When the Act is Punished... but the Imagination is Not Condemned
Under criminal law, mere intentions are not punishable, nor are thoughts harbored in the heart; the law does not adjudicate what transpires within minds, but rather what manifests in action.
Between the moment of conception and the moment of execution, the law adopts a precise stance, balancing individual freedom of thought against the need to protect society. It intervenes only when willpower leaves the realm of imagination and translates into executive conduct or serious preparation that creates a genuine threat to the legal right being protected.
Since individual liberty is among the highest rights guaranteed by legal systems, humans are permitted to converse with themselves as they wish and let their thoughts roam freely; for justice is not built on suspicion, but on actions. A person is not held accountable for what they conceal in their heart, but only for what they manifest outwardly.
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Modern legislation did not invent the principle of non-punishment for mere intention or thought; rather, it inherited it from a foundation established by Islamic Sharia. The Prophet Muhammad (peace be upon him) said: “Allah has forgiven my nation for what occurs to their minds or what they whisper to themselves, as long as they do not act upon it or speak of it.” From this established principle, modern criminal laws derived one of their most important tenets: it is accepted that there is no punishment for mere intention or thought, unless it is translated into an act criminalized by law.
The Kuwaiti Penal Code followed the same approach, explicitly affirming this principle in Article 45, which states: “Preparation for a crime is the commission of an act with the intent to execute it, if the perpetrator, for reasons beyond their control, is unable to complete the crime. Mere contemplation of the crime or determination to commit it does not constitute preparation.”
From this arises a subtle distinction between two scenarios that may be confused by some, despite their differing impacts on criminal liability: participation in preparation and preparation for participation. Participation in preparation presupposes that the criminal intent has transcended the realm of thought and entered the sphere of execution; for instance, when a person intervenes through incitement, agreement, or assistance, and the principal perpetrator begins to execute the crime, but external factors beyond their will prevent its completion. In such cases, the accomplice’s liability arises because they contributed to a criminal project that moved from mere idea to the field of execution.
Conversely, preparation for participation is a different scenario in which the criminal structure is not completed; here, an individual attempts to urge another to commit a crime, but the latter refuses, does not respond, or takes no step toward execution. Thus, the instigator’s will remains confined to intention, without any primary crime occurring to which liability could attach. Consequently, there is no punishment for mere preparation for participation, unless a specific provision dictates otherwise. Here, the precision of the criminal balance is evident: participation cannot exist independently of the principal crime; it derives its existence from it, stands when it stands, and ceases when it ceases. The law does not punish a will that found no path to reality, nor does it reach out to mere probability.
However, this principle is not absolute. The legislator may deem certain behaviors, even if they do not reach the threshold of preparation for a specific intended crime, to inherently pose a threat to society or its security. In such cases, specific provisions are enacted to establish independent criminal liability. Prominent examples include threats to commit a felony, or to cause harm to the person, property, or reputation, whether verbal or written, as per Article 173 of the Kuwaiti Penal Code. Other examples include certain forms of criminal conspiracy and specific types of incitement for which the legislator has provided special provisions, such as inciting members of the armed forces or police to mutiny, or public incitement to overthrow the system of government.
In addition to certain preparatory acts that constitute independent crimes, such as preparing materials intended for abortion with knowledge of their purpose, counterfeiting currency, manufacturing machines or tools designed to counterfeit or forge banknotes, and possessing or carrying weapons without a license.
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Thus, the scales of justice remain balanced on an unshakable certainty: the law does not intrude into the inner sanctums of the human soul, nor is a person held accountable for what they concealed in their heart or merely entertained in their thoughts. The law’s reach extends only when intention departs the realm of thought and translates into conduct that the law criminalizes. Between silence and action, the law stands as guardian of freedom and protector of society... and it is only there that the authority of the law begins.
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