The Normative Concept of Mens Rea—A New Development in Germany

Abstract

THE doctrine of Finalismus, or the doctrine of the purpose-orientated act. was evolved in German criminal law round about 1930, and has since been adopted by the majority of German writers on criminal law.' The doctrine has brought about a radical re-appraisal of such fundamental concepts as the criminal act and mens rea or fault in German criminal law science. It has already received the attention of criminal lawyers from the Italian, Spanish and French-speaking legal systems, yet, as far as this author could ascertain, there is a glaring absence of even an introductory discussion of this important doctrine in the legal literature of the English-speaking countries.2 A comprehensive critical analysis of this doctrine is beyond the scope of the present article. What is envisaged, however, is to focus attention on the important conclusions reached by the followers of this doctrine regarding the mens rea of a wrongdoer. This may be of interest to English lawyers grappling with that rather unruly horse in English criminal law, namely the concept of mens rea. To understand the true meaning of mens rea according to the doctrine of Finalismus, it is first of all necessary to explain briefly (as far as this is possible) the contents of the doctrine itself.