intent. In Germany, almost any likelihood suffices but small chances are considered
not to be accepted by the defendant and therefore negate thedolus eventualis. In the
Netherlands, the chance that the risk will materialize must be considerable. This
different threshold may lead to a significant change in outcomes.
Recklessness Common law systems, such as the English system, do not know the
concept of conditional intent. They tend to apply a separatemens rearequirement
for risk taking, in between intent and negligence, called recklessness. Recklessness
denotes the conscious taking of an unjustified risk.
An important difference between conditional intent and recklessness is that the
latter does not require the volitional element of acceptance. It only needs to be
proven that the defendant was aware of a risk, which is, in the circumstances known
to him, unreasonable to take. Whereas conditional intent focuses on theattitudeof
the defendant (accepting the risk or taking it for granted), recklessness focuses on
what he knew, hisawareness. Cases of risk taking that would not lead in continental
legal systems to a liability based on conditional intent could therefore lead to
reckless liability in England.
For instance, take again the example of the two construction workers who dig a
hole and fail to take appropriate safety measures. If they omit to do this while
believing that no one would fall in the pit and someone gets injured anyways, this
could in England be considered reckless behavior. However, in Germany or the
Netherlands, this bad risk taxation can hardly be defined as conditional intent. What
is lacking here is the volitional element ofdolus eventualis, i.e. the acceptance of
the risk. In other words, only if they would have reconciled themselves with the risk
that someone could get hurt—instead of just believing nothing bad would happen—
would there be conditional intent. Now, according to Dutch and German laws, there
is only a form of negligence.
7.6.3 Negligence
Negligence (culpa) is the most normative form ofmens reaand is primarily based
on a violation of the required duty of care that causes a result prohibited by criminal
law. Negligence may be expressed in many different ways. The use of terms as
“carelessness” and “lack of due care” or “lack of reasonable care” indicate that
negligence is required as a condition for criminal liability.
Conscious and Unconscious Negligence Most continental legal systems distin-
guish between conscious and unconscious deviation from the required duty of care.
When the agent wrongfully does not consider the consequences of his conduct, this
is called unconscious negligence. The agent is not conscious of a risk, but he should
and could have been aware of it.
138 J. Keiler et al.