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7 Utrecht L. Rev. 1 (2011)

handle is hein.journals/utrecht7 and id is 1 raw text is: This article is published in a peer-reviewed section of the Utrecht Law Review Theorizing criminal intent: a methodological account Ferry de Jong* 1. Introduction 1.1. The argument The concept of intent constitutes one of the central concepts in substantive criminal law. Before the court can convict a person of a certain intent crime, it must have been declared proven that the offender committed the unlawful act under consideration intentionally, that is: knowingly and willingly. The concept has attracted much doctrinal attention in the Netherlands over the last few years. The doctrinal discussion has focused, among other things, on a rather difficult question pertaining to the nature of the concept: does the concept of intent designate an essentially 'psychic' or an essentially 'normative' phenomenon? While some theories hold that the concept of intent refers to the substance of the subjective and internal intention with which the offender has performed his action, other theories hold that the concept refers exclusively to the inter- subjective meaning which can be attributed to the action externally on the basis of social, constitutive norms. In my doctoral dissertation I defended the thesis according to which the concept of intent designates an essentially psychic or mental and therefore normative phenome- non.' In this article I want to, first of all, argue for this proposition on the nature of criminal intent. Secondly, I will discuss a number of normative implications that ensue from the rather abstract account of the nature of criminal intent for the way courts or other adjudicating institu- tions are to arrive at the conclusion that a defendant did or did not act intentionally. To this extent, this article also intends to contribute to an aspect of the wide discussion on the legitimacy or justifiability of criminal judgments. The argument to be discussed is roughly grounded on the recognition that intent is not to be understood as a substance or a 'thing', which could be localized somewhere, e.g. in the mind * Dr. F. de Jong (email: f.deiongl@uu.nl) is Assistant Professor at the Willem Pompe Institute of Criminal Law and Criminology, Utrecht University School of Law, Boothstraat 6, 3512 BW Utrecht, the Netherlands. I wish to thank the anonymous reviewer for the useful comments on an earlier version of this article. 1 F. de Jong, Daad-Schuld. Bijdrage aan een strafrechtelijke Handelingsleer met bijzondere aandacht voor de Normativering van het delicts- bestanddeel Opzet, 2009. The central research question of the study was formulated as follows: in what way does intentional human conduct acquire criminal relevance, in such a manner that the said conduct may be characterized as criminally intentional or possibly negligent conduct? URN:NBN:N L:Ul:10-1-101158 www.utrechtlawreview.orq Volume 7, Issue 1 (January) 2011 l1 m 1

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