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40 Am. J. Juris. 377 (1995)
Natural Law Mens Rea versus the Benthamite Tradition

handle is hein.journals/ajj40 and id is 381 raw text is: NATURAL LAW MENS REA VERSUS THE BENTHAMITE TRADITION KEVIN L. FLANNERY, S.J. I. INTRODUCTION Mens rea cannot be a completely vai:ie-free conception in natural law theory-or, at least, not in a natural law theory such as that presumed here.' As the present writer understands it, mens rea involves the intention a person has in doing something2 and/or the harm he is willing to tolerate in so doing. Since according to natural law theory both intention and (more obviously) harm involve a person's relationship to one or more of the basic human goods, mens rea can never be completely separated from morality.' It was this aspect of the traditional understanding of mens rea that Jeremy Bentham and several of his successors took exception to, as we shall see. Although in natural law mens rea will involve an intention that is truly rea (at fault), this-does not mean that a natural law understanding of mens rea cannot be objective in the sense that a jury that considers simply the facts connected with an alleged crime cannot determine whether mens rea is present. On the contrary, as I shall argue, it is those theories that have attempted to analyze mens rea by employing (supposedly) morally neutral concepts such as consequences and foresight of consequences, etc., that have failed historically to provide adequate objective guidelines for juries seeking to determine mens rea. 1. See John Finnis, Natural Law and Natural Rights (1980); Germain Grisez, The Way of the Lord Jesus; Christian Moral Principles (1983). For a more complete bibliography, see Joseph M. Boyle, Jr., John Finnis, and Germain Grisez, Practical Principles, Moral Truth and Ultimate Ends, 32 Am. J. Juris. 1987, pp. 148-51. 2. It is thus to be distinguished from the intention with which a person acts and also from his motives. See G.E.M. Anscombe, Intention (1957), pp. 17-20. As Anscombe says, a man's intention is what he aims at or chooses; his motive is what determines the aim of choice. 3. According to Finnis, there are seven basic human goods: life, knowledge, play, aesthetic experience, sociability (friendship), practical reasonableness, and religion (understood as the object of a concern about an order of things 'beyond' each and every man.) Natural Law and Natural Rights, pp. 86-90.

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