The Relativistic Theory of Coincidence between Mens Rea and Actus Reus in Islamic and English Law (original) (raw)

East African Scholars Journal of Education, Humanities and Literature

Coincidence between mens rea and actus reus is a main principle of criminal law. The accepted wisdom, in all legal systems, is that the mere existence of mens rea and actus reus does not suffice to bring into its legal identity any crime requiring both elements, so their simultaneity is also necessary. The necessity of coincidence between the two in its exact literal meaning of the word has been justified by different reasoning which has led to an "absolute" account of the principle. Although the acceptance of this account has a number of positive effects, it could cause negative effects and injustice too. The objective of this study is to explicate a different reading of the principle, by which the criminal justice system can be freed from the trap of such negative effects. Our rival reading of the principle may be termed the "Relative" as opposed to the "Absolute or traditional" approach. While the latter i.e. the "traditional or absolute" account of the principle reads that the coincidence of elements in relation to all crimes requiring both material and spiritual elements must absolutely exist at point (1) of the time axis of the process of commission, the former, i.e. our "Relative" account of coincidence reads that coincidence between elements may occur at any point, for instance () of the time axis, for a better understanding of which a graph of different states of relativity of coincidence is prepared. As it is argued here, the "traditional or absolute" approach to the concept of coincidence creates a number of obstacles for the justice system to serve justice for all. Using our new approach however, it is argued here, would minimize the injustice caused by the traditional approach of coincidence as much as possible, serves the victim's interest and public order much more comprehensively. Keywords: Coincidence of mens rea and actus reus, Absolute account, Relative approach, The rule of "Al-emtena", The rule of "a single sequence of events".