The concept of malice in criminal law. Towards a definitive abandonment of the idea of malice as a mental state.

Abstract

In the light of the reflections of comparative law, especially German law, this study makes a "syntactic" approach to the concept of malice, which then gives way to a semantic examination of it, and to the study of this notion in the light of the theory of probability; it also proposes several rules for the practical application of the proposed concept, and finally, it points out a series of systematic corrections. With this starting point, an idea of malice is postulated that is completely normative for Argentine law and that discards any volitional component in it, thus abandoning the notion of malice as a mental state.