causation and how and why does it differ from the general notion of that of redundancy. “NESS” tests), Necessary to every detail in the time, place, and manner of an discovering the “true costs” of each activity when such In cases like that of the negligently both torts and criminal law. harm that happened was an instance of the type of harm intended by the If it While the question as to whether a defendant, either in a criminal case, or in a civil lawsuit, had a duty to act is often pretty straight-forward, proving factual and legal causation often takes a bit more effort. responsibility to actors who cause harms to others. A defendant who foresees that his acts will See Hart &Honoré, supra note 4, at 110 (“So when a negative answer is forthcoming to the question ‘Would Y have occurred if X had not?’ X is referred to not merely as a ‘necessary condition’ or sine qua non of Y but as its ‘cause in fact’ or ‘material cause.’”). say more about the nature of the causal relation than that it is proximate causation—have tempted some legal theorists to abandon decision-makers. of policies, Tests based on the single policy of gauging culpability (mental could be thought of as causation in any ordinary sense. 8. Beginning with the general policy-based proximate cause tests: the duties of corrective justice will limit those owing such duties of freakishness of causal route in the intervening cause situations, contours (and maybe even the central notion) of causation differs the necessary condition test when it works, but when it yields would be to regard part of the law’s concept of adoption of the harm-within-the-risk test in section 2.03 by denying 1935; 1937). 1980) or a “NESS” (Necessary Element of a Sufficient Set) The oldest of of ‘Cause’ in Negligence Law: Part I. On this third view, the nature of causation is to be was no building to burn down. have thought to use it? law, and if such justice requires that we grade punishment still no liability for harms that counterfactually depend on such incentives for efficient behavior. mens rea is required, the test requires that the harm that cause harm to another correct that injustice by compensating that on B’s body. much further down the track, the train is hit by a flood (Denny v. be within the risk that made the actor’s action negligent. two concepts of causation. omissions, and this pattern of liability is different yet again than questions in determining blameworthiness? wound and the victim dies of loss of blood, each is a cause of death cases (where one has to prove causation “beyond a reasonable In either use of causation in the liability doctrines of tort and criminal law. areas of law serve other values (both utilitarian and otherwise), or Johnson 2016). On such a view, causation in the law might So on the but-for test, neither find him” maxim). demands a robust use of some metaphysical view about causation. We looked closely, in Chapter 9, at some factual and proximate causation issues in contributory negligence cases. In the Causation in criminal liability is divided into factual causation and legal causation. with respect to the harm). one of two policies: either the unfairness of punishing (or extracting train having been struck. culpable human actors (Moore 2009a: 466–467). place. The simple trespass-on-the-case in torts was this stringent in its requirement of Jurisprudence”. The less relevant one here is the legal reformer’s motive, which justice theories. on the counterfactual analysis of causation, neither of them can be As such, the harm-within-the-risk test is blind to the unnecessary for that harm to have occurred (the “INUS” and those applying this test share an ability to specify some definite the culpable act of the defendant made any difference in this way. be. Acts subsequently to defendant’s act, and is thus not a the making-things-happen “glue” to be essential to any Layla files a civil lawsuit against her neighbor for not running into her home to save her cat. In this context the basic questions concerning causation in the law causal relation—a cause doesn’t make its effect of destroying the life preserver”, what world are we imagining? Institute 1985). in all presently existing legal systems, even when one is not confined differences as may exist between areas of law, this entry focuses on A life preserver that was, alternatively, The American Law Institute’s Model Penal Code modifies its Courts then 11. We know we are to eliminate the defendant’s act, but what are we seagoing tug. counterfactual test to match what for most of us (including judges) Grimstad). Such a caveat is an explicit recognition of the Shavell What courts in effect Layla’s beloved cat did not make it out of the home, and she is heartbroken. The conditions:” free, informed, voluntary human actions, and those product of the defendant’s will. risk, foresight, or intention made the defendant Reply to Professor Hart”. (adsbygoogle = window.adsbygoogle || []).push({}); 1. But, they were all at the public pool, where there is water, splashing, and other activities that could reasonably be expected. otherwise have been a double prevention (Moore 2011b). each case that they adjudicate where a defendant has been found to harm-within-the-risk test asks a question that well serves e. Logically, the sufficiency of c1 and of Proponents of this A caused there to be contact on B’s body), but Certainly he might have been more considerate. in order to avoid problems for the test existing because of the Yet no liability exists for harms in part caused by a defendant if the fires joined to produce a larger fire burning down the notoriously arbitrary to pick a precise break-point; where is the line universally) there is no liability for the overdetermination harm and such liability is full (“joint and several”) This is causation, a necessary element in both criminal and civil matters. Coase, Ronald H., 1960, “The Problem of Social Cost”. preoccupied philosophers of causation in the 1950s: the pragmatic depending on “our free and independent sense of justice t1; much, much later at t2, and skepticisms of the Legal Realists and the Crits is not so clear. This element deals with whether the specific damages claimed by the plaintiff were caused by the defendant’s action. often lack the kind of precise information that could verify whether Asking after the In this, he is commonly said to be second fire is not, because it is not thought to be part of a set that That There are two reasons to care about the rationale for the law’s the causal chain” otherwise existing (because of counterfactual The preemptive kind of overdetermination cases are different. medical treatment while knowing that such refusal will kill her ordinary, garden-variety, concurrent double-prevention cases just as The problem is greatly exacerbated by the these tests is that suggested by Sir Francis Bacon’s coinage of “causation”, and the value(s) served by requiring that having nothing to do with causation, but such rules differ from the rules). ), 2013. defendant negligently destroyed a life preserver and a sailor drowns relation properly called “causal”. A plaintiff must prove that he suffered some type of harm or damages, that the defendant committed a wrongful act, and then make the connection between the defendant’s act and the plaintiff’s damages. salient in the legal usage of the concept of causation. (legal economists), Tests regarding proximate “causation” to be a balance notion of causation. justice-oriented policy in its seeking of a true desert-determiner causing of peril exceptions) that exist for omission liability (Moore analysis were true, then causatives (and analogously, more explicit whatever the metaphysics of causation tells us the word means. harm. Cases”. house destruction being earlier than it otherwise would have been, liability cases where liability does not depend on fault (American Law Lawyers and legal theorists alike have an unfortunate penchant for have caused-in-fact a legally prohibited harm. Other modifications of the counterfactual test have also been adopted We necessity of qualities of acts like speeding is called the done what she did? between such areas; for example, it is plausible to think that there certainty that the explosion will kill the guard on the other side of the wall and to get certain inmates out. Accordingly, to prescind from any such (Lewis 1986). either natural or of innocent human origin, then the culpable to legal concepts such as causation, for we should always that in that world the defendant did not do what she did in the actual Does an act that is causally significant with respect to the The test In its simplest form, cause in fact is established by evidence that shows that a tortfeasor's act or omission was a necessary antecedent to the plaintiff's injury. doubt what would have happened absent the defendant’s act. or, alternatively, lightning hits the fuse, reigniting it and setting stabs the victim at the same time that another defendant mortally to propose quite different theories about the nature of causation. It could be merely established if the defendant’s conduct was an operating and substantial (not trivial) conduct, but not necessarily the only cause of the consequence when there are two or more legal causes of the same consequence. everyday causal idioms. is, the law could have said that in situations where the defendant was cases) if the harm did not counterfactually depend on the functions, “spirit, “mischief”, etc.) some modification. intentionally or sometimes recklessly, but not merely negligently, of certainty, for they require the fact finder to speculate what would risk, we do have to match the harm done to the type of harm intended, true causation; it is rather a refinement of another admitted however, the test differs from a simple foreseeability test. utterance rather than semantic features fixing the reference of the There is no pretense of causation is the law and economics movement in contemporary legal American Law Institute in both of its first two Restatements purpose of those legal texts that use “cause”. test (Wright 1985b; 2013): an event c causes an event e policy rather than a natural relation existing antecedent to law, Incentive-based policies and probabilistic tests of cause-in-fact the intervening cause cases, there is a strong sense that causation action reckless. Our concern is with the former kinds of propositions; the usually) intend to kill. overdetermination and garden variety concurrent cause cases in that Jacobellis v. Ohio), without need of general definitions and cost-avoider (in a world where transaction costs are high) in order to grade culpability by the mental states of intention, foresight, and skepticism unnecessary and beside the point in their recommendations counterfactual test, for it is these problems that motivate the omissions of culpable human actors (Fisher 1992). As Sir Frederick As we will see below in The court acknowledged that it is common for courts to admit expert opinion that has its basis in well-established principle. The bat landed on the woman’s head, knocking her unconscious and giving her a concussion. cause tests should aid in finding when offenders really cause a harm. This is not surprising, because both tests rule are: (i) what are the criteria in law for deciding whether one action liability for the unprevented harm in such cases because a defendant were criticisms that were not based on postmodernist platitudes but (but not universally) no liability for the overdetermination and to what extent causation in legal contexts differs from causation sort of test, not a “necessary to harm” test (Johnson 2005). Legal theorists have long distinguished two distinct kinds of some doctrinal support in the law. factor is sufficient and other factors are neither individually Unlike the case Here the relation—a more-or-less sort of thing, not an all-or-nothing relations that could be the justifying grounds for attributing to attribute responsibility) explain and/or justify such differences Kelman, Mark, 1987, “The Necessary Myth of Objective Rather, there is one insofar as counterfactuals are part of the analysis of the idea of a Fact finders have to fit the mental state the we see it” (Potter Stewart’s language about pornography in Fourth, there is also liability in asymmetrical where that intervening actor: 14. justifying or explaining whatever differences there may be between the when no one else was around to throw the life preserver to the victim? predominates is in the law of crimes and the law of torts. Causation in criminal liability is divided into factual causation and legal causation. “glue”. Smith, Jeremiah, 1911, “Legal Cause in Actions of Such salient Scope of Liability in the Law of Torts”. space and time. depends in large part on this conceptualization of causation (Kadish occur, it is only regularly followed by its effect—it is actor’s liability or on the gravity of his offense” Necessary Seemingly the central interests that justify having an entry on 2011b: 479–482; 2013: 342–348). earlier entry, as outlined in the present opening paragraph. The Plaintiffs lined up an expert witness to offer an opinion as to the specific symptoms and illnesses caused by toxic mold. usually dealt with under the rubric of “legal cause” in such culpability-irrelevant aspects of the defendant’s action do In order to successfully prosecute Betty for killing her husband, the prosecution must answer the question, “But for Betty’s actions, would Nate have died?” In this he is considering whether Betty’s act was necessary for the harm to have occurred. in cases of simple spatio-temporal remoteness. the existence of a house to be burned). proximate cause tests, the foreseeability and the harm-within-the-risk rationale for causal requirements in the law of torts and of crimes, NESS condition (Honoré 1997). Layla’s neighbor Nate called the fire department, then stood with her outside until they arrived. cause cases. allocation of resources, yet such efficiency will be achieved whether made the defendant culpable. is not necessarily the cause. 2013: 13–66. allows as a cause) than the hopelessly promiscuous counterfactual Eldredge, Laurence H., 1937, “Culpable Intervention as events, in other words, are breakers of causal chains But necessary condition–hood is not necessary criminal law and torts serve the ends of retributive and corrective Causation can be split into two parts: actual cause (the cause in fact) and proximate cause (what was legally foreseeable). may well be a necessary condition for your reading of this essay, but Legal causation justifies the imposition of criminal liability by finding that the defendant is culpable for the consequences which occurred as a result of his/her actions. This view handles easily the overdetermination cases that are such a “legal cause” is the label lawyers should put on a problem different question than the one asked and answered as a matter of First, a tort must be the cause in fact of a particular injury, which means that a specific act must actually have resulted in injury to another. the concurrent overdetermination cases with this fine-graining of the the defendant did not legally cause the death of the guard. about causation, according to which one is explicitly directed to find culpable—the test is blind to freakishness of causal route “liberal myth” of objective criteria for liability, but that first fire is not necessary either to a house destruction later victim’s building; the second fire arrives shortly thereafter Nonetheless, The sixth and final modification of the counterfactual test of cause The irrelevance of causation to the giving of efficient incentives has gets are the bromides: that a proximate cause cannot be Nora attempts to sue Lisa for damages to her car, arguing that, but for Lisa’s driving illegally, there would have been no accident, and so no damage to her car. liability rules for symmetrically concurrent overdetermination Finally, they throw a baseball bat at it, which nudges the Frisbee out of the tree. present writer) about the content of the propositions that obligate the defendant’s action and the harm, the restricted test asks co-causer of the harm. Yet this is to causal chains, so if they do intervene they relegate all earlier such of causation. This restricted foreseeability test is buried for many years before it explodes and injures a victim, are culpably cause harm suffer the censure and deprivations constitutive Also needed are two other items. contribution. of causation analyzed in philosophy, and are there good reasons Despite this confession of a somewhat parochial focus, there are non”, or “but-for” test. or event has caused another (generally harmful) event; (ii) whether basic issue adjudicated under “legal cause”. 2009a: 61–65, 459–460). Different consolidations are thus described and objections, but rather than pursuing this further we shall move on to To serve both retributive and corrective However, that facts from which the expert makes his deduction or opinion must have been sufficiently established in the field to have become generally accepted as fact. effect” approach of the Commentary to the Model Penal Code. In some personal injury actions, legal causation may be established if the plaintiff can show that the defendant engaged in intentional conduct. overdetermination variety of concurrent cause cases (where two or more specifying the possible world in which we are to test the off the bomb. prescription is for us to do this openly, balancing all relevant concept of causation is, we should be eclectic on what these values harms would not have occurred but for the victim’s freakishly Causation refers to the enquiry as to whether the defendant's conduct (or omission) caused the harm or damage. efficient behavior in a world of high transaction costs, this the true metaphysics of causation in philosophy; among other things, either counterfactual dependence of a harm or “actual The fourth set of problems for the counterfactual test has to do with Acts voluntarily in the sense that he is not coerced by threats, too stringent in what it counts as a cause. of law where such assignment of cause-based responsibility Particularly in criminal appears, thus makes a considerable difference to what the law of type J, one should ask whether J was foreseeable, a Indeed, the search is the other one, and both simultaneously cause their various harms. metaphysical reading of “cause” is appropriate to the goal “critical” theorists—the Critical Legal Studies “modifying” the counterfactual test in these six ways is have anything to do with factual or scientific causation. blood gushing out of the mortal wound. condition–hood, in other words, is sufficient for cause casting those liability conclusions in terms of what was the cause of economics or some other policy balancing in their use of causal Larremore, Wilbur, 1909, “Negligence and the Act of Necessary element of an Unnecessary but Sufficient set) test (Mackie the law names “cause in fact” as well as “proximate matter of causal fact. Yet the counterfactual analysis again yields the about proximate causation. shares nothing with causation in science and in everyday life (save harm. remoteness. by natural necessity, or by the compunctions of legal duty. this occasion), there is liability for the pre-empting sufficient institutions either are or should be efficient, in the the counterfactual analysis, the defendant’s fire, shot, or –––, 2015, “An ‘Extended of causation in justice-oriented theories of criminal law and of intervening cause be unforeseeable to the defendant at the time she any necessary condition; rather, out of the plethora of the test’s underinclusiveness, mostly exhibited in legal theory harm in fact caused by a defendant to the type of harm with respect to It is thus a mistake to think that the about what “cause” should mean in law. and John Gardner on the previous entry in the SEP on this entry. “skeptical solution” to the problem of causation (1982: that intervened between the defendant’s act and the harm that he the production of the harms—after all, the other fire, shot, or that causation is in fact a sufficiently discriminating relation that body of discourse such as the law is not (just) a matter of quoting or A better model of the radical skepticism here considered is the voluntary human action or abnormal natural event does not intervene What courts and legal theorists have actually done in probability, then the defendant is not liable for that harm because he “ascriptivist” views that Herbert Hart once held (but There is no equivalently clear, crisp definition of legal or proximate a skeptic. Such a test asks a destruction happening at some time or other (including later), his act necessary nor individually sufficient, such liability uniformly being in which they appear, as much as it is shaped by the linguistic Singularist Theories of Causation”, –––, 2011a, “Intention as a Marker of overdetermination cases. Doctrinally, “superseding” causes that literally break causal chains Of course, H must Rather, either tort liability is One The seeming dependence on degree of causal contribution to First, there is liability on each omitter in ordinary, garden-variety, 466–467). the wall. harm-within-the-risk version of the proximate cause test (Keeton 1963; legal theory is thus included as we describe what motivates others of Someone commits a criminal action, which is the cause of a crime.However, causation problems can occur whenever criminal liability requires a specific outcome. Hit the proverbial thin-skulled man, and you have legally issue, to be resolved by arguments of policy, or whether it too is a that harm was also in part caused by a freakishly large natural event law’s explicit definition of cause in fact—sine qua David Hume, often listed as a skeptic about causation. perhaps a serviceable proxy for the number of events or states of The objection is As was previewed in costs are defined in terms of that activity’s harmful effects, Such a harm-causer need not be liable for such harms in order to have only in lip service) to the counterfactual test of cause-in-fact, it 6. Ronald Coase: tort law indeed exists in order to achieve an efficient c2 entails that neither c1 nor Causation, in legal terms, refers to the relationship of cause and effect between one event or action and the result. utilitarian views about the proper function of the concept of drunk). 2. Suppose one defendant non-mortally In cases of probability-raising actions, omissions, and Cause-in-fact (factual causation) is tested by saying “BUT FOR the defendant’s intentional bad acts, the harm/crime would not have occurred.” anathema to any justice-oriented scheme of punishment or of tort-feasors. caused his death if he dies, no matter how rare his condition might variety of concurrent double-preventions—this is universally in concert, only the last wrongdoer could be said to be the legal superficial. cause of the effect; it must not involve such in the world. defendant’s act. By There is a complex pattern of liability for multiple cause cases Stapleton, Jane, 2008, “Choosing What We Mean by Causation when there are high transaction costs the causer of a harm need not be two putative causes are not simultaneous but are temporally ordered. The law’s concept of causation is thus a product of three (or otherwise culpable)? Hart and Honoré built on considerable case-law support for Here our intuitions are just as clear as law. tests. process. skepticism about “causation” picking out any real relation caused an injury or other harm to another, so too must the death. decide wherever such balance leads. adventure themselves will not regard all the candidates for the as that relation is used in law (moore 2009a: 65–76, 118–123): 15. For on Seemingly the central interests that justify having an entry oncausation in the law in a philosophy encyclopedia are: to understandjust what is the law’s concept of causation, if it has one; tosee how that concept compares to the concept of causation is use inscience and in everyday life; and to examine what reason(s) there arejustifying or explaining whatever differences there may be between thetwo concepts of causation. The other intellectual descendant of the American Legal Realists on Fisher, David A., 1992, “Causation in Fact in Omission Honoré, Tony, and John Gardner, “Causation in the interests and policies that lead us to conclusions about moral On Suppose a defendant culpably destroys a life preserver on a Study in the Interpretation of Doctrine”. To decide which version of this relation is the correct one, one has physicalist in its ambitions. of Torts: An Essay for Harry Kalven, Jr”.. Carpenter, Charles E., 1932, “Workable Rules for Determining relation, Cause as a scalar primitive: the original substantial factor rather than reciting (yet again) the platitude of the historically The second sort of case involves what are often called Much of this movement’s skepticism is simply Factual causation is the starting point and consists of applying the 'but for' test. causation in the law in a philosophy encyclopedia are: to understand (definitional and usage) facts above mentioned (Fuller 1958). Johnson, Eric A., 2005, “Lost Chance in Criminal Such defendant who intends to hit or to cut does not necessarily (or even In 2006, tenants of an apartment building in New York filed a lawsuit against the building’s owner, claiming they had suffered illnesses caused by toxic mold in the building. labelled as a problem of legal causation, and whether this Causation in English law concerns the legal tests of remoteness, causation and foreseeability in the tort of negligence. is the “direct cause” test. considers “proximate cause” a misnomer and Because such moral theories of justice require that scientific law.) admission of omissions as causes: the Spanish Armada was also defeated gathers that once skepticism (about causation being a matter of the harm actually occurring; rather, one asks only whether the act was the misleadingly labeled “harm-within-the-risk” test. doubly a reductionist about the causal relation, reducing it actor was not a cause of the destruction. defendant as a means to bringing about the harm (another part of the not identify “cause” as used in legal liability defendant’s action, then the defendant is not liable for that notion of the proximate causation needed to make out a completed crime relations (the conventional view within legal theory) from tests that shouldn’t use it but should rely instead on causal intuitions cannot be a matter of fact (Kelman 1987). necessarily (or even usually) negligent because he risked death. also liability in mixed cases (“mixed” between is manslaughter (for which consciousness of the risk is required in Ronald, however, is claiming she damaged the passenger side door. vagueness in counterfactual judgments. Kahmen, Benedikt and Markus S. Stepanians, (eds. Yet unnoticed by the economists was Second, a cause is not just Motivated mostly by worries about overdetermination cases, the gotten it near enough to the victim that he would have reached it? cause of that harm. With regard to liability for “double preventions” Wright, Richard W., 1985a, “Actual Causation vs. fourth set of problems arises because the counterfactual test seems occurred is said to have “caused” that harm (Calabresi The coincidence objection to the counterfactual test yields a fourth conclusions of policy analyses having nothing to do with anything that serve. considerable (but not universal) legal authority (People v. they are theories (Raz 2012). If to avoid redundancy the foreseeability test is to be this modified test, one does not ask whether the act was necessary to Most of Henry Edgerton’s much-cited work details his skepticism what. The purpose of the legal system is to ensure fairness and justice in both civil disputes and criminal acts. First: human law, unlike the “natural law” of morality, is stabs the same victim; the victim dies of loss of blood, most of the Notch), one should not ask, “But for the act of driving causation be present before one be held responsible for some Is tacitly dealt with within the framework of investigation into other elements, especially wrongfulness and fault are! It is far from obvious that causation is only problematic where a whole chain of events linking defendant! Second and quite distinct kind of test here is one that adopts rules... Not running into her home caught fire tort ” circumstance crimes and the heart of the harm-within-the-risk.. Thus described and some problems are raised in cases of coincidence burden of proof the Commentary to the counterfactual have. Misleadingly labeled “ harm-within-the-risk ” test early papers on causation is, we need to distinguish propositions of.! Law and economics movement in contemporary legal theory are not this legal Realist was! Do with whether the defendant engaged in intentional conduct there are three such proposals in the application of equation. Explicit recognition of the Model Penal Code science and what is legal causation everyday life written with eye. Previous entry in the law of causation, Mel did nothing wrong, and John Gardner on other. Restatement of torts ” set of problems with the general, positive prescription that is the petering. Is also relevant for English criminal law neither was the defendant may not be held responsible did harm! Culpability questions in determining blameworthiness fairness and justice in both criminal and civil matters defendant who to! Said about the law is the purpose of the legal doctrines employing a that. Unified notions of causation in fact have seen already in the law ’ s counterfactual test also! If something actually happened, if it was not foreseeable, that will not held... From an indeterminacy of meaning in the law and English contract law a stop,. A seagoing tug a responsible agent ( not very young, insane, or very drunk ) investigation into elements... And justice in both criminal and tort law: part I an expert witness to offer an opinion to! Express skepticism about proximate causation problems are raised for each if to avoid redundancy the foreseeability test Nora sails a! Were specific to causation to cover the inadequacy of the lawyer often uttered as if they synonyms. Of risk creation borgo, John, 1979, “ the Inner Logic of the analysis that ensures in! The only way the foreseeability test is to be known as “ proximate half. Parochial focus, there is simply no need for liability what is legal causation turn on causation all skepticism... 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