Tuesday, March 8, 2011
Ferry de Jong (Utrecht University School of Law) has posted Theorizing Criminal Intent: A Methodological Account (Utrecht Law Review, Vol. 7, No. 1, pp. 1-33, January 2011) on SSRN. Here is the abstract:
This article examines the nature of the concept of criminal intent. The analysis of this concept is grounded on the recognition that the concept constitutes a juridical particularization of the very basic, pre-legal notion of intentionality. On the basis of a number of phenomenological and hermeneutical insights, it is concluded that intent is essentially a bivalent concept: it is characterized by both subject-intrinsic and subject-extrinsic properties. In this context, the intersubjective, interpretative accessibility of subjective intentional utterances is discussed ('normativisation'). Moreover, it is argued that the nature of criminal intent is characterized by a second bivalent feature: intent both parallels and deviates from its pre-legal counterpart. The distance between both concepts is explained in terms of a teleological account of the function of the criminal law system in society. In order to realize the different purposes that the criminal law system is taken to serve, it needs concepts whose semantic scope is outlined to a sufficient degree of precision. It is argued that the criminal law cannot afford for its concept of intent to become too alienated from the pre-legal concept of intention of which it forms a particularization. Criminal intent is to be regarded as a pivoting point between the doctrinal world of the criminal law and the intersubjective life-world. The principle of legality provides the key to answering the question of how the criminal law - if it is to live up to its claim to legitimate authority - should safeguard a sufficiently firm connection between its concept of intent and the everyday concept of intention.