TY - JOUR
AU - Wallerstein, Shlomit
AB - The criminal law doctrine of oblique intent was developed at common law to deal with situations in which the agent acted without purpose or desire but where the harmful result of his conduct was foreseen at a very high probability. In its most recent form the doctrine holds that the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that [the harmful result] was a virtual certainty (barring some unforeseen intervention) as a result of the defendants actions and that the defendant appreciated that such was the case. Yet, the doctrine does not provide any guidance as to which moral consideration should be taken into account in deciding whether intention may be found. Through a comparison with the parallel doctrine of psik reishei developed in Jewish law as far back as 200 CE the article offers a way for the English doctrine to account for the various moral positions of the perpetrator or the moral character of his actions that such scenarios may raise. The article argues that some cases which are currently dealt with by the doctrine of oblique intent ought to be discussed in the context of actus reus, and any moral considerations ought to be ignored. In all other instances, and based on the understanding that oblique intent is not (direct) intent but rather a claim for moral equivalence, a classification based on the desirability-of-the-results has the potential to replace the general discretion currently left for the juries and help ensure a more consistent assessment and better ex-ante guidance of behaviour.
TI - Oblique Intent in English and Jewish Law
JO - Oxford Journal of Law and Religion
DO - 10.1093/ojlr/rwt044
DA - 2014-06-25
UR - https://www.deepdyve.com/lp/oxford-university-press/oblique-intent-in-english-and-jewish-law-DaErlydow9
SP - 258
EP - 285
VL - 3
IS - 2
DP - DeepDyve
ER -