Legal Theory Lexicon: Intention

Claud Mccoid


Was it intentional? Did he intend to kill? What have been the initial intentions of the framers of the United States Structure?

“Intention” is an significant notion for legal concept. On the one particular hand, “intention” figures prominently in theories of felony regulation and tort regulation. On the other hand, constitutional concept is interested in the thought of “the initial intentions of the framers” and statutory interpretation occasionally appears to be to the “intentions of the legislature” or “congressional intent.”  This publish delivers a really rough and all set introduction to the thought of “intent” and associated notions of “intentionality” for regulation learners (specially initially calendar year regulation learners) with an curiosity in legal concept.

A Note on Terminology

Legal concept is mainly anxious with “intentions” of the standard form: “The defendant meant to kill” or “The Framers meant ‘commerce’ to exclude ‘agriculture’ in the commerce clause.”–works by using like these include the standard legal use of “intention.” There are, however, two associated philosophical principles that may possibly be puzzled with this feeling of intention. Philosophers use the word “intentionality” to refer to the ability of psychological states to stand for things, properties and states of affairs: in this special feeling, the class of “intentional psychological states” is really significant–which include perceptual psychological states for example. And philosophers also have a additional technical notion of “intensionality”–spelled with an “s” alternatively than a “t” right after the next “n”–that is utilised to refer to an significant sensible function of terms and sentences. A sentence is an intensional context if its fact price is delicate to the substitution of referentially equal descriptions: really don’t be concerned, the jargon will be spelled out!.  Everyday intentions show intentionality, intention sentences are intensional–consequently the prospective for confusion.

This publish focuses on the most significant roles that “intention” plays in regulation and legal concept.

Actions Are Supposed Less than a Description

Jane hears a knock on the door and sees someone in the uniform of a deal supply corporation with a deal. She invites the individual in. She does not know that the individual she has invited into her dwelling is “the Westside rapist”–a serial rapist who disguises himself as a supply individual. If we request her, did you intend to permit “him” in, her solution will rely on the description we give. Did you intend to permit the male in the supply uniform in? Her solution will be “Indeed.” Did you intend to permit the Westside rapist in? Her solution will be “No.” The lesson of this example is that actions are intentional less than a description. The really similar specific was both “the male in the supply uniform” and “the Westside rapist,” but Jane’s intentions have been not the similar with respect to the two various descriptions.

Transparent and Opaque Contexts

Actions are intentional less than a description. Mainly because of that reality, philosophers say that intention is a referentially opaque context. Boy, that is mouthful. What does that indicate? Let us get a context that does not include intentionality. The sentence “The Westside rapist entered Jane’s household” does not include an attribution of an intention. And we can substitute a various description for “Westside rapist” with no influencing the fact price of the assertion. Assuming that the Westside rapist did enter Jane’s household and that his identify was Norman Heathcliff, then all of the subsequent statements would be true:

The Westside rapist entered Jane’s household.–Genuine. Norman Heathcliff entered Jane’s household.–Genuine. The male in the supply uniform entered Jane’s household.–Genuine. The male on he porch entered Jane’s household.–Genuine.

We can substitute any description that refers to “Norman Heathcliff” and the fact price of the sentence is unaffected. A sentence that has this home is termed “referentially clear” or “an extensional context.”

Now, let’s go back to intention. Suppose that Jane lets the male into her household, but does not know that he is the Westside rapist or that he is named “Norman Heathcliff.” Real truth price now will fluctuate dependent on how the male is explained :

Jane meant to permit the male in the supply uniform into her household.–Genuine. Jane meant to permit the Westside rapist into her household.–Untrue. Jane meant to permit Norman Heathcliff into her household.–Untrue. Jane meant to permit the male on the porch into her household.–Genuine.

But the four descriptions all refer to the similar male. Mainly because you simply cannot substitute referentially equal descriptions into expressions of intentions, we say that such expressions are “referentially opaque” or that they are “intensional” contexts. (Notice once more that intensional was spelled with an “s”.)

The difference involving opaque and clear contexts is elementary to the philosophy of language, and this difference figures prominently in philosophical crafting about “intention.” This may possibly all sound a little bit abstract, but this difference is really worth mastering. If you really don’t know it, you will not be equipped to stick to any actually innovative dialogue about intention.

What variation does the difference involving referentially clear and opaque contexts make to the regulation?  That is a massive issue, but in this article is one particular example. Some theories of constitutional or statutory interpretation assert that thoughts about the applicability of a legal rule can be settled by reference to the intentions of the authors of the statute. A person line of attack on this view focuses on the issue irrespective of whether a collective system (e.g. a legislature or constitutional conference) has intentions in the similar feeling as does an specific. Placing that objection to the facet, the difference involving opaque and clear contexts can be utilised to make a various form of objection. Suppose that we have only one particular legislator, Rex, and that Rex enacts a legal rule. Now a decide, Solomon, need to apply the rule in a situation where by the which means of the rule is both obscure or ambiguous. Can Solomon just apply the rule as Rex would intend? In some scenarios, the solution to this issue may possibly be “sure,” but not in all. Why not? Mainly because Rex may possibly have meant the rule to apply to the situation less than some descriptions of the situation, but not less than other folks. Boy, which is abstract. Can you make your position additional concrete?

Take into consideration this example. The similar Congress that enacted the 14th Amendment’s equivalent security clause also segregated the faculties of the District of Columbia. Suppose that this Congress had the subsequent two intentions: (1) Congress meant that the equivalent security clause need to prohibit discrimination on the basis of race, and (2) Congress meant that the equivalent security clause need to not prohibit segregation of the community faculties. Now suppose that we believe that a 3rd point: segregation of the community faculties is discrimination on the basis of race. Given this circumstance, the “intentions of Congress” simply cannot specifically settle a individual situation, e.g. Brown v. Board of Instruction. Less than one particular description, Congress would intend that the situation need to be made the decision for Brown less than yet another description, Congress would intend that the situation need to be made the decision for the Board. Both descriptions are true of the situation.

Of study course, I have not formulated this objection or the possible responses in a deep or thorough way. There is heaps additional to say. But the position is this. Legal rules are the merchandise of intentional actions. Like all actions, lawmaking is intentional less than a description. This indicates that statements about legislative intentions are referentially opaque. But when we apply a legal rule to a reality circumstance, we can describe the details in lots of various means. (A extensive variety of descriptions can refer to any individual legal dispute.) If intentions are to be utilised to as the basis for interpreting legal rules, it simply cannot be on the basis of a concept that states only, “Make your mind up the situation as the intentions of the lawmaker have to have.” Extra will be needed to make such a concept do the job.

Intention and Foreseeable Consequences

Does “intending an motion” make a variation to both ethical or legal accountability? The difference involving intentional and unintentional motion surely appears to be to be significant to both tort regulation and felony regulation. Tort regulation differentiates involving intentional torts and torts based mostly on negligence or demanding legal responsibility. Prison regulation entails what is termed mens rea or the “psychological condition” that is an component of the crime. In standard morality, we differentiate involving intentional infliction of damage as additional culpable than mere negligence.

Most regulation learners face the difficulty of foreseeable but unintended penalties in both felony regulation and torts. Take into consideration the subsequent examples:

Example A person: Ben has a gun. He aims at Alice and shoots, hoping to kill her. Her dying was what he was striving to achieve.

Example Two: Carlos crops a bomb less than the bridge. He wants to damage the bridge, but he also is aware that when he triggers the bomb Dawn is on the bridge correct more than the powerful bomb. Carlos regrets that Dawn died, and he had hoped that by some wonder Dawn would reside.

Example A few: Edgar is keeping Francis and Gertrude captive. When Edgar’s requires aren’t achieved, he executes Francis. Edgar regrets that he had to do this, but he believes this is the only way that he will be equipped to intimidate Francis and Gertrude’s employer into shelling out a ransom for Francis.

Example Four: Harry shoots in the air on New Year’s Eve. The bullet goes up and arrives down, killing Ingrid. Harry did not intend to kill any person, but he did realize that there was a modest chance that his bullet may possibly strike and injure or kill.

In all four scenarios, we can say that one particular individual killed yet another: Ben killed Alice, Carlos killed Dawn, Edgar killed Francis, and Harry killed Ingrid. But every single situation differs with respect to intentionality:

In example one particular, Ben meant to kill Alice and her dying was his conclude.

In example two, Carlos meant to blow up the bridge and Dawn’s dying was a foreseen and really very likely consequence of this intentional act, but Carlos did not specifically intend to kill Dawn.

In example a few, Edgar meant to kill Francis, but her dying was a indicates to a further conclude–payment of the ransom.

In example four, Harry did not intend to kill Ingrid, but his intentional act foreseeably resulted in her dying.

Are these scenarios alike or various? Morally or legally? Of study course, individuals are massive thoughts, but we can make a minimal progress on them. Scenarios one particular, two, and a few are generally viewed as to be indistinguishable so considerably as culpability is anxious: in all a few scenarios, the actor intends the dying of the target. Scenario four is generally viewed as to be distinguishable from scenarios one particular, two, and a few: situation four entails negligence which may possibly be culpable but is not as blameworthy as intentional killing. Scenario two–where by the Dawn’s dying is foreseen as remarkably very likely but is not sought after–is occasionally said to include “oblique intention.” Even even though the dying in situation two was not specifically meant, it is nevertheless the pure and foreseeable consequence of the meant motion (blowing up the bridge whilst someone is on it). 

Trolley Issues

In all four scenarios explained earlier mentioned, the motion that final results in dying is evidently wrongful. But that is not so clear in the famed “Trolley Trouble”–initially posed by Philippa Foot.  Right here is a assertion of the difficulty:

A trolley is operating out of manage down a monitor. In its path are 5 persons who have been tied to the monitor by a mad philosopher. Thankfully, you can flip a switch which will direct the trolley down a various monitor. Sadly, there is a single individual tied to that monitor. Should really you flip the switch with the outcome that one particular will die as a substitute of five?

Most philosophers agree that it is morally permissible to flip the switch. The philosopher and legal theorist John Mikhail has done a sequence of experiments that validate that most standard persons agree. If you pull the switch, you act deliberately and you result in the dying of the one particular individual. Now take into consideration a next difficulty, “Organ Harvesting”:

You are a surgeon performing elective surgical treatment on a healthy individual. 5 other sufferers are on the verge of dying, but could be saved if you killed your healthy affected individual and harvested her organs. Should really you kill your affected individual?

Just about everybody (other than most likely some tough-main act utilitarians) agrees that killing the affected individual is morally impermissible. Both scenarios include creating the dying of one particular to help you save five. But in the “Trolley Trouble,” you do not specifically intend the dying in the Trolley difficulty, you may possibly hope that by some wonder the one particular individual escapes dying. In “Organ Harvesting,” on the other hand, the surgeon need to intend the patient’s dying. The organs can only be harvested if the affected individual is killed. Maybe it is the intention to kill that makes the variation to our ethical intuitions.

Our dialogue of the Trolley Trouble has been really short and superficial. For additional, you can stick to this url. For our needs, the position of the trolley difficulty is to propose that intention is possibly significant to thoughts of culpability.


As with lots of subjects in the Lexicon, we have only skimmed the floor.  Specialists on intentionality in philosophy and felony regulation concept would definitely disagree with some of what I have said and would have significantly additional to say.


Each legal theorist wants a simple mastery of “intention.” But this is a really deep matter. If you are drawn to the concept of felony regulation or the concept of torts or to constitutional concept or statutory interpretation, you will want to know additional about “intent.” Ideally, this entry will get you commenced.

Relevant Lexicon Entries

  • Legal Idea Lexicon 019: Originalism


  • G.E.M. Anscombe, Intention (second ed. Harvard University Push 2000).

Sources on the Web

  • George Wilson, Motion, Stanford Encyclopedia of Philosophy
  • Alison McIntry, Doctrine of Double Result, Stanford Encyclopedia of Philosophy
  • Frances Howard-Snyder, Doing vs. Allowing for Damage, Stanford Encyclopedia of Philosophy
  • Melvin Fitting, Intensional Logic, Standford Encyclopedia of Philosophy
  • Marga Reimer, Reference, Stanford Encyclopedia of Philosophy

(This entry was past revised on July eleven, 2021.)

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