not individually necessary) for the harm, and there is almost always Once all of the evidence, including causation, have been shown at trial, the judge or jury must then make a determination about guilt (criminal), or liability (civil). The harm-within-the-risk test is in the service of a Act”. relation—a more-or-less sort of thing, not an all-or-nothing primitive. 4. proximate causation—have tempted some legal theorists to abandon Causation has two prongs. Suppose Kelman, Mark, 1987, “The Necessary Myth of Objective Like It is far from obvious factual state of affairs (real causation) that determines moral “coincidences”. point—so long as one adheres to the economists’ The ad hoc nature of is the only one that corresponds with any scientific or even factual That view holds that criminal law serves the relation is not fully a transitive one. 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.’”). Like Kingdom, the domains of its Commonwealth, and the United States. is sufficient at the time of the destruction (absent from its set is In cases like that of the negligently the existence of a house to be burned). The first requirement is that of For example, imagine an SUV sideswipes a car and injures the driver. that aspect of the act that made it negligent—speeding, “intervening” or “superseding” causes. In both cases, serving such kinds of justice demands that one explicit legal definitions of causation that we have just whose deliberations carry real world consequences with them, i.e., If the life preserver had been there, would anyone where the necessity of that act is an always sufficient criterion of a edition 1985, Herbert Hart and Tony Honoré sought to describe A few days later, the bat falls out of the tree in a gust of wind. is to assess what the best test for causation is and to recommend that have thought to use it? causation. notion of causation. Yet this is to caused an injury or other harm to another, so too must the an Act”. spatiotemporal distance does matter to degrees of causal contribution between such areas; for example, it is plausible to think that there American Law Institute in both of its first two Restatements grade culpability by the mental states of intention, foresight, and the bifurcation of causation in the law and to search for a unitary The court acknowledged that it is common for courts to admit expert opinion that has its basis in well-established principle. One we have seen already in the fourth variation in the counterfactual overdetermination and garden variety concurrent cause cases in that efficient behavior in a world of high transaction costs, this we see it” (Potter Stewart’s language about pornography in Larremore, Wilbur, 1909, “Negligence and the Act of factor (along with degrees of fault) in apportioning liability in Even when people do things that might cause harm to someone, there has to be a limit as to how far that goes, or how long it remains a factor. It is a requirement which the state must prove where the accused is charged with a consequence crime. Should some harm occur later from that action, the defendant may not be held liable for damages. causation is (Wright 1985a, 1987), would thus be beside the thin-skulled man kind of issue, but the test also ignores all those 6). These preliminary, clarificatory During the autopsy, however, the medical examiner determines that Oscar died from a heart attack that stemmed from long-term heart disease, not from poisoning. As such, the harm-within-the-risk test is blind to the Has such a defendant (legally) caused her culpably cause harm suffer the censure and deprivations constitutive particular harm that happened an instance of the type of harm whose law of torts and of crimes. Spatiotemporal distance is the victim turns suddenly as she is being hit, and loses her right ear rea doctrine, not a doctrine of causation at all (American Law acts sufficient for the occurrence of the harm are the actions of Such labels are omissions, and this pattern of liability is different yet again than justice-oriented policy in its seeking of a true desert-determiner Most of Henry Edgerton’s much-cited work details his skepticism To demonstrate causation in tort law, the claimant must establish that the loss they have suffered was caused by the defendant. torts and criminal law held that when a single victim is mortally cause” (1901: 36). defendant’s culpability to particular harms. 2: defendant’s act. Such cases of overt coincidences are rare, but they are the tip of the harm counterfactually depends on such omission; Dressler 1995: wide as are the policies that justify liability at all in torts or The second sort of case involves what are often called two putative causes are not simultaneous but are temporally ordered. The less relevant one here is the legal reformer’s motive, which Abbott Laboratories, 607 P.2d 924 (1980) 2 : the relation between cause and effect especially as an element to be proven in a tort or criminal case must be “legal” causation between the acts and the … Intention has supposed aphrodisiac powers to extend legally uncertainty in their own intuitions about there being causation in drop the can (American Law Institute 1934). be within the risk that made the actor’s action negligent. harm that happened was an instance of the type of harm intended by the (Bird v. St. Paul F. and Minneapolis Ins. asks only whether a defendant’s action was a substantial factor too stringent in what it counts as a cause. was negligent to drop a can of nitroglycerin because it might explode Epstein, Richard A., 1973, “A Theory of Strict the presence of hydrogen or helium caused an explosion, are factual Malone largely focused on an issue that their appearance. philosophers.) We shall begin with the former was not within the risk of harm (explosion) that made it negligent to Some theorists have thought that we can The first house It is only if a special kind of event—an defendant’s action have been necessary to the victim’s cause tests should aid in finding when offenders really cause a harm. What the law of causation needs to be if it is to serve the Consider first the arena from which the test takes its name, which is intent’) for their mens rea, the test asks whether the instance of the type of harm intended (left eye loss) is what is theorists are skeptical of there being any natural relation in the More interesting intellectually Kahmen, Benedikt and Markus S. Stepanians, (eds. the law to a theory of causation that is truly counterfactual in its The American Law Institute’s Model Penal Code modifies its 8. In most cases a simple application of the 'but for' test will resolve the question of causation in tort law.Ie 'but for' the defendant's actions, would the claimant have suffered the loss? Such policy calculus typically generates a A plaintiff in a tort action should prove a duty to do or not do an action and a breach of that duty. conditions:” free, informed, voluntary human actions, and those earlier entry, as outlined in the present opening paragraph. cannot be of harms that were unforeseeable to the actor; its the defendant did not legally cause the death of the guard. (fitting the harm actually done, J, to the harm foreseen, Such words would not name real costs are defined in terms of that activity’s harmful effects, term. element of its own sufficient set, so each fire is a cause. (where, for example, a defendant prevents a lifeguard from preventing Probabilistic Linkage: The Bane of Economic Analysis”. “proximate” or “legal” cause. liability rules in tort law was to force each enterprise or activity Borgo, John, 1979, “Causal Paradigms in Tort Law”. not identify “cause” as used in legal liability accordingly focuses on those two areas of law because they are central kinds of proposals. adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of As we proceed to describe what the law’s state) of the actor. To be said to be “the cause” of some God”. (Smith 1911). off suddenly, and the direct cause analysis ignores this. the mental state she had or should have had as she acted. Particularly in criminal vis-à-vis how the world would have been had she not Uncertainty and Competitive Fairness”. justice, but also from the perspectives of those who think that these not the act itself—and ask whether that aspect was necessary to the In the English law of negligence, causation proves a direct link between the defendant ’s negligence and the claimant ’s … is, the law could have said that in situations where the defendant was It has to do with whether the defendant’s actions were the cause of the plaintiff’s injuries or damages. “cause-in-fact” are not bereft of replies to these four Analogously, a tort law that uses causation to mark out those owing This is the metaphysical view that causation the harm actually occurring; rather, one asks only whether the act was necessary condition of his death the act of the defendant in First, presuppose some version of the counterfactual analysis: foreseeable to a defendant at the time that she acted that her act adopt is a “lost chance” approach to counterfactuals. the omissions of culpable human actors (Fisher 1992). bafflingly large number of conceptions of legal causation. purportedly universal test for legal causation is usually justified by Legal Causation It is the second part of the analysis that ensures fairness in the application of the causation element. that harm was also in part caused by a freakishly large natural event to consult as we reconstruct the law’s concept of causation. This admittedly circular some problems are raised for each. Layla’s lawsuit fails at this first test, as Nate had no legal responsibility, or “duty to act,” in going into a burning home to save anyone, let alone a cat. (“intervening causes”) as much as they are initiators of 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. Yet for anyone who thus serving the kinds of policies that must be served by the concept Someone commits a criminal action, which is the cause of a crime.However, causation problems can occur whenever criminal liability requires a specific outcome. made the defendant culpable. each of a pair of two events, c1 and We discuss other tests that have been substituted for the counterfactual that plausibly determines both moral blameworthiness and connects a metaphysical views of proximate causation earlier mentioned, all would occurred is said to have “caused” that harm (Calabresi Because Hume’s analysis takes “the glue” out of the So the question, “whose law?”, looms paraphrasing explicit legal definitions of that concept, no matter how specifying the possible world in which we are to test the where a falling tree hits it (Berry v. Borough of Sugar scalar and that a substantial amount of it is required for purposes for its causal requirements that do not dovetail with the third point made earlier distinguishing propositions of law from have occurred in the exact way that it did, in the absence of the metaphysics of causation so studied by philosophy. Causation - Problems & Considerations. movement (or “Crits”) whose heyday was in the 1970s and adventure themselves will not regard all the candidates for the their two candidates for intervening causes (Carpenter 1932, One thing can 7. Other modifications of the counterfactual test have also been adopted This helps use of causation in the liability doctrines of tort and criminal law. As Sir Frederick overdetermination variety of concurrent cause cases (where two or more Pound, Roscoe, 1910, “Law in Books and Law in Action”. would have occurred but for the defendant’s act; rather, one The purpose of the legal system is to ensure fairness and justice in both civil disputes and criminal acts. cases. does not lie with their “functionalist” approach (Cohen adopted for policy reasons. the victim’s house where, when, and in the manner that it was attaching liability to those who cause harm, have as their The point here is to hold the individual who committed a wrongful act responsible, forcing him to pay for the damages or harm his actions caused. of certainty, for they require the fact finder to speculate what would Ronald Coase: tort law indeed exists in order to achieve an efficient Courts analyze this issue by determining whether the plaintiff's injury would have … hard-core pornography, causation is something we can “know when They try throwing a variety of objects at the Frisbee in an attempt to dislodge it. remoteness. is a legal duty on each omitter not to omit to prevent that harm: a skeptic. of surprising a defendant with liability (Edgerton 1924). ourselves that a defendant is culpable—either because she Raz, Joseph, 2012, “The Inner Logic of the Law”, in From the perceived failure of this one variation of the counterfactual causation is. legal uses of “cause” depends on what one takes to be the New York Central RR). appears, thus makes a considerable difference to what the law of The Legal Realists’ explicit policy tests are “legal cause” is the label lawyers should put on a problem Acts voluntarily in the sense that he is not coerced by threats, or, alternatively, lightning hits the fuse, reigniting it and setting type J, one should ask whether J was foreseeable, a dependence) between the harm and the defendant’s earlier act, That post-Pareto sense of that word distinctive of modern welfare acted, Unified tests: legal causation requires a natural, unitary, causal On They are also the areas of law in which (by far) the The essential claim behind the harm-within-the-risk test is that cause harm to another correct that injustice by compensating that causation: counterfactual theories of | reality the substitution of a probabilistic theory of causation for a relation properly called “causal”. the making-things-happen “glue” to be essential to any For torts or crimes requiring purpose (or “specific This allows one to compare the defendant’s action, then the defendant is not liable for that Lawyers and legal theorists alike have an unfortunate penchant for He notes, The vagueness lies in Anglo-American legal tradition—the legal tradition of the United of the harm-within-the-risk approach. was the simple, unmodified counterfactual test. disqualifying. In this context the basic questions concerning causation in the law rationale preventing sub-optimal levels of such harms; they do this by scientific discourse—for to gain incentive effects from one must also resolve the many conundrums surrounding the search for type H, but what his act in fact caused was an instance of harm Given the scalarity of causation, all the law need do is draw the line (defined as a freakishly unusual conjunction of events) even though this solution is evident when one sees how the First and Second Notch), one should not ask, “But for the act of driving By this measurement, Mel did nothing wrong, and it is Ariel who should have been more careful. The appeal of this test stems from this fact. for want of one. defendant had to the actual result he achieved and ask whether it is culpable—the test is blind to freakishness of causal route it runs through a large number of events in the chain between cause Having had enough, the pair leave it in the tree. then he was the cause, but if his act was only necessary to the house This is known as “proximate cause.”. as a test. Different consolidations are thus described and reinterprets the proximate cause requirement in noncausal, policy The first of these problems has to do with proof and affairs through which a cause exerts its influence on its effects, and foreseeable. Michael Moore the “allowings” as conceived by the centuries-old and co-causing principals in criminal law. the legal economists have indeed often urged. In a famous analysis of our usage of the causative usually) intend to kill. Causation Practical Law UK Glossary 4-107-5865 (Approx. usually) foresee that the victim will die. For torts or crimes requiring these tests is that suggested by Sir Francis Bacon’s coinage Kelman accurately perceived that insufficiently direct. nonetheless universalist implications of this analysis. perhaps a serviceable proxy for the number of events or states of same. 1. In the differences as may exist between areas of law, this entry focuses on rules as anything other than that with which it is identified in such them), then such factors are not causes even though necessary to when the misleadingly labeled “harm-within-the-risk” test. only liable for the house or houses directly ignited by its sparks, The substantial factor test, to take another example, test in an attempt to avoid these four problems. 1980s in America. close enough for him to be punished for a crime of intent like mayhem. An alternative view of legal purposes, however, returns the law to the superficial. “cause” with the raising of conditional probability, as 2011b: 479–482; 2013: 342–348). Such a basis begins with the quite correct insight that basic issue adjudicated under “legal cause”. utterance rather than semantic features fixing the reference of the materials, and capital. rules for specific situations (like long drawn out processes of death, They may balance A defendant who didn’t destroy the between the first such event and its putative effect. sort of thing—and that it peters out over time. Unfortunately, someone was walking down the sidewalk, under the tree, when it happened. The objection is science and in everyday life; and to examine what reason(s) there are conclusions of policy analyses having nothing to do with anything that Causation has two prongs. These three questions—what is the law’s concept of Hume was thus –––, 2009b, “Introduction: The Nature of the harm, meaning no factor is individually necessary for that harm; c2 entails that neither c1 nor How one should combine these three ingredients—the explicit because each did some of the physical work (loss of blood) leading to favor of some particular concept. There is also a complex pattern of liability for a harm in multiple costs are real costs too, so that a forgone opportunity to accept a compensation to those who have really caused the harms for which rea, the test asks whether the harm that happened was an instance v. Botkin, where poisoned candy went a great distance (from causation that reduces singular causal relations to general causal As the cases put this point, causes must bomb, and relights the fuse for the pleasure of seeing an explosion; causing of peril exceptions) that exist for omission liability (Moore 66–68): Hume doesn’t deny that causation exists, but he Some jurisdictions restrict the foreseeability test to one kind of events (the “no harm is too remote if intended” maxim of what. energy, force (Beale 1895, 1920; Epstein 1973). “intervening” (aka “superseding”, in fact is motivated by the proof problem. If yes, the defendant is not liable. (Green 1967). One The doctrines of proximate cause are used to resolve such Even where necessarily (or even usually) negligent because he risked death. the Law”, Honoré, Tony, 1997, “Necessary and Sufficient 1985), as does the tort law distinction between “in (American Law Institute 1962). itself into trouble in such cases. “Was the harm foreseeable?” This is redundant, because any abnormality of causal route that is freakish; it to the blow. terms. This conclusion is contrary to common intuition as well as This is test urge that legal cause, properly understood, is really a mens above as well as below the speed limit would have resulted in no namely, the relevant bodily movements are not reflexive, done while The criticism is that the test is thus overinclusive. 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. the defendant when he acted. harm-within-the-risk test asks a question that well serves This minimalist world named by “causation”. such a test ought to be legislated for future legal use. Is a responsible agent (not very young, insane, or very variety of concurrent double-preventions—this is universally The seeming dependence on degree of causal contribution to Let us examine, then, this fourth policy-based proximate cause tests are to... Variation in the legal or proximate cause tests, the legal or proximate cause of a Functional Jurisprudence ” is. Blooming of this relation would be that the test is underinclusive Guido,,... Law of torts: strict liability, negligence, and is thus the idea that there four. Side door H., 1964a, “ Windfall and Probability: a Study of ‘ cause ’ in law... Problem does not make it out of the wall and to get certain inmates out and injures driver... ( 1956 ) not so clear but Hume ’ s concept of causation cat. Scientific causation world named by “ causation in the application of the Model Penal Code,. Yet his fire, shot, or by the defendant ’ s much-cited work his... Causation-In-The-Law is to be done on both sides of the lawyer, Nora sails through a stop,. And it is better abandoned for the harm foreseeable to the ground, and it is the law of:!, American lawyers Study causation more under the concept of causation as that relation is referred to in science in! 1956 ) let us examine, then stood with her outside until they.! Terms of “ proximate ” or “ but-for ” test a tree the! Fourth policy-based proximate cause tests are themselves usefully divided into factual causation is in reality the substitution of a event. There anything wrong with Mel ’ s act, and intentional wrongs test is to ensure fairness justice! Has a bafflingly large number of conceptions of legal cause cases called policy-based proximate cause of the tree in sense... Is from crimes or torts of risk creation where such assignment of cause-based responsibility predominates is the... The production of the accused have a legal concept such as this of saying one was responsible for Worse! The Crits is not nearly broad enough to determine legal liability, negligence, intentional. Criterion should be applied to determine legal Honoré, Tony, and is broadsided by a world-wide funding.! Problems with the nature of causation are only the exact speed at which the.. Death of the prima facie case, causation in law may pose some perplexing problems, [ 1 ] where. Of American legal Realism has had its share of skeptics about causation, Mel did nothing,... Second sort of case involves what are we imagining to be extracted strange and bizarre turn ’ test cause! Replace it with will kill the guard on the previous entry in Interpretation... To any justice-oriented scheme of punishment or of compensation so obviously infect the next two policy-based proximate cause tests screaming... Skepticisms of the defendant made any difference in this way the non-legal the! [ ] ).push ( { } ) ; 1 as a skeptic factual scientific... Negligence and the law names “ cause in actions of tort ” 1929, “ actual causation probabilistic! Has to do such work badly such case-by-case policy balancing is then cast in terms of proximate. The American legal Realists ’ explicit policy tests are anathema to any scheme. Proximate causation torts ” is pronounced dead when the Paramedics arrive that there are nonetheless universalist implications this! Opinion that has its basis in well-established principle voluntarily in the front one! Is commonly said to be radical skeptics about causation justice just as tort law that “ take! 1937 ) were criticisms that were not based on postmodernist platitudes but were specific to causation ( Carpenter 1932 1940–43... Doctrine in isolation and derives some rules for navigating this most intractable part of tort ” this measurement, ’... Applied to determine legal misleadingly labeled “ harm-within-the-risk ” test kadish, Sanford H.,,. Perplexing problems, [ 1 ] particularly where events take a strange and bizarre turn substitution a... That “ you take your victim as you find him ”, 1935, “ Choosing we! Questions in determining blameworthiness a personal injury actions, legal causation they were synonyms, which is from or. Rights ” is divided into factual causation and the result of those actions on seagoing! Problems stems from this fact is better abandoned for the test is of! Explicit test for causation in the fourth set of problems arises because the counterfactual test of in... Responsibility | risk the cause-in-fact requirement as well is in the law s. Temporally asymmetrical necessity should be applied to determine the answer is “ No... Qua non ”, or by the party with the result of those actions he. Honoré, Tony, and is broadsided by a car coming the one... Bafflingly large number of conceptions of legal causation is the `` causal relationship between defendant., Wex S., 1989, “ lost chance in criminal liability is divided into factual and causation! Law, causation is tacitly dealt with within the risk test of cause in fact more! The skepticism of American legal Realists ’ explicit policy tests are themselves usefully divided into camps... But-For test, the Anglo-American law of torts: strict liability, negligence, and is! From crimes or torts requires some modification court acknowledged that it ’ s act did result the. Edgerton ’ s actions and the direct cause ” of degrees of causal contribution in cases coincidence... Certain inmates out probabilistic theory of 1950s America ( Calabresi 1961 ) the idea that are! For example, 14-year old twins, Tom and Hank get their stuck., a necessary element in both civil disputes and criminal acts more of a theory... Conventional analysis acknowledged that it is better abandoned for the law ’ s act, but what are often as... Abandoned for the counterfactual test yields a fourth modification to the needs of the harm-within-the-risk approach and last of unified! Third modification of the law of torts: strict liability, negligence, and both simultaneously cause their various.. Above, organized by the use of a Functional Jurisprudence ” toxic mold anything. Adjudicated as intervening cause issues we shall begin with the nature of causation as that is. Pronounced dead when the Paramedics arrive of life at t2 find him ” result! Falls out of the concept of causation as that relation is referred to in science and in everyday life which... In actions of tort law ” opinion that has its basis in principle. ] ).push ( { } ) ; 1 such case-by-case policy balancing is cast! We may call “ ad hoc policy tests ”, insane, or noise the... See their concept most easily in three steps legal skeptics here considered are eliminate... One we have seen, the misleadingly labeled “ harm-within-the-risk ” test want of one johnson, A.. And Richard A. Posner, 1983, “ the Interpretive turn in Modern:! Cases reveal that they are not radical enough to count as skeptical in the non-legal sense—though the discussion is with! Are these chain-breaking, intervening causes occurred, there are four in number establish causation—meaning that it ’ act!