Three Concepts of Probabilistic Causation in the Law (original) (raw)
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Probabilistic Partial Causation and a Gap in the Criminal Law.docx
Cases in which a person merely contributes to the probability of harmful events such as death cannot be properly handled in the criminal law as it currently exists. These cases provide another kind of case (in addition to overdetermination cases) demonstrating that factual causation should not be understood in terms of but-for causation. They also imply that the corpus of substantive law is incomplete.
Common-Sense Causation in the Law
Oxford Journal of Legal Studies, 2018
Judges often invoke 'common sense' when deciding questions of legal causation. I draw on recent work in experimental psychology to refine the commonsense theory of legal causation developed by Hart and Honoré in Causation in the Law. I show that the two main principles of abnormality and choice that Hart and Honoré identified are empirically well-founded; I also show how experimental studies into causal selection can be used to specify these principles with greater precision than before. This approach can help provide legal scholars with a plausible new set of hypotheses to use in reexamining the decided cases on legal causation. If correct, the new commonsense theory that I develop has important implications not only for debates within legal scholarship, but also for judicial practice on issues of legal causation in criminal and private law.
Routledge Encyclopedia of Philosophy Online, 2001
Causal language is pervasive in the law, especially in those areas, such as contract law, tort law and criminal law, that deal with legal responsibility for the adverse consequences of voluntary and involuntary human interactions. Yet there are widely varying theories on the nature and role of causation in the law. At one extreme, the causal minimalists claim that causation plays little or no role in attributions of legal responsibility. At the opposite extreme, the causal maximalists claim that causation is the primary or sole determinant of legal responsibility. These divergent views are rooted in different conceptions of: (1) the nature or meaning of causation, (2) the relationship between causation and attributions of legal responsibility, and (3) the basic purposes of the relevant areas of law. Much of the disagreement and confusion stems from the ambiguous usages of causal language in the law, which follow the ambiguous usages of causal language in ordinary, non-legal discourse. In both areas, causal language is sometimes used in its primary sense to refer to the content and operation of the empirical laws of nature, but at other times it is used in a more restricted normative sense to signify that one of the contributing conditions has been identified as being more important than the other conditions, in relation to some particular purpose. The relevant purpose in the law is the attribution of legal responsibility for some consequence. Thus, in legal discourse, causal language is ambiguously employed to grapple not only with the empirical issue of causal contribution but also with the normative issue of legal responsibility. The failure to use language that clearly identifies and distinguishes these two issues has generated considerable disagreement and confusion over each issue and the nature of the relationship between them. Further disagreement and confusion have been generated by the difficulty of providing useful, comprehensive criteria for the resolution of each of these issues. The most widely used criterion for the empirical issue of causal contribution is the necessary-condition (conditio sine qua non) test. This test has been subjected to considerable criticism as being over-inclusive or under-inclusive or both, and as inviting or even requiring resort to normative policy issues to resolve what supposedly is a purely empirical issue. The deficiencies of the necessary-condition test, coupled with the difficulties encountered in trying to devise a useful alternative test that does not beg the question, have led many to conclude that there is no purely empirical concept of causation, and that there is thus no more than a minimal role for causation in the attribution of legal responsibility. This causal-minimalist position has been especially attractive to the legal economists and the critical legal scholars, since it undermines the traditional conception of the law as an instrument of interactive justice, whereby everyone is required to avoid causing injury to the persons and property of others through interactions that fail to respect properly those others’ equal dignity and autonomy. The traditional conception, with its focus on individual autonomy, rights and causation, is inconsistent with the social-welfare maximizing theories of the legal economists and the anti-liberal, deconstructionist programme of the critical legal scholars. The members of each causal-minimalist group therefore argue that the concept of causation should be: (a) jettisoned entirely and replaced by direct resort to the social policy goals which they believe do or should determine the ultimate incidence and extent of legal responsibility; (b) redefined as being reducible to those social policy goals; or (c) retained as useful rhetoric that can be manipulated to achieve or camouflage the pursuit of those social policy goals.
Causality and causation in tort law
International Review of Law and Economics, 2004
This paper considers alternative approaches to dealing with causal uncertainty in strict liability tort regimes. Beginning from the philosophical literature on causing, a distinction is made between the scientific idea of causality and the legal idea of causation. This distinction is generalized to a context of causal uncertainty and associated probabilities are constructed. It is shown that a rule of proportional liability whereby the tortfeasor pays damages in proportion to the probability in causation of them having caused the damage would be socially efficient. This contrasts with the implied use of the probability in causality by the courts and in the law and economics literature on causal uncertainty.
Conceptual Analysis of Causation in Legal Discourse
European Scientific Journal, 2014
This article deals with the conception of causation in legal discourse. Authors firstly examine causation in the scientific, philosophical and common-sense discourse. Does it make sense to use general causal terms when examining causality in law? We can ask whether legal causality isn´t only artificial construct, legal fiction of a causal relationship. Some authors claim that legal causation is not essentially a causation in the true common sense and thus only a pragmatic political decision regarding the application of distributive and corrective justice, and economic evaluation of benefits in society, others on the contrary point out that causality in law as such is equal to its common everyday use or even in the scientific sense. What are the criteria in the legal sense that lead us to judge that certain event causes harm? Which issues relevant to philosophical discourse may be in legal discourse ignored as irrelevant? The authors show the necessary connection between terms causality in different branches although they conclude that causality is pluralistic concept. The issue of this article is to find out solution for causal connection in particular paradigmatic cases and set up some causal formulas that could be used in legal practice.
Probability-Lowering Causes and the Connotations of Causation
Ideas y Valores 151: 43-55, 2013
A common objection to probabilistic theories of causation is that there are prima facie causes that lower the probability of their effects. Among the many replies to this objection, little attention has been given to Mellor’s (1995) indirect strategy to deny that probability-lowering factors are bona fide causes. According to Mellor, such factors do not satisfy the evidential, explanatory, and instrumental connotations of causation. The paper argues that the evidential connotation only entails an epistemically relativized form of causal attribution, not causation itself, and that there are clear cases of explanation and instrumental reasoning that must appeal to negatively relevant factors. In the end, it suggests a more liberal interpretation of causation that restores its connotations.