Intent Reconceived

33 Pages Posted: 8 Mar 2016

See all articles by Jay Sterling Silver

Jay Sterling Silver

St. Thomas University - School of Law

Date Written: February 1, 2015


This piece builds the foundation of a new paradigm in legal intent that advances justice by producing an accurate fit between the blameworthy states of mind and the formal rules by which we measure culpability and punishment. It begins by challenging the pervasive conflation of the states of mind of purpose and desire, a fundamental conceptual error sponsored by William Prosser, the dean of American tort law. The piece then reveals the ambiguity inherent in our general notion of purpose by distinguishing between its non-culpable, aspirational aspect and culpable “executory purpose” that triggers the wrongdoer’s act. The concept of executory purpose also overturns the traditional view that the states of mind of purpose and knowledge are independent prongs of legal intent. Instead, Professor Silver argues that the decision to act, which signifies a defendant’s moral and legal culpability and underlies the state of purpose, constitutes a necessary condition of knowing action, making the division of intent into purpose or knowledge a false dichotomy. In turn, the author asserts that, in Garratt v. Dailey - the monument to tortious intent entrenched in first-year casebooks for over half a century - the Washington Supreme Court’s remand to inquire into Brian Dailey’s knowledge after the trial court found no purpose constitutes a logical contradiction. Finally, the mental states of desire and knowledge are reconstrued as aggravating factors, like “premeditation,” in the grading of criminal offenses and the measurement of punishment. These insights generate new analytical tools in the calculus of culpability. This piece asserts the reconstruction of intent as executory purpose - unfettered by the conflation of purpose and desire, the mistaken use of the aspirational sense of purpose, and the mirage of the knowledge prong - ultimately achieves a seamless fit between our mental states and the doctrine of legal intent.

Keywords: intent, legal intent, mens rea, Garret v. Daily, Prosser, purpose, knowledge, desire

Suggested Citation

Silver, Jay Sterling, Intent Reconceived (February 1, 2015). Iowa Law Review, Vol. 101, 2015. Available at SSRN:

Jay Sterling Silver (Contact Author)

St. Thomas University - School of Law ( email )

16401 N.W. 37th Ave.
Miami, FL 33054
United States

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