A second unified view of causality in law is the oldest of these types of propositions. He understands causality as a metaphysical primitive. Causality is not reducible to any other type of thing or thing, so there is little analysis to be said about it, and so little that juries should be informed of it (Smith 1911). The only thing we can say is that the causal relationship is a scalar relationship, that is, a matter of degree. One thing may be more a cause of a particular event than another. Given the scality of causality, the law need only draw the line of demarcation of responsibility somewhere on the scale that marks the degree of causal contribution. For questions that vary on a smooth continuum, it is notoriously arbitrary to choose an exact breakpoint; Where is the line between middle age and age, red and pink, bald and not bald or caused and not caused? This approach therefore adopts a reasonably vague line, below which the causal contribution to a given injury is ignored for the purposes of assessing liability. The defendant should only be liable for damage if the degree of its causal contribution to that harm has reached a magnitude that is not de minimis or «substantial». This is the original test of the «essential factor» as articulated by Jeremiah Smith in 1911. To the general objection that the test tells us little, its defenders reply that it is a virtue and not a vice, because there is little to say about causality. Like hardcore pornography, causality is something we «can know when we see it» (Potter Stewart`s language on pornography in Jacobellis v.
Ohio) without the need for general definitions and tests (Borgo 1979). Like the Crits, legal economists tend to be radical skeptics about causality. The first major works on causality all express a skepticism about the «causality» that distinguishes any real relationship in the world. From this skeptical point of view, lawyers only make intuitive economic policies or otherwise in their use of causal idioms, because that`s all they can do. Shavell (1980) and Landes and Posner (1983) explicitly rely on Edgerton and pick up exactly where Edgerton began his skepticism, namely in the liability rules for symmetrically competing cases of overdetermination. The other additional point needed is the purpose or value served by legal doctrines that use a concept of causality. Legal concepts are functional (sometimes stylized, «interpretive») concepts because their meaning is shaped by the values they serve in the doctrines in which they appear, just as it is shaped by the linguistic facts (definition and usage) mentioned above (Fuller 1958). Second, even if we limit ourselves to the law of a legal tradition, there will be distinct areas of law within that tradition that will use causality in their rules of liability, such as contracts, torts, property, constitutional law, and criminal law in the Anglo-American legal tradition. Arguably, the exact contours (and perhaps even the central concept) of causality differ between these domains; For example, it is plausible to believe that there is a significant difference between the concept of contract law of consequential damages resulting from a breach and the concept of direct causation in criminal law required to detect a completed criminal offence (Moore 2009a: Appendix). Therefore, in order to ignore any differences between areas of law, this article focuses on what members of the Anglo-American legal tradition consider to be the predominant use of causality in law, which is attributing responsibility to actors who cause harm to others. The areas of law in which such a causal transfer of liability predominates are criminal law and tort. The entry therefore focuses on these two areas of law, as they are central to the use of causality in the Anglo-American legal system (and probably for any system).
These are also the areas of law where causality has been (by far) the most taken into account in law and legal theory. 12. The intention assumed aphrodisiac powers to extend legally relevant causal influences to otherwise legally distant events (the common law maxim «no harm is too far removed if anticipated»; Terry, 1914:17). Preventive cases of overdetermination vary. Here, the two supposed causes are not simultaneous, but ordered temporally. The accused`s fire arrives first and burns the victim`s building; The second fire occurred shortly thereafter and would have been enough to burn the building, except that there was no building to burn. Here our intuitions are as clear as in the simultaneous cases of overdetermination, but these intuitions are different here: the defendant`s fire caused the damage, and the second fire did not. However, the counterfactual analysis again gives the counterintuitive implication that neither fire caused the damage because no fire was needed for the damage (sufficient in each case). Starting with the general political tests of the immediate cause: the first of these are what we can call «ad hoc policy tests». The idea is that, in each case they decide, the courts evaluate a set of guidelines if it has been determined that a defendant has actually caused harm prohibited by law.
They can balance certain «social interests,» such as the need for deterrence, with certain «individual interests,» such as the injustice of surprising a defendant with responsibility (Edgerton 1924). The courts then decide where that balance leads. Whatever decision is taken on a case-by-case basis, it is then laid on «immediate» or «legal» grounds. These labels are only the conclusions of political balances; labels have nothing to do with causality in the ordinary or scientific sense (Green 1929). As we have seen, the Anglo-American law of misdemeanours and felonies contains a surprisingly large number of notions of legal causation. Below is an overview of what has been described above, sorted according to the variables discussed earlier. Consider this last question in light of two well-known types of legal cases. It is an age-old maxim in criminal law and tort that «you take your victim as you find her.» Standard translation: Regardless of how abnormal the victim`s susceptibility to injury may be and how unpredictable these injuries may be, a defendant is legally considered to be the cause of these injuries. Beat the proverbial man with a thin skull, and you legally caused his death when he dies, no matter how rare his condition may be. This is difficult to reconcile with the risky damage test. An accused who intends to beat or cut does not necessarily (or even usually) intend to kill.
A defendant who anticipates that his or her actions will result in the victim being beaten or excated does not necessarily (or even normally) foresee that the victim will die. An accused who negligently risks that his or her actions will result in a victim being beaten or cut is not necessarily (or even usually) negligent because he or she risked death. The problems posed by conventional legal analysis of causality—in the sense of a range from cause to fact and immediate causality—have led some legal theorists to abandon the bifurcation of causality in law and seek a unified concept of causality that is far more discriminatory (in what it admits as cause) than the counterfactual test of cause has made the conventional analysis hopelessly promiscuous. Indeed, one seeks a unified concept of causality that is so discriminatory that it can do the work done in the conventional analysis of causal doctrines of cause and immediate cause. It is far from clear that causation is in fact a sufficiently discriminatory relationship that it can do as much work in assigning responsibility. Nevertheless, there are three such propositions in the legal literature, each with some doctrinal support in law.