Elementos subjetivos nos sistemas causalista, finalista e funcionalista

Abstract

This article analyses the subjective elements of the crime (intent and negligence) in the causalist, finalist and functional theories, having as the main purpose make approximations and distinctions with regard to these elements, with a special focus on conscious negligence and the eventual intent. At first, an incursion is carried out, under a general perspective, in each of these theories, for a better understanding of them. Secondly, we will define the approximations and differentiations between the subjective elements in the causalist, finalist and functional theories. A qualitative approach was employed in order to examine each of these systems with special regard to the subjective elements of the theory of crime. The theory of crime underwent a structural disruption in the transition from causalism to finalism, especially due to the replacement of the subjective element from the culpability to the criminal typicality. On the other hand, in the transition from finalism to the functional system, although the subjective element remains in the scope of the criminal typicality, a theoretical turn takes place concerning the incorporation of criminal policy criteria in the theory of crime. With respect to the distinction between intent and negligence, neoclassical causalism and finalism tend to establish such differentiation on similar grounds. As for the functional theory, a small change is noticeable in the criteria addopted for distinguishing intent and negligence, as a result of the increasing concern with the protection of legal interests.