Oxford Journal of Legal Studies, Vol. 24, No. 1 (2004), pp.

99–127

Concepts of Intention in German

Criminal Law
GREG TAYLOR*

Abstract—In German criminal law, intention is the label used not only for cases of
knowledge and desire; it also includes cases of what the common law would call
recklessness. German criminal law calls its approximation of recklessness dolus even-
tualis. It is on that concept that the article concentrates. After a brief review of the
historical development of the German concept of intention, the author shows that
dolus eventualis consists of two components: the cognitive element, which (as in the
common law) considers the state of the accused’s knowledge that the oVence may
occur, and a volitional or dispositional element which is unknown to the common
law. The author concludes that the volitional or dispositional element is not plausible,
and that in any harmonization of concepts of intention in the criminal law of the
European countries such an element should not be adopted.

1. Introduction
Recently, the Federal Supreme Court of Germany, sitting in its criminal juris-
diction, had to deal with the following facts:1 the accused disliked foreigners,
and, in order to drive some Turkish people out of Germany, set their doner
kebab shop on Wre. In so doing, he succeeded not only in destroying the building
concerned, but also in injuring one K, who was in the shop at the time. Clearly
the accused was guilty of arson and, as he knew of K’s presence, some further
oVence in the nature of causing injury to K.
The accused was, however, also charged with the attempted homicide of K.2
The question accordingly arose whether he had the necessary intention to kill.

* Lecturer, Law School, Monash University, Melbourne. The author acknowledges the assistance of the University
of Adelaide’s Special Studies Leave Programme towards the research and writing of this article. Special thanks are
extended to the Max-Planck-Institut für ausländisches und internationales Strafrecht, Freiburg im Breisgau, Germany,
for two extremely productive months of research using its excellent library and with the assistance of its eYcient
and dedicated librarians, and to Professor N. NaYne and Ian Leader-Elliott for their valuable comments on the
draft.
1
NStZ-RR 2000, 165 (judgment of 22 February, 2000). As is usual in Germany, the case report does not
include the name of the accused or the victim, beyond the initial K for the latter. Accordingly, this case will be
referred to below as the Doner Shop Case.
2
In fact the charge was attempted murder, although, under § 211 of the Criminal Code, murder is applicable
only to homicide carried out in a particularly disfavoured manner or with particularly disfavoured goals. The disfa-
voured manner and goals that came into question here were the general danger constituted by the means chosen to
carry out the crime and racial hatred. If the Court concluded that the accused did indeed intend to kill K, the next
step would be for it to determine whether one or other of these elements of murder existed. If not, the accused
would be guilty only of attempted manslaughter.
Oxford Journal of Legal Studies, Vol. 24, No. 1,  Oxford University Press 2004; all rights reserved
100 Oxford Journal of Legal Studies VOL. 24

This was rejected by the trial Court, but on appeal against this decision the Federal
Supreme Court set aside the acquittal and remanded the case for renewed con-
sideration below. Not surprisingly, the Court seems to have entertained little
doubt about the objective side of any attempted homicide (whether any attempt
had gone far enough towards a completed oVence). It is the Court’s statements
about the subjective side which are worthy of further consideration. It held that
intention to kill would exist if the accused ‘considered the occurrence of the pros-
cribed result [i.e. the death of K] to be a not entirely distant possibility and, further,
[if] he approved of it or reconciled himself to it for the sake of attaining his
desired goal’—that is, the removal of the Turks from Germany. If, on the other
hand, the accused had ‘earnestly, and not merely in a vague way, relied on the
non-occurrence of a fatal result’,3 he was to be acquitted of attempted homicide
as he lacked the necessary intention to commit it.
This concept of intention looks entirely foreign to those versed in the common
law. Yet it comes from a jurisdiction that shares a Western-style culture with
much of the common-law world. Cultural diVerences between England and
Germany cannot explain the diVerence in legal concepts. And it is clearly neces-
sary, if legal harmonization within Europe should ever be seriously pursued,
that such diVerences in essential basic concepts should at least be understood,
and perhaps done away with. So, we might ask ourselves, where does this con-
cept of intention come from? What does it mean? Does it make sense? And if
legal harmonization really takes oV, could the German concept of intention—
which is shared to a greater or lesser degree by many European countries4
owing to the great inXuence which German criminal law scholarship continues
to exercise in Europe and beyond5—provide a basis for a common European
deWnition of intention? These are the questions that this article will endeavour
to answer.

3
At 166.
4
See generally Jescheck/Weigend, Lehrbuch des Strafrechts: Allgemeiner Teil (Berlin: Duncker & Humblot, 5th
edn, 1996) at 293, n 6; Perron, ‘Vorüberlegungen zu einer rechtsvergleichenden Untersuchung der Abgrenzung
von Vorsatz und Fahrlässigkeit’ in Eser (ed.), Festschrift für Haruo Nishihara zum 70. Geburtstag (Baden Baden:
Nomos, 1998) 142–44, 149; Schultz, ‘Eventualvorsatz, bedingter Vorsatz und bedingter Handlungswille’ in
Seebode (ed.), Festschrift für Günter Spendel zum 70. Geburtstag am 11. Juli 1992 (Berlin: Walter de Gruyter, 1992)
at 308f. In relation to the other German-speaking countries, see Germann ‘Vorsatzprobleme, dargestellt auf Grund
kritischer Analyse der neuern Judikatur des Schweizerischen Bundesgerichts’, SchwZStr 77 (1961) 345; Hochmayr
‘Die Vorsatzform bei notwendiger Nebenfolgen’, JBl 1998, 205, 216; Maurach/Zipf, Strafrecht Allgemeiner Teil Teilband
I: Grundlehren des Strafrechts und Aufbau der Straftat (Heidelberg: C.F. Müller, 8th edn, 1992) at 306; Schröder in
Jescheck/Ruß/Willms (eds), Leipziger Kommentar zum Strafgesetzbuch (Berlin: Walter de Gruyter, 10th edn, 1985)
§§ 90f zu § 16; Temme ‘Über den unbestimmten Dolus’, NArchCrimR (1854) 206, 230f. On Italy, see Morselli ‘Die
subjektiven Elemente der Straftat aus kriminologischer Sicht’, ZStW 107 (1995) 324, 337, 354f. On Poland, see
Buchala, ‘Der Dolus eventualis in der polnischen Strafrechtslehre und Rechtsprechung’ in Volgler et al. (eds), Festschrift
für Hans-Heinrich Jescheck zum 70. Geburtstag (Berlin: Duncker & Humblot, 1985). On Sweden, see Ross, Über den
Vorsatz: Studien zur dänischen, englischen, deutschen und schwedischen Lehre und Rechtsprechung (Baden Baden:
Nomos, 1979) at 125–45. On Spain, see the judgment of the Supreme Court reproduced and translated in NStZ
1994, 37, 38. South African law on dolus eventualis may be found in Synman, Criminal Law (Durban: Butterworths,
3rd edn, 1995) at 168–73. The concept of dolus eventualis also existed in the USSR: see Fletcher, Re-thinking Criminal
Law (Boston: Little, Brown & Co., 1978) at 325, 446f; at 440, n 5, the author comments that the French ‘have
failed to reWne their concept of intention’.
5
Fletcher, ‘Deutsche Strafrechtsdogmatik aus ausländischer Sicht’ in Eser/Hassemer/Burkhardt (eds), Die deuts-
che Strafrechtswissenschaft vor der Jahrhundertwende: Rückbesinnung und Ausblick (Munich: C.H. Beck, 2002) at 237.
SPRING 2004 Concepts of Intention in German Criminal Law 101
Before starting on this analysis, however, it should be stated where the German
concept of intention does not come from: the supposedly codiWed text of German
criminal law, the Code of 1871 (as amended since). Since its inception, it has
contained no deWnition of intention, following the example of its predecessor,
the Prussian Code of 1851.6 All attempts to have a deWnition of intention added
to the Code have failed, the legislator preferring to leave the question to the
Courts and scholars.7 The only qualiWcation which needs to be made to this
interesting perspective on the limits of codiWcation—which is only made more so
by the discovery that other major European countries’ Codes also contain no
deWnition of intention8—concerns § 16 of the Code,9 which by clear implication
makes knowledge of the factual circumstances surrounding an action, so far as
they are part of the deWnition of a crime, part of the requisite criminal inten-
tion.10 But the Code says nothing along the lines of the Court’s decision quoted
earlier.11 Rather, Courts, assisted by scholarly development of the law, have
come up with their own concept of intention that is applied in a more or less
consistent manner by the Courts—a procedure which reminds this author
strongly of, and which some German scholars have compared to, a system of
case law and precedent.12
Given the fact that the German deWnition of intention—although it has been
the subject of a vast quantity of debate in Germany, and is, as has been pointed
out, very inXuential in the rest of Europe—is scarcely known at all in the common-law

6
Beseler, Kommentar über das Strafgesetzbuch für die Preußischen Staaten und das Einführungsgesetz vom 14. April 1851
(Leipzig: Weidmann, 1851) at 36–42, 195; Großmann, Die Grenze von Vorsatz und Fahrlässigkeit: Ein neuer Beitrag
zu einer alten Frage (Hamburg: W. Gente, 1924) at 41–43; von Hippel, ‘Vorsatz, Fahrlässigkeit, Irrtum’ in von Birkmeyer
et al. (eds), Vergleichende Darstellung des deutschen und ausländischen Strafrechts, Band III (Berlin: Otto Liebmann,
1908) at 486 (hereafter referred to as ‘Vorsatz’); LöZer, Die Schuldformen des Strafrechts in vergleichend-historischer und
dogmatischer Darstellung, Band I (Leipzig: C.L. Hirschfeld, 1895) at 248f, 262 (hereafter referred to as Schuldformen).
7
‘Vorsatz’ at 487; Honig ‘Zur gesetzlichen Regelung des bedingten Vorsatzes’, GA (1973) 257, 257–59; Lucas,
Die subjektive Verschuldung im heutigen deutschen Strafrechte mit besonderer Berücksichtigung der Praxis (Berlin: R. von
Decker, 1883) at 3; Mannheim, ‘Mens Rea in German and English Criminal Law’ Part I (1935) 17 Jo Comp Leg &
Int Law (3rd) 82, 86 (hereafter referred to as Mannheim). Cf. on the Prussian Code Beseler, Kommentar at 41.
8
Morselli, ZStW 107, 324, 355 refers to France and Spain.
9
The Wrst sentence of the Wrst paragraph of § 16 states: ‘A person who, when committing an act, did not know of
a circumstance which is part of the statutory deWnition of the oVence acts unintentionally’ (author’s translation).
Mention should perhaps also be made of § 276 of the Civil Code, which contains a deWnition of negligence also
used in criminal law. However, it says nothing about the borderline between intention and negligence: von Hippel,
Die Grenze von Vorsatz und Fahrlässigkeit: eine dogmatische Studie (Leipzig: S. Hirzel, 1908) at 69.
10
Herzberg, ‘Der Vorsatz als ,Schuldform‘, als ,aliud‘ zur Fahrlässigkeit und als ,Wissen und Wollen?‘ in Canaris
et al., 50 Jahre Bundesgerichtshof: Festgabe aus der Wissenschaft (Munich: C.H. Beck, 2000) at 64, 71 (hereafter
referred to as Herzberg, ‘Der Vorsatz’); Jakobs, Strafrecht Allgemeiner Teil: Die Grundlagen und die Zurechnungslehre
(Berlin: Walter de Gruyter, 2nd edn, 1993) at 259; Jescheck/Weigend, Lehrbuch at 293; Lesch ‘Dolus directus,
indirectus und eventualis’, JA (1997) 802; Schild, ‘Der strafrechtliche Vorsatz zwischen psychischem Sachverhalt
und normativem Konstrukt’ in Jakob/Usteri/Weimar (eds), Psyche, Recht, Gesellschaft: Widmungsschrift für Manfred
Rehbinder (Bern: StümpXi, 1995) at p. 119; Schlehofer, Vorsatz und Tatabweichung: zur Auslegung der §§ 16 Abs. 1
Satz 1, 22 StGB (Cologne: Carl Heymann, 1996) at 19–21, 149–59.
11
Herzberg, ‘Der Vorsatz’ at 64f; Schuldformen at pp. 263f; Schumann ‘Zur Wiederbelebung des,voluntativen‘
Vorsatzelements durch den BGH: zugleich Anmerkung zu dem Urteil des BGH vom 15.11.1987, 3 StR 449/87’,
JZ (1989) 427, 430.
12
von Bar ‘Dolus eventualis?’, ZStW 18 (1898) 534, 559; Mannheim at 82, 85; Puppe ‘Anmerkung zu NStZ 1987,
362’, NStZ (1987) 363 (calling for the degree of certainty which would exist if there were a sensible set of principles devel-
oped by case law); Schroeder in Leipziger Kommentar, § 75 zu § 16; Schroeder, ‘Aufbau und Grenzen des VorsatzbegriVs’
in Festschrift für Wilhelm Sauer zu seinem 70. Geburtstag am 24. Juni 1949 (Berlin: Walter de Gruyter, 1949) at 226.
102 Oxford Journal of Legal Studies VOL. 24

world,13 it is necessary to provide a brief outline description of it as a basis for

further discussion. German law recognises only two concepts, namely intention
and negligence; there is no tertium quid, no recklessness.14 In this respect, German
law has remained true to its Roman inheritance.15 Within intention, there are
three sub-categories,16 which will be presented in more detail below: intention
‘properly’ so called, the perpetrator’s aim; the consequences which are not part
of the accused’s aim, but which he knows are inevitably going to be the result of
his actions; and, Wnally, what is called conditional intention, or, more frequently
and accurately, by its Latin name of dolus eventualis. It is this form of intention of
which the Court was speaking in the Doner Shop Case. As we saw there, it is cons-
tituted by knowledge of a possible (as distinct from inevitable) outcome of one’s
actions combined with a positive mental or emotional disposition towards it,
which the Court expressed as approval of or reconciling oneself to the possible
outcome. It is this third type of intention which is by far the most uncertain and
controversial and to which most attention will be devoted here. It has been
accepted by the Courts and—in some shape or form—almost unanimously by
the scholars17 for at least a century as a form of intention to be classed with the
other forms of intention. The only qualiWcation is that sometimes, in relation to
a particular oVence, the Code rules out this form of intention on an ad hoc basis
for the oVence concerned and requires the presence of one of the other two
forms of intention; but this happens fairly infrequently18 and does not aVect the
general concept of intention.

2. An Historical Overview
No attempt will be made here to provide a complete history of the German concept
of intention. However, the concept of intention, and in particular of dolus eventualis,
is quite clearly the outcome of many centuries of development, and it is useful to
know the outlines of this.
13
Mannheim at 82, 82f. As far as the author can discover, the only discussions of the German concept of intention
which have so far appeared in the English language are in Fletcher, loc. cit.; Gordon/Christie, The Criminal Law of
Scotland, Vol I (Edinburgh: W. Green, 3rd edn, 2000) at 275f; Mannheim, loc. cit.; Michaels ‘Acceptance: the
Missing Mental State’, 71 So Cal LR 953, 102V (1998). Some information may also be found in textbooks on
South African law such as that by Synman, op. cit.
14
Bekker, Theorie des heutigen Deutschen Strafrechts (Leipzig: S. Hirzel, 1859) at 458f; von Hippel, Grenze at 94;
von Hippel, ‘Vorsatz’ at 498; Schuldformen at pp. 262f.
15
Schuldformen at p. 146; SchaVstein, Die allgemeinen Lehren vom Verbrechen in ihrer Entwicklung durch die Wissenschaft
des gemeinen Strafrechts (Aalen: Scientia, 1986) at 95; Temme, NArchCrimR (1854) 206, 208. Bekker, Theorie at
386f, warns, however, that the Roman law knew no general concept of dolus.
16
See, e.g. Maurach/Zipf, Strafrecht at 308–15. It is interesting to note that there is apparently a debate going on
in Austria about whether there are four forms of intention there (TriVterer, Österreichisches Strafrecht Allgemeiner
Teil (Vienna: Springer, 2nd edn, 1994) at 171), although the view that there are four seems to me to rest on a mis-
understanding of the Criminal Code, which recognizes only three.
17
Lacmann ‘Die Abgrenzung der Schuldformen in der Rechtslehre und im Vorentwurf zu einem deutschen
Strafgesetzbuch’, ZStW 31 (1910) 142, 147; von Liszt, Lehrbuch des Deutschen Strafrechts (Berlin: Guttentag, 10th
edn, 1900) at 151, n 5; Schloß, Der Dolus eventualis im geltenden Strafrecht: insbesondere Stellungnahme zu den
Leugnern dieses BegriVes (Nuremberg: Benedikt Hilz, 1911) at 99.
18
See, e.g. Fletcher, Re-thinking Criminal Law at 444; Mannheim at 82, 87; Schmitz ‘Der dolus alternativus’,
ZStW 112 (2000) 301, 325.
SPRING 2004 Concepts of Intention in German Criminal Law 103
It seems to be generally accepted that the concept of intention in German criminal
law Wrst appeared as a result of the reception of Roman legal ideas in Germany via
the mediaeval Italian re-discovery of Roman law,19 and possibly assisted by canon
law.20 It is not an indigenous German development, the pre-Reception German
law having contented itself chieXy with ascribing criminal responsibility on the
basis of causation without considering the intention of the actor.21 The Imperial
Criminal Code of 1532 is said to have been the Wrst German statute to break with
this tradition under the inXuence of Roman ideas and to require some form of
intention (however vaguely deWned) as a prerequisite for criminal responsibility.22
For some time afterwards, however, the concept of intention continued to be
attenuated, criminal responsibility continued to be ascribed more or less on the
basis of simple causation of a result23 and the practical need to convict the guilty
despite various diYculties in proving intention prevailed over sound and coherent
doctrine.24 Thus, as late as Carpzov (1595–1666) intention in relation to homicide
was deWned to include ‘non solum is qui animum habet occidendi sed et qui
vulnerando causam praebet mortis’.25 J.S.F. von Böhmer (1704–1772) is said to
have been both the inventor of the phrase dolus eventualis (which is itself accordingly
not part of the Roman inheritance)26 and the Wrst scholar27 to insist in a thorough-
going, indeed revolutionary fashion28 on the need for a relationship between the
will of the perpetrator of a crime and the occurrence of the very crime that eventu-
ated rather than some lesser crime.29 He stated that ‘essentia dolosi homicidii in

19
Boldt, Johann Samuel Friedrich von Böhmer und die gemeinrechtliche Strafrechtswissenschaft (Berlin: Walter de
Gruyter, 1936) at 158; Jescheck/Weigend, Lehrbuch at 292; Lesch, JA (1997) 802; Schuldformen at pp. 144–46;
SchaVstein, Die allgemeinen Lehren at 94, 108; Sellert, Studien- und Quellenbuch zur Geschichte der deutschen Straf-
rechtspXege Band I (Aalen: Scientia, 1989) at 242. For discussions of the concept of dolus in ancient and Dark Ages
law, see Bleckmann, Strafrechtsdogmatik wissenschaftstheoretisch, soziologisch, historisch: das Beispiel des strafrechtlichen
Vorsatzes (Edition iuscrim, Freiburg im Breisgau, 2002) at 191–228; Schuldformen at pp. 44–58; Roßhirt ‘Einige
Bemerkungen zur Lehre vom dolus’ NArchCrimR 8 (1826) 369, 381–95. See more generally Bekker, Theorie at 379–
89; Jescheck/Weigend, Lehrbuch at 292; Schuldformen at pp. 43, 59–74; SchaVstein, Die allgemeinen Lehren at 146f.
20
Schuldformen at p. 139; Lucas, Die subjektive Verschuldung at 1; SchaVstein, Die allgemeinen Lehren at 110. But
see Bekker, Theorie at 390–92; Schloß, Der Dolus eventualis at 2.
21
Jescheck/Weigend, Lehrbuch at 292; Schuldformen at pp. 121, 123; Mannheim at 82, 84f.
22
Bekker, Theorie at 392; Jescheck/Weigend, Lehrbuch at 292; Schuldformen at p. 162; Mannheim at 82, 85;
SchaVstein, Die allgemeinen Lehren at 107, 147.
23
Boldt, Böhmer at 191–97; Lesch, JA (1997) 802, 803f; Mannheim at 236, 237–39; Puppe ‘Der Vorstellungsinhalt
des dolus eventualis’, ZStW 103 (1991) 1, 26 (noting that it was only the typical or objectively foreseeable results
which were attributed to the actor); Schuldformen at pp. 149–162, 166, 171; SchaVstein, Die allgemeinen Lehren at
117-121; ScheZer ‘J.S.F. von Böhmer (1704-1772) und der dolus eventualis—kann der große Professor der alten
Viadrina dem heutigen Strafrecht noch etwas geben?’, Jura 1995, 349, 351f; Sellert, Studien- und Quellenbuch at
249.
24
Bekker, Theorie at 399; SchaVstein, Die allgemeinen Lehren at 118; Sellert, Studien- und Quellenbuch at 251.
25
Cited in Bekker, Theorie at 398. Cf. Boldt, Böhmer at 200.
26
von Bar, ZStW 18, 534, 553; Boldt, Böhmer at 216; Großmann, Grenze at 37; Schuldformen at p. 172;
SchaVstein, Die allgemeinen Lehren at 107, 124, n 1; ScheZer, Jura 1995, 349, 352; Schloß, Der Dolus eventualis at
9; Sellert, Studien- und Quellenbuch at 252.
27
But, for a possible predecessor, see SchaVstein, Die allgemeinen Lehren at 122f. And, on the role of Pufendorf,
see Bleckmann, Strafrechtsdogmatik at 276f; Boldt, Böhmer at 151; Jescheck ‘The Doctrine of Mens Rea in German
Criminal Law—Its Historical Background and Present State’ (1975) 8 Comp & Int LJ So Af 112, 113.
28
Schroth, ‘Rechtsphilosophische und rechtskulturelle ReXexionen zum strafrechtlichen VorsatzbegriV’ in
Philipps/Wittmann (eds), Rechtsentstehung und Rechtskultur: Heinrich Scholler zum 60. Geburtstag (Heidelberg:
Decker & Müller, 1991) at 159f. Note, however, the qualiWcation in Boldt, Böhmer at 236.
29
Bleckmann, Strafrechtsdogmatik at 232; Boldt, Böhmer at 149f, 158, 241; SchaVstein, Die allgemeinen Lehren at
123; Sellert, Studien- und Quellenbuch at 252.
104 Oxford Journal of Legal Studies VOL. 24

voluntate procurandae mortis speciali consistat, haec vero vel pura, vel eventualis
esse possit’.30 He, however, considered foresight of possibility to be a suYcient
connexion between the perpetrator’s will and the ensuing criminal result,31
although, in the light of later developments, there can be seen in his work passages
which may be read as presaging a requirement of approving or being reconciled to
a possible result as is found in modern German law and was sketched above.32
Why, however, was Böhmer’s phrase picked up by later scholars, and an extra
requirement added to his foresight of possibility? As the eighteenth century pro-
gressed, concepts of intention were starting to receive greater attention, partly as
a result of general scholarly progress, partly as a result of the re-assessment of
traditional concepts during the Enlightenment33 and partly because the easy
means of ‘proving’ an accused’s intention via torture was gradually being closed
oV.34 Then, in the early 19th century, Feuerbach’s theory of deterrence was
developed; it further emphasized the (deterrent) eVect on the will of the actor in
the criminal law and the roots of crime in the actor’s (deterrable) will.35 The
requirement of an acceptance or approval of a result foreseen as possible—that
is, the volitional element in addition to a cognitive one—developed shortly after-
wards. What might be called the ‘full’ modern doctrine begins to make an
appearance in criminal law textbooks in the 1820s.36 Nevertheless, legislators in

30
Böhmer, Observationes selectae ad B. Carpovii practicam (Francofurti 1759), quoted in Sellert, Studien- und
Quellenbuch at 284.
31
Probability according to Boldt, Böhmer at 260. The statement in the text is based on Bleckmann, Strafrechts-
dogmatik at 232; SchaVstein, Die allgemeinen Lehren at 124–26; ScheZer, Jura 1995, 349, 354; Sellert, Studien- und
Quellenbuch at 252. Similar views may also be found shortly afterwards in the work of other authors, e.g. von
Almendingen (see his Untersuchungen über das kulpose Verbrechen (Gießen: Tasche und Müller, 1804) at 17f;
Engisch, Untersuchungen über Vorsatz und Fahrlässigkeit im Strafrecht (Berlin: Otto Liebmann, 1930) at 119; Frank
‘Vorstellung und Wille in der modernen Doluslehre’, ZStW 10 (1890) 169, 178–80; Lacmann, ZStW 31, 142;
Kleinschrod, Systematische Entwicklung der GrundbegriVe und Grundwahrheiten des peinlichen Rechts nach der Natur
der Sache und der positiven Gesetzgebung (Erlangen: Johann Jakob Palm, 3rd edn, 1805) at 49f; Stübel, System des
allgemeinen Peinlichen Rechts mit Anwendung auf die in Chursachsen geltenden Gesezze besonders zum Gebrauche für
academische Vorlesungen 1. Band (Leipzig: Sommer, 1795) at 74–78.
32
Boldt, Böhmer at 163f refers to Böhmer’s use of the ‘knowing and desiring’ formula current nowadays, but at
218f the author rejects the possible link with today’s volitional element; see also Schloß, Der Dolus eventualis at 9.
33
Großmann, Grenze at 55; SchaVstein, Die allgemeinen Lehren at 97, 128–31.
34
Bleckmann, Strafrechtsdogmatik at 310f (see also at 272); Grobe ‘Die allgemeine Vorsatzvermutung bei Feuer-
bach’, ZStW 78 (1966) 59, 60; SchaVstein, Die allgemeinen Lehren at 109.
35
Feuerbach, Revision der Grundsätze und GrundbegriVe des positiven peinlichen Rechts 2. Band (Chemnitz: Georg
Friedrich Tasche, 1800) at 44f; Feuerbach/Mittermaier, Lehrbuch des gemeinen in Deutschland gültigen peinlichen
Rechts (Gießen, 13th edn, 1840) at 104–06 (rejecting indirect intent in favour of culpa dolo determinata, which, as
the commentary points out, was never accepted as correct); Lesch, JA (1997) 802, 803. See further Bekker, Theorie
at 403; Engisch, Untersuchungen at 88.
36
Bekker, Theorie at 409–11; Großmann, Grenze at 39f; Krug, Über dolus und culpa und insbesondere über den
BegriV der unbestimmten Absicht (Leipzig: Bernhard Tauchnitz, 1854) at 70 (quoting in n 1 one of the Wrst authors
to present this concept of dolus eventualis); Schloß, Der Dolus eventualis at 14f; Stenglein, ‘Die Behandlung des
dolus eventualis im Strafrecht und Strafproceß’ in Schriftführer-Amt der Ständigen Deputation des Deutschen
Juristentages (ed.), Verhandlungen des 24. Deutschen Juristentages (Berlin: Guttentag, 1898), Bd I at 91f; Temme,
NArchCrimR (1854) 206, 213. Note, however, the apparent lack of any signiWcant volitional element in von Weber
‘Über die verschiedenen Arten des Dolus’, NArchCrimR 7 (1825) 540, 563, 571f, and, on the other hand, the pre-
scient statements in Mittermaier ‘Über den BegriV und die Merkmale des bösen Vorsatzes’, NArchCrimR 2 (1818)
515, 526 (on which see Großmann, Grenze at 56; Puppe, ZStW 103, 1, 28f; SchaVstein, Die allgemeinen Lehren at 130).
SPRING 2004 Concepts of Intention in German Criminal Law 105
many of the German states were slow to catch up with this,37 and it was not until
Wrst the Prussian and then the all-German Criminal Codes of 1851 and 1871
respectively failed to contain a deWnition of intention and thus left the way open
for scholarly analysis to shape the law that dolus eventualis in its modern form was
able to come into its own.38 The German Legal Conference of 1897 gave it the
Wnal seal of approval—without deWning it in any very helpful way, but conWrm-
ing the existence of the volitional element.39
Even in the late 19th and early 20th centuries, however, there are still some
decisions of the Reich Supreme Court40 which seem to look back to Böhmer’s
concept of dolus eventualis. The draft Criminal Code of 1909 (which was never
enacted) deWned dolus eventualis simply as foresight of a not-improbable result.41
However, dolus eventualis in the form sketched above gradually won the battle
with other possible concepts, and has been accepted now for about a hundred
years by the Courts and most scholars as the correct concept, while of course
intention continues also to exist in the two ‘stronger’ forms of direct intention
and knowledge as outlined earlier. The concept of intention, in the form of dolus
eventualis, as expressed by the Court in the Doner Shop Case, may thus be said to
be the product of early 19th century legal thought which gradually established
itself as the dominant and correct concept at the latest by the end of the Wrst dec-
ades of the 20th century.42

37
von Hippel, ‘Vorsatz’ at 454–85; Schuldformen at 244–48; Stenglein, ‘Behandlung’ at 94–96; Temme,
NArchCrimR (1854) 206, 226–29. It is interesting to note the apparently modern deWnition in Württemberg’s mid-
19th-century Criminal Code, together with the fact that it was quite controversial on its way through Parliament:
Feuerbach/Mittermaier, Lehrbuch at 103f; Hepp, Commentar über das neue württembergische Straf-Gesetzbuch nach
seinen authentischen Quellen, den Vorlagen der Staatsregierung und den ständischen Verhandlungen des Jahres 1838
(Tübingen: C.F. Ossiander, 1839) at 477–82.
38
Großmann, Grenze at 42f.
39
See the resolution printed in Schriftführer-Amt (ed.), Verhandlungen Band IV at 285, 369; Schloß, Der Dolus
eventualis at 78. Note, however, the explanation of this provided by von Bar ‘Nochmal zur Frage des Dolus eventu-
alis’, GS 56 (1899) 401. It is interesting to note that this conference concerned itself with this topic largely, it would
seem, as a result of public protests to the eVect that the concept of intention was being stretched too far by an over-
zealous Judiciary: see the debate and essays in Schriftführer-Amt (ed.), Verhandlungen Band I at 90, 97, 104f, 107,
132; Band IV at 271f, 277, 279f; von Bar, ZStW 18, 534, 534; Hamm ‘Der dolus eventualis’, DJZ (1898) at 356,
358; Kohlrausch, Die ,Straftat‘ im deutschen Strafgesetzentwurf 1919’, ZSchwStr (1921) 156, 170; Liepmann, Die
Reform des deutschen Strafrechts: Kritische Bemerkungen zu dem ,Strafgesetzentwurf‘ (Hamburg: W. Gente, 1921) at
68, n 4, 72f, 79; Runck, Dolus eventualis: ein Beitrag zur Schuldformenlehre (Ludwigshafen: Waldkirch, 1929) at 9.
Given that some of those prosecuted and found guilty as a result of dolus eventualis were newspaper editors (e.g.
RGSt 9, 417), it is easy to imagine that the public outcry might have been chieXy a press outcry.
40
For example, RGSt 10, 337, 338; RG, R 9, 361, 361; RGSt 10, 425, 431; RGSt 25, 5, 8; RGSt 27, 406, 409;
RGSt 58, 197, 199; RGSt 53, 342, 342. This Reich, by the way, is the Second Reich (the German Monarchy which
existed from 1871 to 1918) and the Weimar Republic, which kept the name Reich for the state.
41
Engisch, Untersuchungen at 108; Hamm ‘Der Vorentwurf zu einem deutschen Strafgesetzbuch’, DJZ (1911)
58, 59; Kohlrausch, ‘Die Schuld’ in Aschrott/von Liszt (eds), Die Reform des Reichsstrafgesetzbuchs: Kritische Bespre-
chung des Vorentwurfs zu einem Strafgesetzbuch für das Deutsche Reich unter vergleichender Berücksichtigung des österrei-
chischen und schweizerischen Vorentwurfs Band I: Allgemeiner Teil (Berlin: J. Guttentag, 1910) at 204–08; Lacmann,
ZStW 31, 142, 163; Lacmann ‘Über die Abgrenzung des VorsatzbegriVes’, GA 58 (1911) 109, 121–29; von Liszt
‘Zum Vorentwurf eines Reichsstrafgesetzbuches’, ZStW 30 (1909) 250, 261; Runck, Dolus eventualis at 11, 16;
Schloß, Der Dolus eventualis at 100–103.
42
Großmann, Grenze at 43; Honig, GA (1973) 257, 259; Kohlrausch, ‘Die Schuld’ at 198f; Lesch, JA (1997)
802; Roxin ‘Zur Abgrenzung von bedingtem Vorsatz und bewußter Fahrlässigkeit—BGHSt 7, 363’, JuS (1964)
53, 54. See also Schloß, Der Dolus eventualis at 20–27, for a good overview of the chief theories in 1911; and note
the fact that it was still considered worth writing a rebuttal of the views of those who refused to accept dolus eventu-
alis as late as 1911.
106 Oxford Journal of Legal Studies VOL. 24

3. Direct Intention (Absicht) and (Almost Certain) Knowledge

As already noted, there are three alternative forms of intention in German law:
intention in the narrow ‘purpose’ sense, certain knowledge and dolus eventualis.
The Wrst two forms will be broadly familiar to an English-speaking audience and
do not require a great deal of explanation. Indeed, there is not a great deal of
debate about these concepts in the German discussion of intention,43 as they,
compared with dolus eventualis, are considered to be fairly uncontroversial.
There has been some controversy in the English-language discussion about
whether what Bentham called oblique intention—knowledge that one’s action
will (almost) certainly produce a further eVect which is not itself directly
intended—is properly called intention at all.44 German legal discourse is able to
avoid this dispute by using two words found in the ordinary language in a well-
established specialized sense: Vorsatz for the broad concept of intention (includ-
ing all three sub-divisions of intention presented earlier) and Absicht for the
narrow concept of the ‘desired’ outcome (direct intention).45 Absicht, which is also
referred to as dolus directus in the Wrst degree, is deWned by the case law in terms
which are fairly similar to DuV’s criterion of failure:46 intention is what the actor
means to achieve, what matters to him (worauf es ihm ankommt)47 and is distin-
guished from motive.48 Absicht, of course, need not encompass the actor’s Wnal
aim; everyone agrees that intermediate goals are also included.49 After all, as is
sometimes said, an actor’s Wnal goal (getting rich, enjoying life more) is, gener-
ally speaking, unlikely to be punishable in itself.50 As one might also expect, the
actor is not expected to desire (in the sense of positively wish for) the act carried
out,51 something which DuV’s criterion of failure makes quite clear, so that a
reluctant bank robber who ‘needs’ money but regrets the necessity to rob banks
still acts intentionally.52 Nor need the actor consider it very likely that the goal
will be reached (so that someone who shoots from a great distance may still

43
Samson ‘Absicht und direkter Vorsatz im Strafrecht’, JA (1989) 449.
44
Ashworth, Principles of Criminal Law (Oxford: Clarendon, 2nd edn, 1997) at 170; DuV, Intention, Agency and
the Criminal Law: Philosophy of Action and the Criminal Law (Oxford: Basil Blackwell, 1990) at 75–84; DuV ‘Inten-
tion, Recklessness and Probable Consequences’ [1990] Crim LR 408, 408; GoV (Lord) ‘The Mental Element in
the Crime of Murder’ (1988) 104 LQR 30, 46; Smith, Smith & Hogan Criminal Law (London: Butterworths, 9th
edn, 1999) at 54; Williams ‘The Mens Rea for Murder: Leave It Alone’ (1989) 105 LQR 387, 388.
45
See further Oehler ‘Neue strafrechtliche Probleme des AbsichtsbegriVes’, NJW (1966) 1633; Welzel
‘Vorteilsabsicht beim Betrug’, NJW (1962) 20, 21.
46
DuV, Intention at 63, 90. Cf. Cross ‘The Mental Element in Crime’ (1967) 83 LQR 215, 224; Norrie ‘Oblique
Intention and Legal Politics’ [1989] Crim LR 793, 795f.
47
For example, Jescheck/Weigend, Lehrbuch at 297.
48
BGH, GA (1985) 321, 322; Bekker, Theorie at 403.
49
For example, Engisch, Untersuchungen at 145; Schroeder in Leipziger Kommentar, § 77 zu § 16. Cf. Williams,
The Mental Element in Crime (Jerusalem: Magnes, 1965) at 14, and note the amusing perspective on Enlightenment
thought oVered by Feuerbach, Revision, above n 35 at 62.
50
Hochmayr, JBl (1998) 205, 206f; Krug, Über dolus und culpa at 26; Samson, JA (1989) 449, 450; Stübel, Sys-
tem at 78; Weber, NArchCrimR 7, 549, 559.
51
BGHSt 16, 1, 7; BGHSt 21, 283, 284f; Schroeder in Leipziger Kommentar, § 77 to § 16.
52
Cf. Maurach/Zipf, Strafrecht at 305f.
SPRING 2004 Concepts of Intention in German Criminal Law 107
intend to kill); it suYces that a bare possibility should exist.53 Once these fairly
unsurprising points have been made, there is not much left to say;54 extended
discussion on the nature of this form of intention tends to be rather rare. Energy
is reserved for dolus eventualis.
Equally as uncontroversial a part of the concept of Vorsatz is dolus directus in
the second degree, which exists when the actor knows that a consequence of her
actions will almost certainly ensue, and includes the case in which the actor is
uncertain whether his plan will in fact succeed, but knows that, if it does, a fur-
ther consequence is almost certain to ensue.55 ‘Almost’ is added here because it
is generally recognized that nothing is absolutely certain in the world, and for-
mulae such as ‘practically certain’ are used to indicate that moral certainty is
suYcient.56 It is also agreed that the actor does not have to desire the side-eVect
in question; knowledge is enough.57 There is said to be little moral diVerence
between intending a result (in the Absicht sense) and knowing that it will occur,58
and accordingly the Courts and scholars unquestioningly accept this form of
Vorsatz. A standard example is the 19th century case involving one Thomas,
who intended to blow up a ship in order to claim the insurance; as he knew that
those on board would (almost) certainly have been killed had his plan

53
Kaufmann, ‘Der dolus eventualis im Deliktsaufbau: Die Auswirkungen der Handlungs- und der Schuldlehre
auf die Vorsatzgrenze’ ZStW 70 (1953) 64, 72; Oehler, NJW (1966) 1633, 1634f; Samson, JA (1989) 449, 450;
Schroeder in Leipziger Kommentar, § 76 to § 16; Welzel, NJW (1962) 20, 21; cf. Simester/Chan, ‘Intention Thus
Far’ [1997] Crim LR 704, 706f.
54
At least on general questions of direct intention. There is a debate, for example, on the more specialized ques-
tion of what happens in situations such as that dealt with by the Privy Council in Thabo Meli v R [1954] 1 All ER
373 (on which see Smith, Smith & Hogan at 76), that is, in cases in which the accused ceased to have the necessary
criminal intention when committing the act which actually caused the commission of the oVence because she
believed that she had already achieved her goal. For references, see Feuerbach/Mittermaier, Lehrbuch at 103;
Hettinger, ‘Der sog. dolus generalis: Sonderfall eines Irrtum über den Kausalverlauf‘?’ in Seebode (ed.), Festschrift;
Lucas, Subjektive Verschuldung at 18; Maiwald ‘Der dolus generalis: ein Beitrag zur Lehre von der Zurechnung’,
ZStW 78 (1966) 30; Mayer ‘Das Problem des sogenannten dolus generalis’, JZ (1956) 109; Roxin, ‘Gedanken zum
dolus generalis’ in Herren/Kienapfel/Müller-Dietz (eds), Kultur—Kriminalität—Strafrecht: Festschrift für Thomas
Würtenberger zum 70. Geburtstag am 7.10. 1977 (Berlin: Duncker & Humblot, 1977); SchaVstein, Die allgemeinen
Lehren at 110; Seiler ‘Der ,dolus generalis‘ in Lehre und Rechtsprechung’, ÖJZ (1994) 85; Weber, NArchCrimR 7,
540, 578f.
55
Samson, JA (1989) 449, 450.
56
Engisch, Untersuchungen at 90f; Jescheck/Weigend, Lehrbuch at 299 (highly probable); Schmoller ‘Der voluntative
Vorsatzelement’, ÖJZ (1982) 281 (highly probable—an Austrian scholar); Schroeder in Leipziger Kommentar, §§ 81-83
to § 16. A similar doctrine exists in English law: R v Woollin [1999] 1 AC 82, 94; Ashworth, Principles at 172; Simester
‘Moral Certainty and the Boundaries of Intention’ (1996) 16 OJLS 445; Simester/Chan, [1997] Crim LR 704, 715;
Smith ‘A Note on “Intention”’ [1990] Crim LR 85, 85f; Williams ‘Oblique Intention’ [1987] CLJ 417, 421f.
57
BGHSt 18, 246, 248; von Bar, ZStW 18, 534, 536; Engisch, Untersuchungen at 91; Jakobs, Strafrecht Allge-
meiner Teil (Berlin: Walter de Gruyter, 2nd edn, 1993) at 261; Jescheck/Weigend, Lehrbuch at 293f; Lesch, JA
(1997) 802, 808f; Schmoller, ÖJZ (1982) 259, 263, 281f; Schünemann, ‘Vom philologischen zum typologischen
VorsatzbegriV’ in Weigend/Küpper (eds), Festschrift für Hans Joachim Hirsch zum 70. Geburtstag am 11. April 1999
(Berlin: Walter de Gruyter, 1999) at 366; Wessels/Beulke, Strafrecht Allgemeiner Teil (Heidelberg: C.F. Müller, 31st
edn, 2001) at 477f. Cf. Williams [1987] CLJ 417, 418.
58
Hassemer, ‘Kennzeichen des Vorsatzes’ in Dornseifer et al. (eds), Gedächtnisschrift für Armin Kaufmann
(Cologne: Carl Heymann, 1989) at 299; Kohlrausch, ‘Die Schuld’ at 185. Again, a similar point is made in the
common-law world: DuV, Intention at 22; Leader-Elliott, ‘Negotiating Intentions in Trials of Guilt and Punish-
ment’ in NaYne/Owens/Williams (eds), Intention in Law and Philosophy (Aldershot: Ashgate, 2001) at 75; Moore,
Law and Psychiatry: Rethinking the Relationship (Cambridge UP, 1984) at 79; Williams, Mental Element at 12f. Note
however Ashworth, Principles at 170.
108 Oxford Journal of Legal Studies VOL. 24

succeeded, he intended, although he did not desire, to kill them.59 Once, how-
ever, the actor is no longer (almost) certain that, if her plan succeeds, another
consequence will also ensue, we leave the territory of dolus directus, for it is the
element of (almost) certainty which distinguishes dolus directus from dolus
eventualis60 such as was in issue in the Doner Shop Case.

4. Dolus Eventualis61
It must Wrst of all be said that the concept of dolus eventualis which will be pre-
sented here is that applied by the Courts and which also, broadly speaking, com-
mands the allegiance of the majority of scholars—but by no means all of them.
The historical overview of the development of dolus eventualis presented earlier
might give the impression that the debate has now closed. Nothing could be fur-
ther from the truth. But there is not space here to deal with the variety of other
concepts of dolus eventualis which have been proposed, except to the extent nec-
essary for the assessment and critique of the reigning doctrine which will follow.
Let us next recall what the Federal Supreme Court said in the Doner Shop
Case (following established principles of case law found in many other cases and
applicable to all crimes).62 It will be recalled that the Court analysed the ele-
ments of dolus eventualis into two separate components. First, the accused was
required to have foreseen the death of K as a not entirely distant possibility. This
requirement will pose few challenges for common lawyers. Although diVerent
from the test generally applicable for (subjective) recklessness, it is suYciently
similar to be instantly comprehensible. It is also an uncontroversial part of the
test for dolus eventualis among those scholars who accept the general thrust of the
Court’s jurisprudence.63 Surprise will be occasioned only by the fact that this
recklessness-like concept is suYcient for a crime of attempt,64 which, in the
common-law world, can normally be committed only intentionally (in the com-
mon law’s understanding of that phrase) and not recklessly. This reminds us
that dolus eventualis is seen by the German legal order as truly a case of intention,

59
Engisch, Untersuchungen at 170; Jescheck/Weigend, Lehrbuch at 299; Kohlrausch, ‘Schuld’ at 185. For references to
a similar example encountered in the English-language debate, see Leader-Elliott, ‘Negotiating Intentions’ at 74, n 6.
60
BGHSt 18, 246, 248; BGHSt 7, 363, 370.
61
The German-language phrase used for this concept is bedingter Vorsatz, which might be translated as ‘condi-
tional intention’. The Latin phrase will be used here, as it is also in very common use in legal discussions in
Germany, and for the sake of uniformity. During the debate in the German Legal Conference referred to earlier,
the phrase bedingter Vorsatz was proposed during the debate by a speaker as a substitute for the Latin phrase and as
if no such substitute had been in use before (see Schriftführer-Amt (ed.), Verhandlungen Band IV at 280). I have
not attempted to determine, however, whether the phrase was in fact in use before then.
62
For example, BGHSt 36, 1, 9; BGH, JR 1999, 205, 207. As pointed out earlier, the exceptions are the minor-
ity of crimes which, according to the Code, cannot be committed with dolus eventualis, but require Absicht and/or
almost certain knowledge: see above, n 18.
63
Küpper ‘Zum Verhältnis von dolus eventualis, Gefährdungsvorsatz und bewußter Fahrlässigkeit’, ZStW 100
(1988) 758, 773.
64
Although a minority of scholars oppose this rule, it is quite clearly the law: Bauer, ‘Die Abgrenzung des dolus
eventualis — ein Problem der Versuchsdogmatik: oYzielle und apokryphe Abgrenzungskriterien in der neuen
Rechtsprechung des Bundesgerichtshofes’ wistra 1991, 168, 169.
SPRING 2004 Concepts of Intention in German Criminal Law 109
and that there is no middle ground between intention and negligence in German
law as there is for many crimes at common law.65
The second component of dolus eventualis is far more exotic. Here, the Court
states that the accused would have had the necessary intention to kill in the form
of dolus eventualis if he had approved of the death of K, or at least reconciled
himself to it.66 He would not have had such an intention, however, if he had ear-
nestly (one might also translate: seriously) and not merely in a vague way relied
on the non-occurrence of a fatal result. In such a case, the accused’s mental state
would be described as conscious negligence (to translate the phrase bewußte
Fahrlässigkeit literally)67 or, as one sometimes also sees in English-language
works,68 as advertent negligence (the phrase which will be used henceforth).
Dolus eventualis and advertent negligence are mutually exclusive and form the
border between intention and negligence. It follows from the fact that there is no
tertium quid in German law comparable to recklessness that there is no ‘no man’s
land’ between the two mental states: they border directly on to each other with
no gap in between, so that a person who does not earnestly rely must necessarily
have reconciled himself and vice versa.69 Given the general rule in Germany that
negligence does not give rise to criminal liability unless the Code provides other-
wise,70 this is quite an important distinction within the criminal law.
An example may help to illustrate what German law is trying to do here. One
example that is commonly used is that of a driver overtaking on a road with
insuYcient opportunity to check for oncoming traYc.71 Such a driver, if compe-
tent, will realize the possibility that someone might be coming the other way,
and thus will fulWl the Wrst criterion of dolus eventualis. But, unless suicidal, he
will not fulWl the second, for he will neither approve of the possibility of an acci-
dent nor reconcile himself to it. Rather, he will trust in his luck and rely earnestly
on the non-occurrence of an accident. Thus, our driver acts only with advertent
negligence.
Analysing this ruling concept of dolus eventualis, we can see that it is con-
cerned, Wrst, with the knowledge and assessment of the degree of risk by the
65
But, under the common law of England, not for murder, of course. Sir Anthony Mason has referred to this as
a ‘self-inXicted wound’: see ‘Intention in the Law of Murder’ in NaYne/Owens/Williams (eds), Intention at 111.
See also Lord Irvine of Lairg LC ‘Intention, Recklessness and Moral Blameworthiness: ReXections on the English
and Australian Law of Criminal Culpability’ (2001) 22 Syd LR 5, 7, 10.
66
This translation of sich damit abWnden is based on Fletcher, Re-thinking at 325; Michaels, 71 So Cal LR 953,
1025 (1998); Synman, Criminal Law at 169.
67
And using a phrase which may be found in DuV, Intention at 168; Fletcher, Re-thinking at 446; Synman, Crim-
inal Law at 173, 205f; Williams, Mental Element at 55, 58.
68
Ashworth, Principles at 176; Williams, Criminal Law: The General Part (London: Sweet & Maxwell, 2nd edn,
1961) at 53.
69
Jescheck/Weigend, Lehrbuch at 301; Schmidhäuser ‘Zum BegriV der unbewußten Fahrlässigkeit’, GA (1957)
305, 306.
70
§ 15 of the Code. Also unsurprising is the fact that, if negligently as well as intentionally bringing about a par-
ticular result is punishable under the Code, a lesser maximum penalty is generally provided for the former.
71
For example, Frisch, Vorsatz und Risiko: Grundfragen des tatbestandsmäßigen Verhaltens und des Vorsatzes.
Zugleich ein Beitrag zur Behandlung außertatbestandlicher Möglichkeitsvorstellungen (Cologne: Carl Heymann, 1983) at
256; Herzberg ‘Die Abgrenzung von Vorsatz und bewußter Fahrlässigkeit: ein Problem des objektiven Tatbe-
stands’, JuS (1986) 249, 250; Wessels/Beulke, Strafrecht at 74. This person is a Wgure who also puts in an occa-
sional appearance in the common-law world: GoV (Lord), (1988) 104 LQR 30, 52; Williams, Mental Element at 26.
110 Oxford Journal of Legal Studies VOL. 24

accused—the cognitive element. Unless we are to adopt an objective standard of

intention, making accused persons liable for risks they did not even consider, the
need for this component is apparent. Knowledge of a mere possibility might, if it
stood alone as a criterion of intention, be too little, but the scholarly debate in
Germany on this possible alternative to the ruling view of dolus eventualis cannot
be pursued here. The second element of the ruling doctrine is not a cognitive
element. It is generally referred to as a volitional element, but perhaps the ele-
ment of will in it is not strong enough to justify that: it might be better called a
dispositional one. It asks: what was the accused’s attitude to the risk? Was the
accused prepared to run the risk, knowing that it might materialize and being
reconciled to that possibility, or did the accused lull herself into a false sense of
security, going ahead with her plan in the Wrm belief that the risk would not
materialize?
In the second case, it is thought, the accused did not intend the risk, because
it could not be said to be part of what he willed to occur. He excluded it from his
will by convincing himself that it would not occur. Thus it is commonly said,
somewhat inaccurately but handily and alliteratively,72 that Vorsatz (and not just
dolus eventualis!) consists in knowing and desiring (Wissen und Wollen) an
action.73 Although in need of numerous explanatory statements—for, as we have
seen, desiring, for example, is not a completely accurate description of the men-
tal state involved even in Absicht—this formula does at least remind us of the
dual set of requirements for dolus eventualis.
The Wrst question we might ask about all this is: why? Why is it necessary for an
accused to do anything more than foresee a risk (perhaps at a somewhat higher
level than mere possibility) and continue acting in the knowledge of that risk?74
This is a question which has provoked surprisingly little discussion, prompting
one commentator to point out that the inclusion of a volitional element in dolus
eventualis is not a priori or obviously correct and must be justiWed.75 Another view
is that the Wissen und Wollen (knowing and desiring) formula owes its popularity
and longevity chieXy to its alliterative eVect76—and, I might add, to the tendency
of many lawyers to accept what they hear in their Wrst year of legal studies as
unalterable truth. Nevertheless, some justiWcation of the volitional element must
exist, especially recalling that § 16 of the Code implies that there is a cognitive
element in Vorsatz, but says nothing of a volitional or dispositional element.77
Historically, the insistence on a volitional element can be seen as part of the
inheritance of Roman law, which also assumed that dolus was constituted by the
72
The full formula (see, e.g. Wessels/Beulke, Strafrecht at 70) is generally expressed along the following lines:
Vorsatz is the will to commit a criminal oVence in the knowledge of all its objective elements—this, too, contains
the elements of cognition and volition.
73
For example, RGSt 51, 305, 311; RGSt 58, 247, 249 (‘das bewußte Wollen’); BGH, NJW (1988) 175;
Bleckmann, Strafrechtsdogmatik at 12; Welzel, Das deutsche Strafrecht: eine systematische Darstellung (Berlin: Walter
de Gruyter, 11th edn, 1969) at 64.
74
Cf. R v Crabbe (1985) 156 CLR 464, 469.
75
Schumann, JZ (1989) 427, 430.
76
Schild, ‘Der strafrechtliche Vorsatz’ at 119.
77
Kindhäuser ‘Der Vorsatz als Zurechnungskriterium’, ZStW 96 (1984) 1.
SPRING 2004 Concepts of Intention in German Criminal Law 111
human will,78 and of Feuerbach’s theory of deterrence, which coincided with the
beginnings of the development of the modern concept of intention and empha-
sized the deterrent eVect of the criminal law on the human will.79
Some modern attempts at justifying the volitional element do not proceed
beyond a question-begging assumption that a volitional element is of course
required as part of the concept of intention,80 but that will not do. Others
assume the correctness of the system by stating that, without the volitional ele-
ment, there would be no distinction between advertent negligence and dolus
eventualis,81 but do not go on to question that distinction per se.82 These two
strategies are also adopted by the Federal Supreme Court.83 Further attempts to
justify the volitional element include the statement that, without it, intention
would include all acts foreseen as possible, which would go too far,84 and the
assertion that acting without trusting earnestly in the non-occurrence of a pro-
hibited result is a more serious oVence against the legal order than if one acts
with that trust.85 Let us, however, postpone further criticism for a moment and
continue with the elucidation of the concept of intention.
Another question which suggests itself is: what does all this mean? What does
it mean to approve of a result that is not part of one’s direct intent, to reconcile
oneself to it, or to rely earnestly on its non-occurrence? Of course, there comes a
point at which deWnition by the substitution of one set of words for another
ceases to be helpful, and we look for practical applications of a theory to Wnd out
what it means in practice. That is the point of the example involving the overtak-
ing driver. Nevertheless, one might hope that some additional conceptual work
has been done here. One Wgure of speech which is sometimes used (including by
the Courts) to illustrate the state of mind represented by dolus eventualis is billi-
gendes Inkaufnehmen, which might be translated, with some diYculty, as taking
the possible criminal result of one’s conduct into the bargain and approving of
it.86 This does not help us very much, as the concept of approval is still there,87
but the metaphor of taking something into the bargain modiWes this to some
extent by conjuring up a picture of an actor who imagines all the consequences
of a proposed course of action, foresees some which she does not really want,
and may even wish could be eliminated. Not being able to do so, however, she
decides to accept the whole package, as she approves of the desired outcome to

78
Schuldformen at 173.
79
Feuerbach, Revision at 61f. It is also interesting to notice the prominence given to concepts of the will (a con-
cept which played a large part in Nazi rhetoric) in the Nazi period; see Mayer, Das Strafrecht des deutschen Volkes
(Stuttgart: Ferdinand Enke, 1936) at 293. In fairness, it should be added that that author’s views on this topic may
be the result of swimming with the tide rather than conviction.
80
Synman, Criminal Law at 172; Wessels/Beulke, Strafrecht at 74.
81
Schultz, ‘Eventualvorsatz’ at 309.
82
Schröder, ‘Aufbau’ at 220f.
83
BGHSt 36, 1, 11; BGH, NJW (1999) 2533, 2535.
84
Cf. Puppe, ZStW 103, 1, 2.
85
Jescheck/Weigend, Lehrbuch at 74; Wessels/Beulke, Strafrecht at 74.
86
Cf. Mannheim at 236, 250, although note that the word billigend was missing from the draft discussed there.
87
On the need for it, see Dörr, Die Grenze des Tatvorsatzes in der Rechtsprechung (doctoral dissertation, Bonn,
1967) at 127f; Engisch ‘Anmerkung zu BGH 7, 363’, NJW (1955) 1688, 1688f; Ross, Über den Vorsatz at 99.
112 Oxford Journal of Legal Studies VOL. 24

which the course of action is to lead, and, in that context, accepts and approves
of the possible but undesired consequence.88 Such an actor would then be con-
trasted with one who acts only because he earnestly believes that the undesired
consequence will not actually occur. So we might compare, for example, two
gangsters who organize bank robberies, both of whom realize that it is possible
that their gang might injure or even kill someone in the course of a robbery. The
Wrst, in planning the robbery, is conWdent on the basis of experience that his
gang will use the gun only for the purpose of cowering the bank’s staV and cus-
tomers into submission—and would be prepared, if it came to that, to abandon
the robbery rather than to accept injury to or the death of others. The second,
however, cares far less for the lives of the staV, customers and police, and would
rather that his co-oVenders shoot or accept substantial risks to others’ health
than run even the smallest risk of failure or capture.89
It will not have escaped attention, however, that, in the Doner Shop Case, the
Federal Supreme Court, reXecting the ruling doctrine on dolus eventualis, spoke
of two slightly diVerent mental states:90 one involving approval of a conse-
quence, the other merely making one’s peace with it or being reconciled to it.
There are indeed two slightly diVerent nuances here. Clearly, approving of a
consequence of one’s actions is a somewhat stronger form of ‘acceptance’91 than
merely reconciling oneself to it. One commentator points out correctly that the
latter phrase in German has a somewhat fatalistic ring to it: one reconciles one-
self, for example, to the fact that one’s political opponents have won the elec-
tion.92 This latter state of mind suYces for dolus eventualis today, at least
according to the Federal Supreme Court.93 Approval of a consequence is, of
course, also suYcient, but it worth noting how weak and watered-down the
requirement of a volitional element—allegedly necessary to constitute inten-
tion—has now become.
Although this development seems to have occurred quite gradually, it is prob-
ably right to say that the origin of it lies in the famous Leather Strap Case of
1955.94 In this case, the oVenders wished to rob an acquaintance, but not to kill
him. Accordingly, they made elaborate plans for knocking him unconscious. But

88
Honig, GA (1973) 257, 261f.
89
Cf. RGSt 67, 424, 424–26; Feuerbach/Mittermaier, Lehrbuch at 103; Maurach/Zipf, Strafrecht at 312;
Schriftführer-Amt (ed.), Verhandlungen Band IV at 274.
90
See further Fletcher, Re-thinking at 445f.
91
Michaels, 71 So Cal LR 953 (1998). Cf. Feuerbach/Mittermaier, Lehrbuch at 103.
92
Kindhäuser, ZStW 96, 1, 24. See also Schmoller, ÖJZ (1982) 259, 286.
93
BGH, NStZ (1988) 175; BGH, NStZ (1999) 508; Doner Shop Case, BGH, NStZ-RR 2000, 165, 166; Frisch,
‘Gegenwartsprobleme des VorsatzbegriVs und der Vorsatzfeststellung am Beispiel der AIDS-Diskussion’ in
Geppert/Dehnicke (eds), Gedächtnisschrift für Karlheinz Meyer (Walter de Gruyter, Berlin 1990) at 539; Honig, GA
(1973) 257, 60f. This is probably also the ruling view among scholars: Küpper, ZStW 100, 758, 765; Zielinski in
Seelman (ed.), Alternativkommentar zum Strafgesetzbuch (Neuwied: Luchterhand, 1990) at 75f. Cf. Frisch
‘Riskanter Geschlechtsverkehr eines H.I.V.-InWzierten als Straftat? —BGHSt 36, 1’, JuS (1990) 362, 366.
94
BGHSt 7, 363. For an earlier example, see RGSt 61, 211, and the commentary by Mannheim at 82, 96.
According to Jescheck, ‘Aufbau und Stellung des bedingten Vorsates im VerbrechensbegriV’ in Würtenberger/
Maihofer/Hollerbach (eds), Existenz und Ordnung: Festschrift für Erik Wolf zum 60. Geburtstag (Frankfurt am Main:
Vittorio Klostermann, 1962) at 485, the phrase sich damit abWnden (translated here as reconciling oneself) was an
import from Switzerland which Wrst made its appearance in German law in 1960.
SPRING 2004 Concepts of Intention in German Criminal Law 113
on the day, everything went wrong; the original method chosen to knock the vic-
tim unconscious failed; in the end, the oVenders resorted to a leather strap to
choke the victim, although, again, they wished only to render him unconscious
in order to rob him, not to kill him. It was quite clear that the perpetrators did
not want or ‘approve of’ the death of their acquaintance, and indeed they tried
unsuccessfully to revive him after the deed was done. The Federal Supreme
Court nevertheless spoke of the perpetrators’ having ‘approved, in the legal
sense’95 of the death of their victim. The general surprise,96 not to mention deri-
sion,97 with which this phrase was greeted—having regard to the fact that the
perpetrators had planned and structured their oVence in accordance with their
desire that the victim should survive98—was probably the chief reason behind the
addition of self-reconciliation to the test for dolus eventualis.99 Nevertheless, the
change involved should not be exaggerated:100 the volitional element has been
slightly extended, but by no means removed, as we saw in the Doner Shop Case.
At least, that is what the Courts say they are doing;101 they have never expressly
abandoned some sort of volitional element.
Lastly, we might ask what is meant here by earnestly relying on the non-
occurrence of a consequence which is foreseen as possible—the indicium of
advertent negligence. Here a clear change has taken place. In older commentaries,
one reads the bald statement that an actor need merely hope for the non-occurrence
of the consequence.102 Modern authors emphasize that a mere pious hope will
not suYce—there must be an earnest reliance;103 and, as we have seen, the case
law follows this, stating that a vague hope will not suYce.104 It is easy to see the
reason for this development: many perpetrators may well hope that a further
criminal oVence which they realize is a possible consequence of what they plan
to do (such as the death of the victim of a robbery) will not eventuate; but if this
is simply a wish not to have to spend more time in gaol, it is hardly a praiseworthy

95
BGHSt 7, 363, 369.
96
Geppert, ‘Zur Abgrenzung von bedingtem Vorsatz und bewußter Fahrlässigkeit’, Jura (1986) 610, 612; Haft
‘Die Lehre vom bedingten Vorsatz unter besonderer Berücksichtigung des wirtschaftlichen Betrugs’, ZStW 88
(1976) 365, 374; Hall, Fahrlässigkeit im Vorsatz: eine anthropologische strafrechtsdogmatische Studie (Marburg: N.G.
Elwert, 1959) at 38; Langer ‘Strafrechtsdogmatik als Wissenschaft: Eberhard Schmidhäuser zum 70. Geburtstag
am 10. Oktober 1990’, GA (1990) 435, 460f; Schmidhäuser, GA (1957) 305, 308; Ziegert, Vorsatz, Schuld und
Vorverschulden (Berlin: Duncker & Humblot, 1987) at 102.
97
Herzberg, ‘Der Vorsatz’ at 73; Herzberg, JuS (1986) 249, 251.
98
Bleckmann, Strafrechtsdogmatik at 19; Hall, Fahrlässigkeit at 38.
99
Engisch, NJW (1955) 1688, 1688f; Jescheck, ‘Aufbau’ at 484f; Roxin, ‘Zur Abgrenzung’ at 56; Schmidhäuser
‘Die Grenze zwischen vorsätzlicher und fahrlässiger Straftat (dolus eventualis und bewußte Fahrlässigkeit)’, JuS
(1980) 241, 246. Further references to the case law may be found in Schroeder in Leipziger Kommentar § 86 to § 16.
100
Cf. Engisch, Untersuchungen at 92.
101
Cf. Schumann, JZ (1989) 427, 427f.
102
For example, Breidenbach, Commentar über das Großherzoglich Hessische Strafgesetzbuch und die damit in
Verbindung stehenden Gesetze und Verordnungen nach authentischen Quellen mit besonderer Berücksichtigung der Ges-
etzgebungswerke anderer Staaten, namentlich des Königreichs Württemberg und des Großherzogthums Baden Band I 2.
Abteilung (Darmstadt: G. Jonghaus, 1844) at 58; Lacmann, GA 58, 109, 117.
103
For example, Jescheck/Weigend, Lehrbuch at 299; Welzel, Das deutsche Strafrecht at 68.
104
See also BGH, NJW (1979) 1512, where this is made particularly clear.
114 Oxford Journal of Legal Studies VOL. 24

state of mind.105 Nor is a mere pious hope suYcient to acquit the oVender of
acting with suYcient disregard for others’ interests.106
It is far harder, however, to say precisely what earnest reliance means, where
the border between a vague hope and earnest reliance may be found,107 how the
oVender can prove that he had an earnest reliance as distinct from a vague hope,
or even what may be typical examples of vague hopes and earnest reliance. The
overtaking driver is one example of earnest reliance, but such a driver has her
own personal safety at stake; it is much harder to identify similar and illuminat-
ing examples when only others’ interests are involved. There is little to no case
law which could be cited to illuminate this question, merely a series of individual
decisions. In one recent case, it was held that any mere hope which an oVender
may have had that the victim would remain unharmed and discover in time the
gas leak which he had deliberately caused in her home was not suYcient.108 But
this was not related to any broader principle; nothing was said to indicate what
would have constituted an earnest reliance in such a case; nor does the Doner
Shop Case enlighten us in any way. It may well be that the accused in the Gas
Leak Case could have demonstrated an earnest reliance by alerting someone to
the danger he had created, but that would involve modifying his act by making
the outcome of death objectively less probable, and accordingly does not really
help us to identify a mental state which, without any modiWcation of the facts,
would count as earnest reliance rather than a vague hope. Thus, several authors
complain of the vagueness of the concept of the vague hope109—a matter to
which we shall return shortly.
Before doing so, we might Wnally pick up and generalize one of the questions
raised in the last paragraph, and ask: how, as a practical matter, is it proved
whether the accused acted with dolus eventualis or advertent negligence? Need-
less to say, in the absence of a confession truly reXecting the accused’s mental
state, the Courts must rely, as they do in the common-law world, on circumstan-
tial evidence. But it is a slightly diVerent form of circumstantial evidence,
reXecting the diVerent concept of intention. From a common-law perspective,
perhaps the most surprising thing is the openness with which it is acknowledged
that the accused’s personality plays a role.110 This is, however, only logical in a
system which takes the accused’s disposition towards the possible realization of
the risk as the decisive criterion dividing intention and negligence. Thus, in one
case it was held that the fact that the accused was a loving father made it less
likely that he would have reconciled himself to the harm he did to a child in his
care.111 On the other hand, the Federal Supreme Court appears to have assumed
in the Doner Shop Case that the disposition of the accused as a racially motivated
105
Williams, Mental Element at 20.
106
Cf. Großmann, Grenze at 69.
107
Schröder, ‘Aufbau’ at 233.
108
BGH, NStZ (1999) 508.
109
Bleckmann, Strafrechtsdogmatik at 14; Frisch, ‘Gegenwartsprobleme’ at 541; Puppe, NStZ (1987) 363.
110
BGHSt 36, 1, 10.
111
BGH, NStZ (1988) 175.
SPRING 2004 Concepts of Intention in German Criminal Law 115
oVender made it more likely that he might have reconciled himself to the possi-
ble death of K.112 In the common-law world, this motive would hardly remain
unmentioned in a prosecution, but its relevance to questions of recklessness
would not be very great. However, its use in the German case may be merely an
instance of the less surprising point that the motives and interests of the accused
are also relevant to determining the question of dolus eventualis,113 and so possi-
bly the danger of using an accused’s ‘personality’ to her disadvantage, which
would shock many common lawyers, is not quite as great as it may seem.114
Other relevant considerations which the cases mention include:115 the manner in
which the oVence is carried out;116 the relationship between accused and victim;
the general state of mind of the accused before, during and immediately after the
act;117 any statements made by the accused;118 the accused’s knowledge of the
danger and belief about its likelihood (the number of times that this cognitive
criterion is mentioned does perhaps give the game away about the real signiW-
cance of the volitional element);119 and whether the accused had a reason to rely
on the non-occurrence of the prohibited result.120 An intoxicated accused is also
less likely to be able to form dolus eventualis;121 in the Doner Shop Case, the Court
especially noted that the accused was not intoxicated at the time (and also did
not act as a result of a sudden impulse or mental problems).122
One Wnal indicium should be mentioned: in relation to oVences involving
homicide, it is settled that there exists a generally high reluctance to undertake a
violent act which may lead to the death of another person. The Federal Supreme
Court therefore demands a particularly extensive consideration of the facts by
trial Courts before they may come to the conclusion that this reluctance has
been overcome123—although, as already noted, it does not give any Wrm guide-
lines about what precisely trial Courts are meant to look for or need to decide
before deciding that this resistance has been overcome and the accused recon-
ciled himself to the death of another person.

112
BGH, NStZ-RR 2000, 165, 166.
113
BGH, NJW (1999) 2533, 2536.
114
See, however, the criticisms in Großmann, Grenze at 74f, 87; Mannheim at 82, 92f; Puppe, Vorsatz und
Zurechnung (Heidelberg: Decker & Müller, 1992) at 36, 44f; Puppe, ZStW 103, 1, 5.
115
No attempt is made here to give a complete summary of the case law.
116
Doner Shop Case, BGH, NStZ-RR 2000, 165, 166.
117
Ibid; Germann, SchwZStr 77, 345, 384.
118
BGHSt 36, 1, 10; BGH, NJW (1990) 129, 130.
119
BGHSt 36, 1, 10f; Doner Shop Case, BGH, NStZ-RR 2000, 165, 166; BGH, NStZ-RR 2000, 328, 329; Küpper,
ZStW 100, 758, 766f; Mayer ‘Die ungeschützte geschlechtliche Betätigung des AidsinWzierten unter dem Aspekt
der Tötungsdelikte—ein Tabu?’, JuS (1990) 784; Schroeder in Leipziger Kommentar, § 88 to § 16; Schroth ‘Die
Rechtsprechung des BGH zum Tötungsvorsatz in der Form des dolus eventualis’, NStZ (1990) 324, 325; Wessels/
Beulke, Strafrecht at 74. Cf. Michaels, 71 So Cal LR 953, 1001 (1998). See further below, n 153.
120
BGHSt 36, 1, 11.
121
BGH, NStZ-RR 1997, 233, 233.
122
BGH, NStZ-RR 2000, 165, 166.
123
For example, BGH, NJW (1990) 129, 130; BGHR, StGB § 212 Abs. 1 Nr 12; BGH, NJW (1999) 2533,
2534; Doner Shop Case, BGH, NStZ-RR 2000, 165, 166; BGH, NStZ-RR 2000, 328, 329; Bauer, ‘Abgrenzung’ at
168. If death is caused otherwise than by a violent act, this rule does not apply: BGH, NJW (1992) 582, 583f.
116 Oxford Journal of Legal Studies VOL. 24

5. Does Dolus Eventualis Make Sense?

The view which will be taken here is that the concept of dolus eventualis is an irre-
trievably Xawed one. No doubt objections to it will have occurred to the reader
already. In this section, I propose to consider the main objections to the theory
and to say why it ultimately fails. As mentioned earlier, the available space does
not suYce to present the alternative theories developed by scholars, although the
objections of writers critical of dolus eventualis in its current form can of course
be considered. The objections may be divided into doctrinal and psychologi-
cally-based objections, although there is a good deal of inter-relation between
the two.

A. Doctrinal Objections
The Wrst objection has already been mentioned brieXy: why should not the fact
that the accused has acted, although knowing that her actions were attended by
a substantial risk of the commission of a crime (or a further crime), suYce to
prove that that crime, if it does eventuate, was committed with a suYcient ele-
ment of fault to justify the accusation that the accused acted intentionally, or
perhaps—ignoring the need to introduce such a concept into German law—
recklessly?124 Such a person might be thought to have shown suYcient disregard
for the interests of others and of the criminal law to justify such an accusation.125
No doubt some Wne-tuning of the level of foresight possessed by the accused
would be necessary (foresight of possibility may be thought to be too low a hur-
dle);126 but why the need for the additional element of volition? As we have seen,
no convincing justiWcation of this has been presented, beyond the allegedly con-
vincing formula that intention is always composed of desire as well as knowl-
edge. But even this is far from convincing, as dolus directus in the second
degree—(almost) certain knowledge—does not require any volitional element.
So why the sudden need for one when the accused is not (almost) certain, but in
doubt about whether his actions will lead to a crime?127 One who foresees a pos-
sible consequence of her actions but goes ahead anyway must approve to some
extent of that consequence, or else she would not have gone ahead.128 That, it is
suggested, is at the heart of the Court’s preparedness to condemn the actors in

124
von Almendingen, Untersuchungen at 17 (but see at p. 18); Engisch, Untersuchungen at 109f; Lucas, Subjektive
Verschuldung at 12; Mayer, Strafrecht Allgemeiner Teil (W. Kohlhammer, Stuttgart 1967) at 121-123; Ross, über den
Vorsatz at 111; Runck, Dolus eventualis at 33f; Schmidhäuser, Strafrecht Allgemeiner Teil (Tübingen: J.C.B. Mohr,
1970) at 345; Schmidhäuser, GA (1957) 305, 306f; Sick, ‘Anmerkung zu BGH, JR 1993, 163’, JR (1993) 164,
166.
125
Engisch, Untersuchungen at 109f.
126
For example, Lucas, Subjektive Verschuldung at 16f.
127
Ross, über den Vorsatz at 111. This diVerence was accepted in BGHSt 18, 246, 248; see also Schumann, JZ
(1989) 427, 430.
128
Bekker, Theorie at 254; Schmidhäuser ‘Der BegriV des bedingten Vorsatzes in der neusten Rechtsprechung
des BGH und in § 16 Komm. Entw. StGB Allg. Teil 1958’, GA (1958) 161, 166. Cf. Leader-Elliott, ‘Negotiating
Intentions’ at 75–80, 89; Simester (1996) 16 OJLS, 445f.
SPRING 2004 Concepts of Intention in German Criminal Law 117
the Leather Strap Case as intentional actors—the case which watered down the
volitional requirement so greatly that it is hardly recognizable as such.
After that case, it is hard to consider the volitional element to be much more
than a Wction129 introduced to satisfy the dogma that intention must include an
element of desire.130 One commentator131 amusingly likens the process of rea-
soning involved to that of a person who starts oV from the assumption that all
birds can Xy. Confronted with, for example, penguins, the theory is not aban-
doned or modiWed to suit the newly discovered facts; rather, it is declared that
penguins really can Xy, but in an extended sense: the element of Xying is identi-
Wed in their Xapping of their wings. Thus, the ideal or typical case of a particular
class of phenomena is elevated to a necessary condition for all such phenomena.
The theory of intention does this by elevating the volitional element present in
Absicht to a generalized requirement for all forms of Vorsatz.
To such objections, advocates of dolus eventualis respond by stating that the
formula of knowledge and desire is a handy summary only, not a statutory text,
and that the system is a variable one. By this they mean that deWciencies in one
half of the formula can be made up in the other half. Thus, a person who acts
with Absicht needs less of the cognitive element, and a person who acts with
(almost) certain knowledge little to no volitional element. A person acting with
dolus eventualis, therefore, need not fulWl both elements completely; a suYcient
level of each is, however, present.132 So this objection is not a knock-out blow to
the theory.
Many people133 may still object to the use of the word ‘intention’ to cover cir-
cumstances in which an actor neither knew that a particular result was certain
nor (in the narrow sense) intended that result. In the Wnal analysis, views may
diVer about whether ‘intention’ is a proper term for such situations. The view
taken here is that, at the level of comparative law, this is essentially a question of
labelling and categorization, and that every legal order has the right, if it chooses,
to call something ‘intention’ which neither philosophers nor ordinary users of
language would so designate. But the stretching of the word ‘intention’ to cover
cases which do not really Wt may lead to the development of criteria for deter-
mining what falls under the extended meaning of ‘intention’ which are appropri-
ate only for its ‘core’ meaning and, in relation to the extended meaning, do not
make much sense. In the light of the German experience, the common law’s
decision not to consider recklessness to be part of intention, but something
separate (even if closely related), seems a very wise one. It is a shame that the
129
Hall, Fahrlässigkeit at 38; Lesch, JA (1997) 802, 808f.
130
Schmidhäuser, ‘Strafrechtlicher VorsatzbegriV und Alltagssprachgebrauch’ in Herzberg (ed.), Festschrift für
Dietrich Oehler zum 70. Geburtstag (Cologne: Carl Heymann, 1985) at 142f, 149f.
131
Herzberg ‘Das Wollen beim Vorsatzdelikt und dessen Unterscheidung vom bewußt fahrlässigen Verhalten’,
JZ (1988) 573, 574f.
132
Jescheck/Weigend, Lehrbuch at 293; ScheZer, Jura 1995, 349, 353; Schroth, Vorsatz und Irrtum (Munich:
C.H. Beck, 1998) at 3; Schroth, ‘Rechtsphilosophische’ at 160f; Spendel, ‘Zum BegriV des Vorsatzes’ in Küpper/
Puppe/TenckhoV (eds), Festschrift für Karl Lackner zum 70. Geburtstag am 18. Februar 1987 (Berlin: Walter de
Gruyter, 1987) at 173, 181.
133
See, e.g. Thornton, ‘Intention in Criminal Law’, 5 Can Jo Law & Juris 177, 181f (1992).
118 Oxford Journal of Legal Studies VOL. 24

over-broad use of the concept of intention in German law has led it to try to Wt a
square peg into a round hole.
The theory that a volitional element is always required does however seem to
break down irretrievably—beyond a mere matter of labelling—in relation to cer-
tain oVences involving the accused’s knowledge of circumstances surrounding
the oVence. Take the oVence of rape.134 It requires some imagination to think of
circumstances in which a person accused of rape might realize the possibility
that the other party is not consenting and nevertheless not act with dolus eventu-
alis because earnestly relying on the possibility of consent. This might admittedly
be a possible state of the accused’s mind if, for example, the other party is sleep-
ing and sexual relations had recently occurred between them135—although even
here a reXective accused should realize that a sleeping person is not possibly con-
senting, but cannot consent. But, in the general run of cases, acting while in
doubt as to whether the other party consents will be suYcient to establish that
the accused reconciled himself to the possibility of non-consent—otherwise,
surely, he would have stopped and made sure. That is no doubt why at least
some of the German case law on this oVence appears to have quietly abandoned
the theory of dolus eventualis, imposed a theoretically dubious136 obligation on
the doubting accused to ascertain the true situation before proceeding, and
aYrms intention unless this is done.137 This amounts to saying that knowledge
of the possibility of non-consent is in itself suYcient proof of intention,138 and is
thus an abandonment of the volitional element. As a matter of legal policy, it is
hard to see what purpose dolus eventualis, if applied in this area, would serve,
beyond that of providing a privilege to those who had the opportunity to dis-
cover whether the victim consented or not but went ahead because they either
refused to face the truth139 or had some more or less ‘earnest reliance’ (whatever
that may mean) on the possibility that the other party really did consent.140
Examples such as this should lead us to question whether a criterion which
involves the accused’s positive or negative disposition towards the risk which she

134
For other examples, see Herzberg, JZ (1988) 635, 641; Liepmann, Reform at 84; Liszt, ZStW 30, 250, 261.
135
This is added because, of course, sexual intercourse with a sleeping person is rape, for the reason given in the
text (lack of consent), unless (ignoring questions of the onus of proof in favour of what is likely to be the real issue
in practice) some very good reason can be presented by the accused to indicate that he was not aware of the lack of
consent: R v Mayers (1872) 12 Cox CC 311; R v Young (1878) 14 Cox CC 114; R v Francis [1993] 2 Qd R 300,
305.
136
Horn in Rudolphi et al. (eds), Systematischer Kommentar zum Strafgesetzbuch (loose-leaf, 51st service July
2001, Luchterhand, Neuwied, 2001), § 17 zu § 177. This is theoretically dubious, inter alia, because German law
also sees rape as a crime of intent, so that an honest but unreasonable belief in consent negatives intention and thus
criminality. This is criticized by Fletcher, ‘Deutsche Strafrechtsdogmatik’, who however appears to have lost sight
of the fact that consent is not a defence to a general oVence of having sexual intercourse; rather, non-consent is an
integral part of the deWnition of the oVence, so that the requirement of intention applies to it as well. And Professor
Fletcher’s views as to the justice of the case are not intuitively obvious.
137
RG, JW 1935, 2734, 2734; RG, JW 1938, 2734, 2734; BGH, GA (1957) 316, 317. See also the deWnition of
dolus eventualis given in BGH, JR 1993, 163, 163.
138
Sick, JR 1993, 164, 166. Note also BGH, GA (1970) 57; BGH, NStE StGB § 177 Nr 7.
139
Cf. Puppe, ZStW 103, 1, 41.
140
Maurach ‘Zum subjektiven Tatbestand der §§ 176 Nr 1, 177 StGB’, GA (1956) 305, 307; Sick ‘Zweierlei
Recht für zweierlei Geschlecht: Wertungswidersprüche im Geschlechtsverhältnis am Beispiel des Sexualstrafrechts’,
ZStW 103 (1991) 43, 62–64.
SPRING 2004 Concepts of Intention in German Criminal Law 119
knows is involved in a particular course of action is simply irrelevant to the ques-
tion of criminal guilt (as distinct, perhaps, from sentencing). The common law
has never accepted such a requirement;141 it has been said that foreseeing and
welcoming a possible side-eVect of one’s actions can by itself never be intent.142
The superXuity of the dispositional criterion once a suYciently blameworthy
degree of foresight is reached is the reason why, as we have seen, the disposi-
tional criterion appears, on analysis, to be devoid of content: the German Courts
have never been able to give a convincing account of what it means to act in ear-
nest reliance, as distinct from a pious hope, on the non-occurrence of a possible
consequence; and they had to give up the requirement of hope once it proved to
be unworkable. The common law is right to take the view that is enough that the
accused foresaw a danger of a magnitude suYcient to deter those loyal to the
criminal law from acting at all; whether the accused liked being in that position
or not is of no importance.
The survival of a superXuous dispositional requirement in the German theory
of intention is no coincidence. It can be placed in the context of the broader
intellectual structure of German criminal law by reference to what might be
called historical systematics. The dispositional element of dolus eventualis is
meant to bring into consideration the accused’s level of personal guilt for the act
committed. Did she act eagerly or reluctantly, welcoming or at least not rejecting
a possible consequence of her actions, or did she act in the Wrm hope that things
would go well? But in considering this element as part of intention, German law
fails to take into account the last Wfty years of criminal law scholarship in
Germany. This is not surprising given that dolus eventualis was developed in the
nineteenth century.143
German criminal law has an elaborate and highly reWned system of describing
and analysing the general structure of criminal oVences. The basic division (sim-
plifying to some extent) is a tripartite one: Wrst, we ask whether the elements of
the oVence were committed; secondly, whether the conduct was justiWed by
defences; and, Wnally, whether the accused possessed a suYcient level of per-
sonal guilt to justify the imposition of punishment.144 It is hard to exaggerate the
importance of this structure especially in academic analyses of the law; and it has
also made its way into some parts of the Code and the jurisprudence. It is taken

141
DuV, Intention at 155; Williams, Mental Element at 20. Cf. Großmann, Grenze at 75.
142
Simester/Chan [1997] Crim LR 704, 710. Note also the clear separation of these concepts by Chisholm, ‘The
Structure of Intention’ (1970) 67 Journal of Philosophy 633, 645. This is not to say, of course, that feelings are
entirely irrelevant in all respects (to the question of sentencing in the criminal law context, for example); cf. Midg-
ley ‘The Objection to Systematic Humbug’ (1978) 53 Philosophy 147.
143
Prittwitz ‘Dolus eventualis und AVekt: ein Beitrag zur Kriminologie des Allgemeinen Teils des StGB’, GA
(1994) 454, 465f.
144
Cf., e.g. Fletcher ‘The Right and the Reasonable’, 98 Harv LR 949, 957f (1985); Jescheck, ‘Aufbau’ at 478.
Professor Fletcher translates this last requirement of Schuld as ‘attribution’ or ‘culpability’: Re-thinking at 455, 459,
466. Examples of considerations which might be relevant in this latter stage are whether the accused was insane or
labouring under an unavoidable error of law: Fletcher, Re-thinking at 467; Jescheck (1975) 8 Comp & Int LJ So Af
112, 115–19 (although the use of mens rea by Professor Jescheck, or perhaps rather his translator, to describe this is
wrong and misleading. Note, too, that unavoidable error of law is now dealt with under § 17 of the Code and
expressed there to be a question of Schuld.)
120 Oxford Journal of Legal Studies VOL. 24

very seriously, and debates are conducted at great length on possible changes to
it and the consequences they might have for the rest of the criminal law’s doctrine.
Only a sketch of it, and of its importance for the question of dolus eventualis, can
be given here.
Now since the development of the teleological theory of action by Hans
Welzel,145 it has been accepted, even by almost all non-adherents of his theory,146
that questions of intention are to be dealt with not in the third stage involving
personal guilt, but principally in considering whether the elements of the oVence
are satisWed: there are thus objective and subjective elements of an oVence.147
This represented a doctrinal shift of some magnitude within German law. It
should have aVected the concept of dolus eventualis developed in the nineteenth
century,148 when intention was considered to be a question of personal guilt—
the third stage—and the need was accordingly felt for some element which ena-
bled the conclusion to be drawn that the criminal act was the product of the
accused’s criminal disposition and was committed as a result of a suYciently
‘evil’ mind. That would in turn justify the conclusion that the accused was a
being worthy of punishment as he had acted with suYcient personal guilt to
justify punishment.149 This concept, however, should have been given up about
Wfty years ago when, as a result of its changed location in the scheme of criminal
guilt, intention ceased to require proof of a criminal disposition and personality.
That no such adjustment has been made to remove the dispositional element
inherent in dolus eventualis is an eloquent testimony to the strength of precedent
and of the ‘knowledge and desire’ formula in German law. The judgment made
over a hundred years ago that dolus eventualis is the product of a series of historical
errors150 has thus been strikingly conWrmed by later doctrinal developments.
Given all this, it is unsurprising, and merely the practical consequence of the
Xaws in the theory, that commentators continually complain that it is extraordi-
narily diYcult to prove that an accused acted with dolus eventualis151 (a problem
which is only made more serious by doubts about what exactly must be proved
to establish, for example, earnest reliance), and that, as a result, the Courts do

145
On which see Fletcher, Re-thinking at 434V.
146
Ross, über den Vorsatz at 11; Ziegert, Vorsatz at 25.
147
Herzberg, ‘Vorsatz’ at 52; Maurach/Zipf, Strafrecht at 301f; Morselli, ZStW 107, 324, 325f (acceptance in
other parts of the world); Ross, Über den Vorsatz at 11 (accepted in Germany but not Scandinavia); Schmoller, ÖJZ
(1982), 259, 260 (also accepted in Austria); Ziegert, Vorsatz at 137, 140.
148
Dörr, Grenze at 2f; Kaufmann, ZStW 70, 64, 67–69; Kohler, Die bewußte Fahrlässigkeit: eine strafrechtlich-phi-
losophische Untersuchung (Heidelberg: Carl Winter, 1982) at 297; Schmoller, ÖJZ (1982) 259, 261f; Weigend
‘Zwischen Vorsatz und Fahrlässigkeit’, ZStW 93 (1981) 657, 662; Ziegert, Vorsatz at 25.
149
Rosenfeld ‘Schuld und Vorsatz im von Lisztschen Lehrbuch’, ZStW 32 (1911) 466. Cf. now Boldt ‘Zur
Struktur der Fahrlässigkeits-Tat’, ZStW 68 (1956) 335, 372.
150
Huther ‘Über den Vorsatz des Reichsstrafgesetzbuches’, GS 56 (1899) 240, 243. Cf. also Liepmann, Reform
at 80.
151
von Bar, ZStW 18, 534, 551f; Geppert, Jura 1986, 610, 612; Herzberg ‘Bedingter Vorsatz und objektive
Zurechnung beim Geschlechtsverkehr des AIDS-InWzierten—AG München, NJW 1987, 2314’, JuS (1987) 777,
779; Hassemer, ‘Kennzeichen’ at 301; Liepmann, Reform at 78; Mueller ‘Eine amerikanische Stellungnahme zum
Entwurf eines Strafgesetzbuches E 1960’, ZStW 73 (1961) 297, 321; Puppe, Vorsatz at 72; ScheZer, Jura 1995,
349, 354. Contra: von Liszt, ‘Die Behandlung des dolus eventualis im Strafrecht und Strafproceß’ in Schriftführer-
Amt (ed.), Verhandlungen Band I at 115; Schloß, Der Dolus eventualis at 60f.
SPRING 2004 Concepts of Intention in German Criminal Law 121
not really apply the law in practice,152 looking instead chieXy to the accused’s
knowledge of the possible consequences of her conduct153 (as happened in the
Doner Shop Case itself). The lack of rigorous thought supporting the theory pro-
duces a lack of clarity154 and inconsistency155 in the case law.

B. Psychologically-based Objections
Some readers will, it is hoped, already have been troubled by the easy dualist
assumption of German law156 that there exists in the intellectual equipment of
accused persons two distinct Welds of realization of a risk and assessment of
one’s disposition towards it. This objection may be divided into two sub-
objections; the Wrst concerns the apparent assumption about the time spent by
accused persons in planning their crimes.
Many crimes are, of course, planned. The example used earlier was a bank
robbery. Other crimes involve a detailed assessment of the risks involved, such as
a decision to take delivery of a briefcase which one suspects may well contain
drugs.157 The overtaking driver is another example of someone who is likely to
weigh up the risks carefully before acting. But by no means all crimes are like
that. As is well known, many are committed on the spur of the moment or under
the inXuence either of some sort of drug or of overwhelming emotional impulses.
Now of course the directly intended results of such crimes will not need to be
dealt with as cases of dolus eventualis at all, as Absicht will be present, although
even here diYculties may be encountered in proving that the inevitable conse-
quence of the accused’s actions really ‘sank in’.158 As Leader-Elliott has pointed
out,159 a process akin to negotiation with the accused, some time after the event,
may have to take place before he is brought to acknowledge what his intention
was (or perhaps more accurately, what he must have intended, or even failed to
have avoided intending). But when we move to consider consequences of an
actor’s course of action which are not part of her Absicht, but merely foreseen as
a possible consequence of it, it will be a rare case in which the spur-of-the-
moment actor can be said to have formed the sort of dispositional attitude which
152
Gordon/Christie, Criminal Law at 276; Mannheim at 82, 93. The Spanish Courts have expressly recognized
this and substantially modiWed the theory as a result: see NStZ (1994) 37, 38.
153
Bleckmann, Strafrechtsdogmatik at 21f; Dörr, Grenze at 128; Frisch, Vorsatz und Risiko at 310, 315–17;
Geppert, Jura 1986, 610, 612; Großmann, Grenze at 93; Herzberg, JuS (1987) 777, 779–81; Herzberg, JZ (1988)
573, 575, 638; Jakobs, Strafrecht at 275; Kargl, Der strafrechtliche Vorsatz at 58; Krümpelmann, ‘Empirie’ at 23f;
Morkel ‘Abgrenzung zwischen vorsätzlicher und fahrlässiger Straftat’, NStZ (1981) 176, 178f; Puppe, Vorsatz at
35f; Ross, Über den Vorsatz at 82, 102, 107, 113f; ScheZer, Jura 1995, 349, 354; Schmidhäuser, Strafrecht at 345;
Volk, ‘Dolus ex re’ at 621f; Zielinski in Alternativ-Kommentar at 477.
154
Großmann, Grenze at 91; von Hippel, Grenze at 100f; Kindhäuser, ZStW 96, 1, 2; Liepmann, Reform at 76;
Mayer, Strafrecht at 122; Puppe, NStZ (1987) 363; Schünemann, ‘Vom philologischen’ at 366.
155
Bauer, ‘Die Abgrenzung’ at 168f; Engisch, Untersuchungen at 92f; Herzberg, ‘Der Vorsatz’ at 75–77;
Herzberg, JuS (1986) 249, 252; von Liszt, ‘Die Behandlung’ at 116–23; Mayer, Strafrecht at 122; Morkel, NStZ
(1981) 176, 177; Puppe, ZStW 103, 1, 9; Roxin, JuS (1964) 53, 54; Schumann, JZ (1989) 427, 429f;
Weißenborn, ‘Der unbestimmte, eventuelle Dolus’ GS 50 (1895) 195, 212f; Ziegert, Vorsatz at 102.
156
Cf. Cane ‘Fleeting Mental States’ [2000] CLJ 273, 275–77; DuV, Intention at 28–30.
157
Michaels, 71 So Cal LR 953, 954f (1998).
158
Ashworth, Principles at 169, 179.
159
‘Negotiating Intentions’ at 75–78.
122 Oxford Journal of Legal Studies VOL. 24

dolus eventualis demands.160 Take the example of a person who, in a drunken

rage, suddenly lashes out at a tormentor, damaging some valuable property as a
result (although that was not inevitable or foreseen to be so). Such a person will
have no occasion to consider, and will almost certainly be quite unable to con-
sider, whether he reconciles himself to the destruction of the property or, on the
other hand, earnestly relies on the possibility of its preservation. Doubtless such
a person will not earnestly rely on that possibility, but we cannot say that, as a
result, he acted with dolus eventualis because he will not have reconciled himself
to its destruction either. He will have just no dispositional attitude to this possi-
bility at all: the time and capacity to reXect on this question are simply not there.
An empirical study of youthful murderers has come to exactly this conclusion.161
In such cases, then, the theory of dolus eventualis sends us to look for something
which we are not entitled to expect to Wnd, and, as a result, the Courts are com-
pelled to attribute a Wctional disposition to the accused162 (as, again, appears to
have happened in the Doner Shop Case).
There is a further problem here: there is no reason why an oVender who does
have a disposition of some sort should not vary in her disposition towards possi-
ble consequences of her action over time, and even during the planning and
commission of an oVence. After all, the action to which the disposition relates is
by deWnition not her aim and thus not in the centre of her attention. Nor is it
really possible (except perhaps in exceptional cases which involve one’s own
interests—the overtaking driver—or those of people to whom one is close, or in
relation to particularly scrupulous persons) to identify constant mental states
such as reconciling oneself to a risk or earnest reliance on its non-occurrence.
There is a false dichotomy here, an assumption that all accused persons will have
one or the other mental state—to the exclusion of the other, allegedly ‘opposite’
mental state, without change and, for that matter, Überhaupt.163 Further, actors
who give the matter some thought may be ambivalent about possible conse-
quences of their actions; their psychological state may not be able to be
described in such simple terms.164 Disposition is a complex psychological phe-
nomenon, sometimes involving contradictory states of mind, not a simple matter
of yes or no, on or oV.165
160
Cf. DuV, Intention at 43.
161
Lempp, Jugendliche Mörder: eine Darstellung an achtzig vollendeten und versuchten Tötungsdelikten von Jugendlichen
und Heranwachsenden (Bern: Hans Huber, 1977) at 174f.
162
Germann, ‘Vorsatzprobleme’ at 372–74; Gillett ‘Moral Responsibility and the Brain: Jurisprudential ReXec-
tions’ (2001) 8 Canterbury LR 1, 1; Kargl, Der strafrechtliche Vorsatz auf der Basis der kognitiven Handlungstheorie
(Frankfurt am Main: Peter Lang, 1993) at 21–30; Liepmann, Reform at 79f; Prittwitz, GA (1994) 454, 462; Puppe,
ZStW 103, 1, 5, 11, 31; Schewe, ‘Subjektiver Tatbestand und Beurteilung der Zurechnungsfähigkeit’ in Warda
et al. (eds), Festschrift für Richard Lange zum 70. Geburtstag (Berlin: Walter de Gruyter, 1976) at 699f; Schild, ‘Der
strafrechtliche Vorsatz’ at 132; Schroth, Vorsatz als Aneignung der unrechtskonstituierenden Merkmale (Frankfurt am
Main: Peter Lang, 1994) at 108; Volk, ‘Dolus ex re’ in Haft et al. (eds), Strafgerechtigkeit: Festschrift für Arthur
Kaufmann zum 70. Geburtstag (Heidelberg: C.F. Müller, 1993) at 621f; Ziegert, Vorsatz at 22–29, 104.
163
Schmidhäuser, GA (1957) 305, 306.
164
Herzberg, JuS (1986) 249, 255; Jakobs, Strafrecht at 264, 273f; Krümpelmann, ‘Empirie und Normativität in
den RechtsbegriVen der Willenssteuerung’ in Hommers (ed.), Perspektiven der Rechtspsychologie (Göttingen: Verlag
für Psychologie, 1991) at 25f.
165
Kargl, Der strafrechtliche Vorsatz at 34; Krümpelmann, ‘Empirie’ at 25f; Schünemann, ‘Vom philologischen’ at 36f.
SPRING 2004 Concepts of Intention in German Criminal Law 123
Take, for example, a person in the position of Mrs Hyam,166 who says that all
she wanted to do was to frighten a rival, not to kill her or anyone else, and who
would have been horriWed had she known that this result would ensue before she
acted. There is no reason why we should disbelieve this statement in the sense of
considering it to be a lie. But motives can operate at a number of levels. Who is
to say that a Hyam-like person was not, at the time of the act, at least sub-con-
sciously reconciled to the possibility of death or grievous bodily harm to her
rival?167 If that is so, should we take her sub-conscious disposition into account
(assuming that we can identify it), or do we ignore it in favour of her truthfully
expressed, but possibly incomplete account of her ‘surface’ state of mind at the
time? The ruling doctrine of dolus eventualis barely touches on this question.168
It will come as no surprise, after all of this, that the second sub-objection to
the theory of dolus eventualis is its primitive psychological assumptions and lack
of contact with psychology and psychiatry. That is not to say that the legal con-
ception of intention has to be entirely dictated by those disciplines; certainly the
common law’s rather rough-and-ready concept of intention is not.169 However, a
theory as elaborate as dolus eventualis, which relies on such Wne distinctions, can-
not be taken seriously if developed in ignorance of psychology and psychiatry. As
was noted, dolus eventualis, which is supposed to be a description of human men-
tal states, was developed in the nineteenth century. No serious attempt has been
made to re-assess it in the light of the explosion of psychological knowledge in
the twentieth century.170 Nor has there been any signiWcant contribution from
other disciplines.171 The basic dualist assumption—that there is a distinction
between cognitive and volitional processes—has not been the subject of any
form of testing, or if it has the criminal law scholars know nothing of it.172
Indeed, there is a startling absence of communication between lawyers and psy-
chologists on this point; lawyers have developed their own psychology.173 Given
that the writer has no psychological training, all that can be said here about this
state of aVairs is that it is amateurish, solipsistic and not an acceptable position
for a theory that is so elaborate and is also intended to be taken seriously as a
description of mental states.
It is therefore quite unsurprising that the Courts have not been able to say
with any precision at all what is meant by an earnest reliance on the non-occurrence
of a result, or to provide any criterion dividing it, as a mental state, from a mere

166
Hyam v DPP [1975] AC 55. See further Leader-Elliott, ‘Negotiating Intentions’ at 99f.
167
Another, excellent illustration of this point is provided by Moore, Law and Psychiatry at 322–31.
168
Note, however, the concept of Mitbewußtsein developed by Platzgummer, Die Bewußtseinsform des Vorsatzes:
eine strafrechtsdogmatische Untersuchung auf psychologischer Grundlage (Wien: Springer, 1964), although that is mainly
concerned with the accused’s knowledge of facts, not his disposition.
169
Gillett (2001) 8 Canterbury LR 1, 12. Cf. Moore, Law and Psychiatry at 1.
170
See, however, above, n 168 for the chief exception to this, which does not however aVect the point made in
the text.
171
Cf. Lacey ‘A Clear Concept of Intention: Elusive or Illusory?’ (1993) 56 MLR 621, 642.
172
Cf. Kargl, Der strafrechtliche Vorsatz at 58, 67; Schmoller, ÖJZ (1982) 259, 261.
173
von Hippel, ‘Vorsatz’ at 503; Krümpelmann, ‘Empirie’ at 13; Schmidhäuser, VorsatzbegriV und BegriVsjuris-
prudenz im Strafrecht (Tübingen: J.C.B. Mohr, 1968) at 10.
124 Oxford Journal of Legal Studies VOL. 24

hope. The concepts being used are devoid of content because they are not
related in any way to the real (and very complex) human mental states which
they purport to describe. The inability to describe what earnest reliance consists
of and how it could be distinguished from a vague hope does not merely expose
the irrelevance of disposition to the task of the criminal Courts; it can be seen
that that inability is the result of a basic conceptual Xaw in the theory and its
extreme over-simpliWcation of complex mental realities. Rather, dolus eventualis
is a Court’s construction of a Wctional mental state based on its view of how
severely the accused should be punished and the degree of danger which she
created. It is not surprising, then, that we should be hard pressed to say (and the
Courts do not say) how a mental state of earnest reliance could be demonstrated in
the Gas Leak Case or in the Doner Shop Case—unless, revealingly, the accused
modiWed his act to reduce the objective level of danger. This exposes the fact that
the theory, because it makes us attempt to Wnd something which is probably not
present, is reduced to a theory involving an assessment of objective probabilities.

6. Conclusions
In the light of all this, it might be more accurate to suggest that the concept of
dolus eventualis consists partly of a mental state (realization of a possibility) and
partly of a Court’s assessment, disguised as an investigation into the disposition of
an actor, of whether the actor is worthy of punishment as an intentional malefac-
tor.174 The lack of content in the distinction between earnest reliance and reconcil-
ing oneself to a consequence, and its almost inevitable absence in the many cases
involving acting on the spur of the moment or while intoxicated, make it easy for
the Courts to substitute their view of what the actor’s, or their own, dispositional
state ‘must’ have been for the actual dispositional state (if any) of the accused.
That being so, the theory of dolus eventualis does not enable a truly subjective-
fault-based assessment of the actor’s conduct at all—except to the extent that the
actor must have foreseen a result as possible, which, it might be thought, is by
itself far too low a threshold for the imposition of punishment based on intention.
This is not, of course, to say that the common law’s concept of intention is
entirely clear, although the saving diVerence between it (and recklessness) and
dolus eventualis consists in the common law’s lack of interest in the accused’s
emotional disposition, which, as we have seen, is not a sensible criterion to dis-
tinguish between intention and negligence. Nor is this to say that there can never
be such a mental state as the dispositional component of dolus eventualis postulates,
especially in crimes which are planned in advance in some detail. Accordingly,
the present author would have no great objections to the recent proposal by an
American scholar175 to recognize ‘acceptance’ of a possibility, which is based to

174
Geppert, Jura 1986, 610, 612.
175
Michaels, 71 So Cal LR 953 (1998).
SPRING 2004 Concepts of Intention in German Criminal Law 125
some extent on the German concept of dolus eventualis,176 as equivalent to
knowledge and/or recklessness in cases in which such a mental state can actually
be identiWed. Indeed, this proposal seems to be broadly similar to the concept of
wilful blindness equivalent to knowledge of probability, and thus to recklessness,
as was considered, for example, by the High Court of Australia in R v Crabbe.177
But it would be a grave mistake to generalize from such cases and to make
acceptance of a risk a mandatory requirement of the identiWcation of intentional
or reckless behaviour. To the mind/body distinction, which ‘many philosophers
and some legal scholars have rejected . . . as ‘implausibly mechanistic’’,178 a fur-
ther element of dualism should not be added, at least not until some convincing
psychological evidence of the existence of a distinction between cognitive and
dispositional processes, and its relevance to the task at hand, is produced.
The concept of dolus eventualis is, on analysis, a curious amalgam of over-the-
orization and under-theorization—an amalgam such as one might perhaps
expect in a legal order which owes its criminal law not only to the practical needs
and experience of the law in the day-to-day operations of the Courts, but also, in
large measure, to academic speculation, divorced from other Welds of scholarly
enquiry, on the nature of criminal guilt. The concept is over-theorized because
of its dogmatic insistence on the elements of knowledge and disposition as a nec-
essary part of the concept of intention. This in turn leads to an under-theorization
of the dispositional element once it is seen that it is not actually present in many
crimes which it is nevertheless desired to treat as intentional. This under-theori-
zation expresses itself most acutely in the failure to identify what is meant by
earnest reliance and reconciliation with a possibility.
German scholars sometimes state that the common law, from their point of
view, is a system which seems disorganized and in need of a theoretical founda-
tion and of an apparatus for analysing criminal guilt systematically.179 The
present author has learnt and beneWted in many cases from the gift of German
academic criminal lawyers for systematic analysis. But from the point of view
developed here, it may be said that a lack of elaborate theoretical structure and
of a tradition of developing legal concepts in accordance with a priori scholarly
assumptions about the nature of things can have advantages.180 After all, it is a
rare case in which an elaborate deWnition of intention is actually required in
practice.181

176
Michaels, 71 So Cal LR 953, 1024–27 (1998). There is not space here to deal with Frank’s formulae, which
that author also considers. It suYces to say that they, too, are by no means without diYculties; their day as an all-
purpose test for dolus eventualis has in fact long passed.
177
(1985) 156 CLR 464.
178
De Gruchy v R [2002] HCA 33, [50] citing NaYne/Owens/Williams, ‘The Intention Project’ in NaYne/
Owens/Williams (eds), Intention at 7.
179
Behrendt, Der Vorsatz im englischen und amerikanischen Strafrecht (doctoral thesis, Freiburg im Breisgau, 1969)
at 1f, 17, 252f (with many further references and a concession that, despite the lack of a structure, the common law
manages quite well). Cf. Fletcher, 98 Harv LR 949, 955–57 (1985).
180
Cf. Horder ‘Intention in the Criminal Law—A Rejoinder’ (1995) 58 MLR 678, 687; Norrie [1989] Crim LR
793, 806f.
181
Simester/Chan [1987] Crim LR 704, 705.
126 Oxford Journal of Legal Studies VOL. 24

Just as it may be questioned whether the concept of dolus eventualis is really a

concept of subjective intention at all, it may be asked whether the common law’s
concept of intention and recklessness is in fact the product of a quite diVerent
universe of thought from that which produced the concept of dolus eventualis.
No-one would wish to play down the diYculties involved in the common law’s
concepts of intention and recklessness.182 But, whatever else may be said of
them, they are not obviously attempts to determine the nature of intention from
a set of a priori postulates about what intention consists in, which, on analysis,
turn out to be wanting in practical common sense. In this respect, the diVerent
legal histories of Germany (which, as mentioned in the introduction, may be
taken as the epitome of Continental legal thought in this respect) and the com-
mon-law world are not merely matters of antiquarian or scholarly interest, but
have a substantial eVect even today on the content of the law. They lead not
only to a fundamental diVerence in the content of concepts, but a fundamental
diVerence in the way in which concepts are developed. This makes the concept
of dolus eventualis not merely a questionable one, but one which is foreign to the
essentially practical spirit of the common law. It may also explain why ‘[p]ractis-
ing lawyers seem happier’183 with the common law’s concept of intention than
their academic counterparts—and, it may be added, than many scholars in
Germany are with the German concept of intention.
The author is conscious of the possibility that his common-law background
may aVect his assessment of the German concept. However, it is worth noting
that some German scholars have in fact proposed the adoption of recklessness
on the common-law model as a better alternative to the existing law.184 Moreover,
the Rome Statute of the International Criminal Court, in its deWnition of intention,
does not mention the concept of dolus eventualis and cannot be interpreted so as
to yield such a concept.185 And the fundamental Xaws in the concept of dolus
eventualis cannot be overlooked, and, it is submitted, have not been exaggerated
here.
One Wnal point should be made before closing. At least as long as juries continue
to exist in the common-law world, dolus eventualis is not an appropriate discrimen
between intention and negligence. Sometimes juries have trouble with concepts
such as intention or recklessness, and ask for deWnitions or further elucidation
from the trial Judge. One does not need much imagination to think of the diY-
culties which a conscientious jury would have in deciding, according to its oath,
whether an accused reconciled himself to a possibility or, alternatively, earnestly
relied on its non-occurrence. What further instructions could be given to a jury

182
See, e.g. Leader-Elliott, ‘Negotiating Intentions’ at 102. I am not dealing here with the competing claims of
Caldwell and Cunningham reckless, which have been noticed in Germany as well (Bleckmann, Strafrechtsdogmatik at
33–35).
183
Norrie [1989] Crim LR 793, 793. See also Buxton ‘Some Simple Thoughts on Intention’ [1988] Crim LR
484, 497.
184
ScheZer, Jura 1995, 349, 356; Weigend, ZStW 93, 657, 697–700; see also Krug, Über dolus at 78f.
185
Eser, ‘Mental Elements—Mistake of Fact and Mistake of Law’ in Cassese/Gaeta/Jones (eds), The Rome Statute
of the International Criminal Court: A Commentary Vol. I (Oxford UP, 2002) at 932f.
SPRING 2004 Concepts of Intention in German Criminal Law 127
on the meaning of these phrases? What response could be given to a question
asking how the diVerence is constituted or where in the evidence the jury is to
look for it? As we have seen, highly trained Judges in Germany have been unable
to provide a convincing account, or indeed any account at all, of the diVerence.
There is no reason to expect that juries would do any better. A Xawed theory,
which Judges can nevertheless appear to apply by sleight of hand, should not be
inXicted upon laypeople bound by their oaths to decide according to the law
explained to them by the Judge.
It is interesting to note in this respect that jury trial existed in Germany until
1924.186 Available data on the manner in which juries coped with the concept of
dolus eventualis are limited, to a great extent, no doubt, owing to the rules that a
Judge’s directions on the law were not binding upon the jury and were not to be
recorded.187 Nevertheless, one does Wnd general statements in the sources from
that period to the general eVect that jurors and Judges coped with the concept of
intention quite well, without recourse to elaborate theories such as dolus eventua-
lis.188 This is an interesting insight into the diVerence between law-in-the-books
and law-in-practice from a long-gone period, which nevertheless is not dissimilar
to what one hears informally about the real method of determining intention in
modern German trial Courts today. It is a great shame that there appears to be
no study of this question written when jury trials existed; nor, apparently, any
such study from Austria, in which a form of jury trial has been reinstated for seri-
ous and ‘political’ oVences189 and in which there exists a statutory deWnition of
intention which mentions a concept of dolus eventualis expressly.190 That,
perhaps, is a question for another day. The conclusion of this investigation of the
concept of dolus eventualis is that it is not a suitable concept for common-law
jurisdictions or, indeed, one which makes much sense at all.

186
See Grünhut, ‘English Law and History of Continental Legislation’ (1938) 20 Jo Comp Leg & Int Law (3rd)
165, 168f; Mannheim ‘Trial by Jury in the Modern Continental Criminal Law’ (1937) 53 LQR 99. Schmidhäuser,
VorsatzbegriV at 11, expresses sympathy for the predicament of lay Judges faced with the current deWnition of inten-
tion, but there appears to be no full-scale study of their understanding of it either.
187
Dalcke, Fragestellung und Verdikt im schwurgerichtlichen Verfahren auf Grund der Bestimmungen der Deutschen
Strafprozeßordnung und der Rechtsprechung des Reichsgerichts (Berlin, H.W. Müller, 2nd edn, 1898) at 116; Löwe/
Rosenberg, StPO-Kommentar (Berlin: Walter de Gruyter, 15th edn, 1922) at 664; Mannheim (1937) 53 LQR 99,
111.
188
Bekker, Theorie at 457; Stenglein, ‘Behandlung’ at 106; Zacke, Fragestellung und Wahrsprüche in den
Preußischen Schwurgerichten nach der Verordnung vom 3. Januar 1849 und dem Gesetz vom 3. Mai 1852 in der prak-
tischen Gestaltung dargestellt und kritisirt (Leipzig: Albert Fritsch, 1867) at 245. See also the very interesting case of
RGSt 12, 337, in which a very simpliWed form of dolus eventualis was put to the jury.
189
§ 14 of the Austrian Code of Criminal Procedure.
190
§ 5 of the Austrian Criminal Code.