This article has been written by Deepak Surana.
A legal maxim is a recognized principle or assertion of law which expresses a general truth or rule of conduct. Now, we are going to discuss a particular legal maxim i.e. cogitationis poenam nemo patitur. Now we break this sentence and try to understand its meaning.
We get the meaning i.e. “No one suffers punishment for mere intent or what he is thinking”. This maxim belongs to the subject of criminal jurisprudence which states that any state should not punish people for mere thinking which include- beliefs, desires, fantasies and unexecuted ideas. This manor is all but unquestioned. Legal experts often say that mere thoughts that often come to mind are unpunishable because they are harmless, meaningless and cannot be proved. Punishment for thought with respect to its inherent nature is unfair because we don’t have control over the thinking of our mind.
Theorists claim that criminalizing mere thought would unleash the worst sort of tyranny and oppression in the society that one has never seen before. What a person thinks at a particular moment, we cannot say nor we can punish him for what he is thinking about because he has not implemented that yet. That plan or criminal act of his is only in his mind and positive laws do not penalize people’s thought/mind, but against people’s behavior and if the thought is wrong according to law, it is not an object within the laws. If we criminalize every improper thought of a person then all the manhood would be criminal and most of there life would pass in trying and punishing or defending each other for offences that could be nearly impossible to prove in the court of law. Not only would it be extremely difficult to take out those who were guilty of harboring, but also not executing mere intentions to commit crimes. law is concerned with external conduct and morality with internal conduct
Most of the Latin maxims originated from the medieval era in the European states that used Latin as their legal language. During the time of ancient Rome’s legal system, they had a strong influence on the legal system of most western countries. After all, at one point of time the Romans have conquered most of Europe, the Middle East and North Africa. As the Roman empire slowly start decreasing and disappearing, the new orders in all these legal systems gradually started adapting their legal systems so we can find the same legal maxim in different legal languages with different names such as “pensiero non paga gabella” in Italian, in Spanish it is called “mysli sa wolna od cta” in Norwegian it is called “var tanke er fri”, in German it is called “gadenken sind zoll frei”, in France it is called “elles sont liberes les pensees”.
This slogan got famous from the court of King Philip II when marquis de posa, who is the most metaphorical figure in the opera, not least because the very essence of his presence and performance would have been possible in Philip II’s court. Posas mission is historically founded but not the man himself) demands address to king II as “sire, give freedom of thought” and ends his fiery speech. Listening to that, Friedrich Schiller, a drama director, used it in his drama called Don Karlos.
The slogan found immediate resonance and probably contribute to the fact that the poet was granted honorary citizenship of the French revolution a little later in 1792 by the revolutionary government. In the writings of prophet Isaiah (in the 8th century BC) he writes that God is outraged about the fact that he saw through a disobedient human who followed their thoughts on a path which is not good.
After this, the preachers respond to this in their judgements of freedom of thought by considering it harmful and wanting to bane it. The thinkers of olden times understood it differently”: liberae sunt nostrae cogitationes”, our thoughts are free and it was said in the year 52 BC in cicero’s speech named “pro milone”. At the beginning of the 3rd century AD, the roman lawyer ulpianus domitius assessed all thoughts as fundamentally exempted in his digests on the “cogitationis poenam nemo patitur”. Shakespeare once put “liberte de penser” (freedom of thought) it in the comedy “was ihr wollt” and in his last work “der sturm”
Now what we are discussing is not freedom of thought in general but, freedom of thought as a human right. The phrase freedom of thought may be found in Article 18 of document “Universal Declaration of Human Rights”; International Covenant on Civil and Political Rights Art. 18(1) or the international covenant on civil and political rights as well as in article 9 of the convention for the protection of human rights and fundamental freedoms (the European convention of human rights).
Discussion and analysis from a contemporary perspective
As I said earlier, when we are discussing the maxim “cogitationis poenam nemo patitur” the element of criminal jurisprudence comes into the picture. The Penal code of India, 1860, article number [S. 120-A] talks about criminal conspiracy which states that a criminal conspiracy put to action as much as a crime but not become punishable as long as it is generated only in the mind of the accused.
What is necessary is not thought even if those are criminal in nature, but an offence would be committed only when thoughts take a concrete shape of agreement to do or cause to be done an illegal act and then if nothing further is done, the agreement would give rise to a criminal conspiracy. Conspiracy is crosshatched in silence and for evidencing this offence, substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can only be proven when we have circumstantial evidence. Always remember the object of the law is always behavior, however, it is not the behavior that is targeted by the recipient of punishment but rather the subject of the owner of the behavior which is called as perpetrator. If this subject is not the owner of the behavior but the pre behavioral (a thought or an attitude), then this subject does not yet deserve to be punished.
The principle of cogitationis poenam nemo patitur contains a very human understanding that awareness is an important content in behaving legally, actions which are indicators of obedience within law are sufficiently demonstrated through observable action. Let’s take an example, if a person commits terror because he or she is cognitively teaching doctrines for misleading understandings, so that an affection is formed that justifies this terrorism however if the person only keeps the knowledge and attitude of siding with the understanding of terrorism over himself without any effort to sharing to others, both verbally and in writing, then the law cannot reach him.
Case law applying “cogitationis poenam nemo patitur” in Indian context
The Chatushrungi police station of Pune on Monday 28, 2020 arrest Anil Yashwante, a convict in a robbery case with two of his other subordinates on the ground of allegedly conspiring to kill an officer of narcotic corporate bureau (NCP) of India Baburao Chandere between December 22 and 23, 2020. The motive behind Yashwante’s conspiracy is not known as to why he had allegedly conspired to kill Chandere is not known till now. Senior inspector, Anil Shewale, the Chatushrungi police station in-charge, said on Tuesday that “We shall move the court seeking his custody from the jail for questioning him and establishing the identity of his accomplices”. Yashwante is undergoing 10-year imprisonment at the Yerawada central prison in a robbery case registered with the Shrirampur police in Ahmednagar district.
On citing preliminary investigations, Shewale said, “Yashwante stayed at Baner in 2013-14. He and Chandere knew each other. There is an old rivalry between them over political reasons.” He said, “Chandere’s suspicion that Yashwante had given supari (money) to kill him stems from seeing some suspicious persons monitoring his movement in three functions in his ward over the past 20 days. An elected representative of Balewadi Pashan ward, he learnt from his sources that Yashwante had allegedly conspired to eliminate him. He then decided to register an FIR.” According to the police, Chandere’s son had received a call from a person who told him that his father would be attacked by contract killers, hired by a convict lodged in Yerawada prison.
On one of the following days, a car was parked in front of Chandere’s house in which 2 persons were sitting in that car and both wearing masks. As Chandere approached the car, it hurriedly flew away, police said. Subsequently, an FIR was lodged under sections 120B, 115, 506(2) and 34 of the Indian Penal Code. Chandere said, “I don’t know who Yashwante is, and why he and his aides want to kill me.”
Now here, according to the legal maxim “cogitationis poenam nemo patitur”, although Yashwante plan to assassinate Mr. Baburao chandere but his idea of assassinating is not been implemented in this case so he can only be prosecuted on the ground of conspiring to murder Mr. Baburao chandere if it is some how proven in the court of law that anil Yashwante higher a contract killer to kill Baburao. Otherwise, he will not be prosecuted due to lack of evidence.
- Asseem shaikh, Convict booked on charge of conspiring to kill corporator, Times of India, (Dec 30 2020), (04:02 ISI) https://timesofindia.indiatimes.com/city/pune/convict-booked-on-charge-of-conspiring-to-kill-corporator/articleshow/80017534.cms
- WIESŁAW WACŁAWCZYK, Freedom of Thought and Its Relation to Freedom of Expression, Page No. 10, Scientific Publishing House Umk, 2019
- vol. 100, no. 1, Bublitz J Christoph, Freedom of Thought in the Age of Neuroscience: A Plea and a Proposal for the Renaissance of a Forgotten Fundamental Right, [pp. 1–25], Archives for Philosophy of Law and Social Philosophy, Accessed 28 Jan. 2021.
- Giorgio; Martin Del Vecchio, Thomas O., Translator. Philosophy of Law (8). [Pp.244- 258]
- The Monist, vol. 49, no. 3, 1965, Herbert Morris, PUNISHMENT FOR THOUGHTS, [pp. 342–376], Accessed 28 Jan. 2021.
- Criminal Conspiracy act, 1860, S-120A,120B, Indian Penal Code, 1860 (India)
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: