Intention in Tort Law

John Finnis

in Intention and Identity

Published in print April 2011 | ISBN: 9780199580064
Published online September 2011 | e-ISBN: 9780191729386 | DOI:
Intention in Tort Law

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What is intention? Why is it morally significant? Why and how is intent to harm a per se wrong-making factor in any conduct? The answers depend on distinguishing intent from desire, behaviour from action, and intended upshot from (even welcome) side effect. Intention is the adopting of a proposal shaped in deliberation and preferred to any available alternative proposal (option), and includes (only) everything included, whether as end or as means, in the proposal. All this is traced through examination of leading doctrines and cases in the Anglo-American law of torts. Special attention is given to the mantrap cases, and to Richard Posner's, in his Economic Analysis of Law, mishandling of them. Also to the famous English cases of Bradford v Pickles (1895) and Allen v Flood (1898), and to the different course taken in American law (e.g., Tuttle v Buck (1909)). An endnote updates the examination of the doctrine that intent to harm (malice) does not render otherwise lawful conduct tortuous, by reference to OBG v Allan (2007).

Keywords: intention; desire; foresight; malice; Posner; mantraps; side effects; Bradford v Pickles

Chapter.  11699 words. 

Subjects: Jurisprudence and Philosophy of Law

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