Abstract
This study deals with the way in which the criminal system, in conformity with its function, lends its own criminal contours to the pre-legal concepts of intentionality and intention. The research question is formulated as follows: in what way does intentional conduct acquire criminal relevance, in such a manner that
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the said conduct may be characterised as criminally intentional or possibly negligent conduct? The study focuses on the semantic issue of the contents and on the methodological issue of the furnishing of proof of what may be termed the cardinal criminal particularisation of the pre-legal and everyday concept of intention: the mental element of intent. In a derivative sense some considerations are also devoted to what may be termed the ‘privative’ specification thereof: the criminal notion of negligence. In recent literature on the subject, the question is often raised, whether intent and negligence are primarily mental or primarily normative concepts. In this study, it is argued that they are mental and therefore normative concepts. They consist of particularisations of certain types of the pre-legal concept of intentionality. This implies that these criminal particularisations show bivalent characteristics in two directions. From a horizontal perspective, they are characterised by both a subject-intrinsic and a subject-extrinsic moment. They therefore do not possess an ‘object-like’ character; they are not states of affairs that may or may not be observable and that could be localised ‘somewhere’, like in the psyche of a subject or in the actions of a subject. From a vertical point of view, the concepts of intent and negligence in criminal law show both differences from and parallels to their pre-legal equivalents. The term ‘normativisation’ relates to an interpretative strategy, which by means of external indications makes statements on internal states of affairs. Hermeneutics provides the background, against which a description is presented of this interpretative method according to which the legal meanings ‘intentional’ or ‘negligent’ can be attributed to a certain act. The normativising method is described by means of a theory that may be indicated as the ‘text model’. According to this model, human actions share some essential qualities with texts, on the basis of which both actions and texts are ‘readable’. In the application of the normativising method, the underlying intention is conceptually narrowed down to that aspect of intentionality, that materialised in the action under consideration. In other words: the focus is on the ‘subject-extrinsic’ aspect of intentionality and the ‘subject-intrinsic’ aspect thereof is put in brackets. In this study, it is argued that the applicability of the normativising method within criminal law is restricted: a full eclipse of any reference to the acting subject is incompatible with the function of criminal law and the pertaining dialectic between the legality question and the legitimacy question. With reference to an old German doctrine, called Parallelwertung in der Laiensphäre, it is argued that the application of the normativising method is to be combined with an individualising interpretation movement that aims to connect to the ‘narrative identity’ of the accused.
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