Revealing criminal motives: Legal cognition between science, rhetoric and criminology

If crime is the most reprehensible betrayal of social bonds and expectations, and therefore deserves the most severe legal sanction (punishment), the assessment of criminal responsibility must be exceptionally accurate. At trial, jurists must evaluate not only the rational dimension of conduct, as expressed through the defendant’s (presumed) intention; they are also required to address and, as far as possible, to reveal the defendant’s underlying motives, no matter how “irrational” these may appear, since they arise from emotions, feelings, passions, and moods. In doing so, jurists should be aware that such motives are grasped through the interplay between the conceptualisations provided by criminal law, as elaborated and systematised by legal doctrine in the form of criminal science, and the set of arguments discovered, developed and discussed by forensic rhetoric on the basis of common sense, as filtered and organised through a criminological approach grounded in criminal types. Yet, as far as concerns us here, these “irrational” motives — complementary to the rational intention first addressed at trial — make particularly clear how the application of criminal law in the end relies on otherwise implicit forms of social knowledge, precisely as conveyed by criminal science, forensic rhetoric, and criminology.