KESALAHAN DAN MENS REA DALAM PERTANGGUNGJAWABAN PIDANA ANALISIS KOMPARATIF LEGAL MAXIM ACTUS NON FACIT REUM NISI MENS SIT REA DAN KAIDAH HUKUM ISLAM AL-UMURU BI MAQASHIDIHA

Abstract

This article compares the common law maxim actus non facit reum nisi mens sit rea with the Islamic legal maxim al-umūru bi maqāṣidihā in the context of fault and criminal liability. The comparison is timely following the entry into force of Law Number 1 of 2023 (the National Criminal Code) on 2 January 2026, whose Article 36 codifies the principle of no punishment without fault through intention and negligence, while Aceh applies Qanun Number 6 of 2014 on Jinayat Law. This is qualitative normative legal research using statutory, conceptual, and functional comparative approaches, with data obtained through library research on primary and secondary legal materials. The findings show that the two maxims are not equivalent but converge on the principle that a culpable mental state is a prerequisite for just punishment. They meet on gradations of fault, the recognition of excusing conditions, and caution in proof. They differ in function: mens rea is a technical-procedural doctrine proven by inference from facts, whereas the maxim on intention is an ethical-teleological principle with both worldly and otherworldly dimensions. Equivalence between categories is also imprecise; for example, syibh al-'amd cannot simply be equated with negligence. The maxim on intention may serve as an evaluative benchmark for exceptions to the fault principle, such as strict liability and corporate liability, as a conceptual proposal that still requires testing.