Mens Rea in Tort Law

Abstract

In ethical terms, intention is widely felt to be the strongest basis for the attribution of personal responsibility for conduct and outcomes. By contrast, in tort law intention is a much less important ground of liability than negligence. This article analyses the meaning of intention in tort law and its relationship to other concepts such as voluntariness, recklessness, motive, and belief. It also discusses difficulties associated with proving intention and other mental states, and the idea of a general principle of tort liability for intention. The key to explaining the relatively minor role of mens rea in tort law is found to lie in the emphasis tort law gives to the interests of victims, and to social values, in constructing its concept of responsibility. This approach also helps to explain the greater importance of mens rea in criminal law.