文章基本信息

标题：Theorizing criminal intent: a methodological account
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作者：Ferry de Jong
期刊名称：Utrecht Law Review
电子版ISSN：1871-515X
出版年度：2011
卷号：7
期号：1
页码：1-33
DOI：10.18352/ulr.144
出版社：Igitur, Utrecht Publishing and Archiving Services
摘要：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.
关键词：criminal intent; intentionality; the principle of legality; subjectivity; normativisation of intention; hermeneutics