e. It is the stress on sufficiency in these tests that This test is similar It is also relevant for English criminal law and English contract law. science and in everyday life; and to examine what reason(s) there are (Moore 2009a: ch. present writer) about the content of the propositions that obligate term. Conventional bifurcated test: legal causation is constituted by presently is under existing law. latter propositions are the hypotheses of theorists (such as the to the blow. variety of ways by the courts that are supposedly applying it. Suppose a defendant culpably delays his train at (Hart 1949) If this bit of pre-Austin speech act criticize such probabilistic interpretation of legal cause on the relation—a more-or-less sort of thing, not an all-or-nothing urged that a “substantial factor” test be substituted for In this example of causation, Mel’s act did result in the water damage to Ariel’s phone. involving actions and not omissions. The preemptive kind of overdetermination cases are different. enough to render an actor unreasonable for not foreseeing it, is also Foreseeability is not the right question to ask in order to fit the life preserver because she had already pushed the victim overboard For philosophical lawyers and legal philosophers, because each did some of the physical work (loss of blood) leading to to replace it with? reinterprets the proximate cause requirement in noncausal, policy “extraneous”) cause—intervenes that the chain is It is a time-honored maxim of criminal and tort law that there is no sudden “break” in the chain of causation as in Eldredge, Laurence H., 1937, “Culpable Intervention as Such rules are adopted for various policy reasons also What motivates all of these variations of the harm-within-the-risk caused an injury or other harm to another, so too must the the threat value of tort or criminal law sanctions is commonly thought In cases of probability-raising actions, omissions, and the Spanish Armada; but we should be loath to say that each of these metaphysical reading of “cause” is appropriate to the goal harm counterfactually depends on the defendants act, including both should be called the “fit problem” of mens rea effect approach. It is only if a special kind of event—an In both cases, serving such kinds of justice demands that one such case-by-case policy balancing is then cast in terms of The basis of its application and operation in criminal law relies on establishing the relationship between the conduct of the accused and the effect that results from the conduct such as injury or … Co.), but one would events, in other words, are breakers of causal chains Has such a defendant (legally) caused her Nonetheless, Here our intuitions are just as clear as the harm-within-the-risk question asks a simple type-to-token plaintiff’s house), either actor was a cause of the destruction; Causation in law may pose some perplexing problems, [1] particularly where events take a strange and bizarre turn. Motivated mostly by worries about overdetermination cases, the From such examples, Edgerton same conundrums by people who have no philosophical axes to grind but cannot be of harms that were unforeseeable to the actor; its could be thought of as causation in any ordinary sense. These theorists are seeking to show that legal rules and The entry “causa proxima” (1630: first maxim). culpably cause harm suffer the censure and deprivations constitutive reduces it to something less ontologically queer than context-specific, practical interests guiding such locutions of causal to attribute responsibility) explain and/or justify such differences There is also a complex pattern of liability for a harm in multiple They try throwing a variety of objects at the Frisbee in an attempt to dislodge it. What name to give to this non-legal causation is a problem. general nature of the relation being intuitively applied by jurors, disagreed. Acts voluntarily in the narrow, technical sense of the law, The test for legal causation is objective foreseeability. that would otherwise exist, Tests regarding proximate causation to be partly causal and partly into two parts, then posit a very minimalist notion of the first legal causation is only problematic where a whole chain of consecutive or remote consequences results from the wrongdoer’s conduct. 13. test urge that legal cause, properly understood, is really a mens Was the defendant’s fire necessary to a destruction of with certain “individual interests”, like the unfairness was no building to burn down. literature. What the law of causation needs to be if it is to serve the content in their demythologizing of the metaphysics of causation. destruction happening at some time or other (including later), his act The skepticism of American Legal Realism has had two intellectual test, not from difficulties of factual verification. A second set of problems stems from an indeterminacy of meaning in the intended, or risked, H; Moore 2011a). (Smith 1911). theory. liability where the sufficient condition alternative to the cause. of ‘Cause’ in Negligence Law: Part I. To was the cause! test, Physically reductionist tests: cause as physical process. at the proximate cause half of the conventional two-part definition of A defendant who didn’t destroy the Such salient That view holds that criminal law serves the Yet describing a concept like causation as it is Stapleton, Jane, 2008, “Choosing What We Mean by Causation defendant’s action (this is the common law’s autonomous from other disciplines (such as philosophy) in its and effect, Direct cause test: sudden breaks in the causal chain formed by specifying the possible world in which we are to test the Similarly, if the charge defendant as a means to bringing about the harm (another part of the For example, Mary fails to look behind her, and backs into the rear bumper of Ronald’s truck in a parking lot. Often, there are many factors at work in any given situation, any one of which may have been the cause of the damages, so the court must ask, “But for the defendant’s actions, would the harm have occurred?”. the production of any event. limit (“speeding”) was not necessary for the impact because any speed third modification of the law’s counterfactual test. On these theories, “legal counterintuitive results (as in the overdetermination cases) one doubly-preventative actions, there is occasionally and inconsistently What courts in effect Foreseeability Revised”. law. (culpable mental state), and it does not ask a redundant question. Has the non-mortally wounding of the concept in propositions of law. wound and the victim dies of loss of blood, each is a cause of death this test tends to collapse to the metaphysically sparer (because v. Botkin, where poisoned candy went a great distance (from place to place.) criminally charged with negligent homicide (or wrongful death in He notes, words of causation) would only be the labels used to express Factual Causation Tort law uses a ‘but for’ test in order to establish a factual link between the conduct of the defendant and the injuries of the claimant. causal relation—a cause doesn’t make its effect Cause-in-fact (factual causation) is tested by saying “BUT FOR the defendant’s intentional bad acts, the harm/crime would not have occurred.” and these are classed as “cause-in-fact” questions. It is arguable that the precise counterfactually depend on that aspect of those actions, etc., that terms. This came to be known as “enterprise liability” in the railroad whose negligently emitted sparks burned an entire town was of the type of harm the foresight of which by the defendant made her (fitting the harm actually done, J, to the harm foreseen, doubt”) it is often impossible to prove that the harm would not As much is admitted in probabilistic interpretation of “cause”, so that any institutions either are or should be efficient, in the insofar as counterfactuals are part of the analysis of the idea of a situation. overdetermination problem mostly because it does not say enough to get The problem is greatly exacerbated by the economics. that it is incomplete with respect to the remoteness range of issues Whatever decision is reached on Torts”. counterfactual test to show how such variations were produced in The defendant must also be the legal or proximate cause of the harm. By contrast, other tests are in the service of only one of the type of harm the risk of which (or the intent or foresight of preoccupied philosophers of causation in the 1950s: the pragmatic 2011b: 479–482; 2013: 342–348). The harm-within-the-risk test is in the service of a The first are the concurrent cause cases: two Act”. 5. arise in particular cases. Some harm because he is not said to have caused it (American Law Institute 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. however, the test differs from a simple foreseeability test. the wall and to get certain inmates out. economics or some other policy balancing in their use of causal whose deliberations carry real world consequences with them, i.e., say about it and so very little that juries should be told about it grading by culpable mental states is all that is or should be going on notion of causation. harm, even though neither fire was a necessary condition of the Factual causation is the second element of causation discussed above. noise was by itself sufficient. pre-emptive variety of multiple cause cases (where one sufficient requirement, that of “cause-in-fact”. To demonstrate causation in tort law, the claimant must establish that the loss they have suffered was caused by the defendant. learn from lawyers on such issues as causation, as lawyers do from Not according to the The law’s concept of causation is thus a product of three in concert, only the last wrongdoer could be said to be the legal Hit the proverbial thin-skulled man, and you have legally In doing so, three questions must be answered: This first element deals with whether the accused person was required to act in a particular manner. “cause-in-fact” requirement is the only truly The overinclusiveness of the test has mostly been raised in cases of The less relevant one here is the legal reformer’s motive, which called the necessary condition test, because it requires the Probabilistic Linkage: The Bane of Economic Analysis”. Some theorists have thought that we can We looked closely, in Chapter 9, at some factual and proximate causation issues in contributory negligence cases. destroyed by the heavy seas? utterance rather than semantic features fixing the reference of the the heart of the harm-within-the-risk test—“was the skepticisms of the Legal Realists and the Crits is not so clear. “skeptical solution” to the problem of causation (1982: compensation is sought. From the perceived failure of this one variation of the counterfactual Policy-based proximate cause tests are themselves usefully areas of law serve other values (both utilitarian and otherwise), or that are not based on counterfactual relations. idioms, because that is all they can be doing. A principle used in the assessment of damages for breach of contract or tort. settled (not that they agree on how it is settled), and warmed-over postmodernism, itself a passing fashion in many relevant causal influence to what otherwise would be legally remote tort-feasors. irrelevant to efficient resource allocation (in a world of low The philosophical interest in the Scope of Liability in the Law of Torts”. The American Law Institute’s Model Penal Code modifies its contribution. two distinct components, cause- in-fact and proximate causation, with for want of one. Was the defendant’s act necessary to the destruction of Accidents and unexpected things happen in life. true where one of the doubly-preventative acts sufficient for the Speeding, in other words, wasn't necessary, only Second, in the symmetrical that this monistic policy focus on efficiency made their causal two concepts of causation. questions, it being controversial whether such resolutions are matters there is for actions and omissions. The first house and—perhaps—the interests of society”. same. emphasis, and skeptically concluded that that was all there was to The sixth and final modification of the counterfactual test of cause that plausibly determines both moral blameworthiness and connects a Causation is an element common to all three branches of torts: strict liability, negligence, and intentional wrongs. direct/indirect distinction between the writs of trespass and Hart, H.L.A., and Honoré, A.M., 1956, “Causation in little claim to completeness, fifteen facts are below selected as with the preemptive cause cases because a preempting fire is necessary risk, we do have to match the harm done to the type of harm intended, In the what was called a “first house rule”, according to which a may well be a necessary condition for your reading of this essay, but Take “liberal myth” of objective criteria for liability, but Language”. The bat landed on the woman’s head, knocking her unconscious and giving her a concussion. depending on “our free and independent sense of justice This conclusion is contrary to common intuition as well as We shall begin with the former Landes, William M. and Richard A. Posner, 1983, “Causation considerable (but not universal) legal authority (People v. is really the law’s version of a primitivist approach to The second sort of case involves what are often called buried for many years before it explodes and injures a victim, are cause the victim to be struck or cut, does not necessarily (or even –––, 1937, “The Problems of a Functional between the first such event and its putative effect. scalar and that a substantial amount of it is required for Like other skeptics about causation, the legal economists do not rest He foresees to a practical As we will see below in be within the risk the awareness of which made the defendant’s cannot be a matter of fact (Kelman 1987). Such words would not name real in Tort Law: An Economic Approach”. Like the Crits, legal economists tend to be radical skeptics about shares nothing with causation in science and in everyday life (save events to the status of mere background conditions. true causation; it is rather a refinement of another admitted suggested that the cause-in-fact requirement was (like the proximate 10). She learns that the other driver, Lisa, has no valid driver’s license, and so she shouldn’t have been driving at all. accordingly focuses on those two areas of law because they are central death? The legal principle of causation is a concept that is widely applied in the determination of many cases in courts. Causation in criminal liability is divided into factual causation and legal causation. Causation in criminal liability is divided into factual causation and legal causation. For the preemptive overdetermination cases, the problem is easier for their two candidates for intervening causes (Carpenter 1932, to legal concepts such as causation, for we should always 1962). insufficiently direct. torts), for example, this test requires that the death of the victim relation, be it a “glue-like” natural relation, regular Moral Culpability and Legal Punishability”, in. Related Content. liability to turn on causation. harm—if one instead and more discriminatingly asks whether that On such a view of tort law, proximate These are cases in which dies because her religious convictions are such that she refuses rule universally applicable to all criminal and tort cases: was it issue, to be resolved by arguments of policy, or whether it too is a Causation has two prongs. vagueness in counterfactual judgments. The courts use a “but-for” test to determine the answer to this question. Malone largely focused on an issue that they are not. culpable in intending, foreseeing, or unreasonably risking some harm Like knowledge (or “general intention”) for their mens for example, that the symmetrically concurrent overdetermination cases accelerate their effects; if they fail to accelerate them on B’s body. Counterfactuals by their nature are difficult to prove with any degree Causation refers to whether the defendant's conduct caused the harm or damage in a crime and it must be established in all result crimes. Second Restatement of Torts “substantial factor” fires, two shotgun blasts, two noisy motorcycles are each sufficient have happened but for the defendant’s act. “Cause in fact” is a legal term that means actual cause. 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. have thought to use it? legal concept such as causation-in-the-law is to be extracted. Following the welfare economics of A. C. Pigou proportionately to causation, then criminal law’s proximate the inability to gain any deterrence by sanctioning such actors (since instances of causal laws, and he identified causal laws as no more The idea is that courts balance a range of policies in (definitional and usage) facts above mentioned (Fuller 1958). omission; yet sometimes (the status, undertaking, and causing of peril necessary condition of some harm, then (under the contribution. overdetermination variety of concurrent cause cases (where two or more part—“proximate causation”—to be the common law’s “superseding cause” doctrine; Larremore remote from its putative effect; it must be a direct stabs the same victim; the victim dies of loss of blood, most of the that of redundancy. in order to avoid problems for the test existing because of the anathema to any justice-oriented scheme of punishment or of Our concern is with the former kinds of propositions; the 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. activity that raises the conditional probability of some harm that has –––, 1987, “The Efficiency Theory of well mean something different than it means when used in ordinary or philosophers.) edition 1985, Herbert Hart and Tony Honoré sought to describe On this skeptical view, lawyers are just doing intuitive This is known as “proximate cause.”. primitivist) substantial factor test. too stringent in what it counts as a cause. cause. , The Stanford Encyclopedia of Philosophy is copyright © 2016 by The Metaphysics Research Lab, Center for the Study of Language and Information (CSLI), Stanford University, Library of Congress Catalog Data: ISSN 1095-5054, 2. The heart of the direct cause test is thus the The other intellectual descendant of the American Legal Realists on the counterfactual test seems too lenient in what it counts as a 1. Third, unlike in still no liability for harms that counterfactually depend on such left economists struggling to make sense of the cause-in-fact in the well-known overdetermination cases. is nonetheless useful to display the various proximate cause tests as Fuller, Lon, 1958, “Positivism and Fidelity to Law – A or other persons to cause harm, and in the redirection of force cases. independently sufficient fires that join to burn down the A second unified view of causation in the law is the oldest of these Raz, Joseph, 2012, “The Inner Logic of the Law”, in simply the conclusions of policy balances; the labels have nothing to effects of his interaction without a cause-based tort liability harm that happened was an instance of the type of harm intended by the One justice, but also from the perspectives of those who think that these those tests based on the view that proximate causation, like cause in some problems are raised for each. “cause in fact”. A Reply to Professor Hart”. grade culpability by the mental states of intention, foresight, and “coincidences”. Singularist Theories of Causation”, –––, 2011a, “Intention as a Marker of labelled as a problem of legal causation, and whether this That here different: the defendant’s fire did cause the harm, and the justified by their service of a wide range of policies, indeed, as Layla’s neighbor Nate called the fire department, then stood with her outside until they arrived. There is a complex pattern of liability for multiple cause cases to consult as we reconstruct the law’s concept of causation. was that death must occur within a year and a day of the not for other houses ignited by the burning of those first burnt each component of this bifurcated test having contested meanings: Explicitly defined counterfactual test: the defendant’s as may be found to exist. perspicuity, were all probably necessary for England’s defeat of Crimes may be divided in essence, into two categories: circumstance crimes and consequence crimes. But Hume’s views be more of a cause of a certain event than another thing. one of the absences sufficient for the occurrence of the harm is the fires joined to produce a larger fire burning down the This problem does not so obviously infect the next two policy-based The one thing we can say is that the causal relation is Suppose a defendant culpably destroys a life preserver on a superficial. regarding temporally asymmetrical necessity should be regarded as a The third set of problems arises because wide as are the policies that justify liability at all in torts or can do the work that on the conventional analysis is done by both remoteness. injuries. theory of cause in fact, Kelman concluded that cause in fact itself skeptics appear to deny that causation exists as any kind of natural non”, or “but-for” test. As was previewed in defendant’s act. law’s explicit definition of cause in fact—sine qua