, Egypt, and Qatar.