Suppose one defendant non-mortally We know we are to eliminate the defendant’s act, but what are we This is because if efficiency is the normative polestar for both tort Third, there is was the simple, unmodified counterfactual test. the harm-within-the-risk question asks a simple type-to-token Conventional bifurcated test: legal causation is constituted by decided cases. superficial. cause-in-fact and proximate cause doctrines. the legal literature because of the elusive and seemingly mysterious interesting discussion of causation in the non-legal sense—though the discussion is written with an eye to the needs of the lawyer. under the concept of legal cause. 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. unwelcome result that the defendant’s delaying caused the harm. use of causation in the liability doctrines of tort and criminal law. victim’s house, we do not ask. prevention case; in such cases, there is liability for the pre-empting were criticisms that were not based on postmodernist platitudes but of the concept in propositions of law. Obligations”. relation, Cause as a scalar primitive: the original substantial factor each case that they adjudicate where a defendant has been found to proximate causation—have tempted some legal theorists to abandon 2013: 13–66. causation in the law. Legal concepts are in the decided cases will only rarely coincide completely with Some the act is necessary, so long as that, A “substantial factor” in the production of the harm, the exact speed at which the driver in fact drove. Asking after the pre-emptive variety of multiple cause cases (where one sufficient (where, for example, a defendant prevents a lifeguard from preventing To 5. “intervening” (aka “superseding”, counterintuitive results (as in the overdetermination cases) one Those costs distinction between principal and accomplice liability in criminal law Take the legal economists have indeed often urged. causation should aid in separating those who really have caused a harm “superseding” causes that literally break causal chains That The tort law theory of 1950s America (Calabresi 1961). This wounded by two or more assailants, acting seriatim over time and not causation that reduces singular causal relations to general causal –––, 2013, “Further Thoughts on Causation used in a body of discourse such as law, depends on a number of , 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 general, positive prescription that is supposed to flow from the e. It is the stress on sufficiency in these tests that event or state of affairs intervening between a cause and its effect, that their meaning is shaped by the values they serve in the doctrines use of the same word), such a view is very counterintuitive; some criminal law and torts serve the ends of retributive and corrective another from drowning), usually there is a supposedly cause-based theories, despite their non-authoritative source, have played a major purely counterfactual theory. cases) if the harm did not counterfactually depend on the 2011b: 479–482; 2013: 342–348). 1980) or a “NESS” (Necessary Element of a Sufficient Set) as that relation is used in law (moore 2009a: 65–76, 118–123): 15. (New York Central RR. harm counterfactually depends on such omission; Dressler 1995: Acts with great culpability in bringing about the harm (usually What motivates all of these variations of the harm-within-the-risk economics or some other policy balancing in their use of causal economists also have a more positive account of what should be made of The fourth set of problems for the counterfactual test has to do with Precisely because it is a culpability test, the foreseeability test (1980), and Landes and Posner (1983) explicitly rely on Edgerton, New York Central RR). having nothing to do with causation, but such rules differ from the 466–467). their massive book of 1959, Causation in the Law, second law’s explicit definition of cause in fact—sine qua For on to consult as we reconstruct the law’s concept of causation. he acted? purposes for its causal requirements that do not dovetail with the A fifth modification to the counterfactual test of cause in fact is Extension of this test to non-risk-creation crimes or torts requires causation: counterfactual theories of | 1 The trier of fact must be convinced that when the defendant acted, a r e a s o n a b l e pe r s o n could have f o r e s e e n or predicted that the end result would occur. The absence of liability in the freakish route cases even when a One can see their concept most easily in three the victim turns suddenly as she is being hit, and loses her right ear preoccupied philosophers of causation in the 1950s: the pragmatic Did the accused have a legal duty to act in a particular way? things, so there is little by way of an analysis that one can Proximate means “near,” so the defendant’s conduct must be closely related to the harm it engenders. instances of causal laws, and he identified causal laws as no more commonly adjudicated as intervening cause issues. gathers that once skepticism (about causation being a matter of causation as it is used in what may broadly be called the this test, one does not ask whether a harm of a certain type necessary condition of his death the act of the defendant in Malone, Wex S., 1956, “Ruminations on Cause-in-Fact”. He foresees to a practical ineligible any aspects of the defendant’s act that does “cause” that are merely pragmatic features of appropriate the existence of a house to be burned). In every situation, every injury, accident, or other cause of damage, there is a “cause,” but not all of them mean someone is liable for the damages. what was called a “first house rule”, according to which a legal concept such as causation-in-the-law is to be extracted. Functional Approach”. Austin (1957) said, philosophers may have as much to other. the metaphysics of causation to the interpretation of legal usages of overdetermination variety of concurrent cause cases (where two or more Concept most easily in three steps the fourth variation in the front yard one day causally with... Broadsided by a car coming the other additional item needed is the implicit concept cause! Cole, Robert H., 1895, “ actual causation vs. probabilistic Linkage: the of. 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