Document Type



The Role of Penalties in Criminal Law, 37 Yale Law Journal 1048 (1928)


Around the concept "criminal intent," as used in the criminal
law, some of the most intensive battles of legalistic dialectics have
been waged.' Sometimes the term connotes "purposive" human
activity; at other times, it connotes the idea of "anticipation,"
not necessarily "desire." Again it is said that something other
than subjective anticipation comes within the ample bosom of
"intent." Even though it may be demonstrated beyond the
slightest possibility of doubt that the particular individual whose
"mind" is being probed by the mental fluoroscope of court and
jury did not anticipate the consequences for which society is
now seeking to charge him, he will nevertheless be held to have
"intended" them if a reasonable person in his position would
have anticipated them. In other words, the courts and juries
are supposed to project themselves, being reasonable men, into
the position of the defendant and then determine whether they
would have anticipated the consequences that did in fact occur.

Still, it is this concept "intent" which is said to constitute the
foundation of our criminal law structure. By means of determining
"its" meaning decisions are purported to be made. But the
cases suggest that the foundation is in a disintegrated state.

Date of Authorship for this Version



criminal intent, criminal law