Causation in the Law

In a book contribution responding to H.L.A. Hart and Tony Honoré, Judith Jarvis Thomson casts a certain analysis of causation in an attractive light, but says that it unfortunately faces two objections. I draw attention to another objection.

Extant research has shown that ordinary causal judgments are sensitive to normative factors. For instance, agents who violate a norm are standardly deemed more causal than norm-conforming agents in identical situations. In this paper, we explore two competing explanations for the Norm Effect: the Responsibility View and the Bias View. According to the former, the Norm Effect arises because ordinary causal judgment is intimately intertwined with moral responsibility. According to the alternative view, the Norm Effect is the result of a (...) blame-driven bias. In a series of five preregistered experiments (N = 2688), we present evidence that predominantly favours the Bias View. In particular, and against predictions made by the Responsibility View, we show that participants deem agents who violate nonpertinent or silly norms – norms that do not relate to the outcome at hand – as more causal, and that this effect cannot be explained in terms of plausible mediators such as the agent’s foreknowledge and desire, or the foreseeability of harm. We close with a discussion regarding the implications of these findings, in as regards the just assessment of proximate cause in the law. (shrink)

A gunman intends to shoot and kill Victim. He shoots and misses his target, but the gunshot startles a group of water buffalo, causing them to trample the victim to death. The gunman brings about the intended effect, Victim’s death, but in a “deviant” way rather than the one planned. This paper argues that such causal structures, deviant causal chains, pose serious problems for several key legal concepts. -/- I show that deviant causal chains pose problems for the legal distinction (...) between attempts and completed crimes, and also for the distinction between attempts and mere preparations. I then suggest that cases of deviant causation undermine notions of legal liability for completed crimes in terms of actus reus and mens rea, and argue that natural accounts of negligence misclassify some cases involving deviant causal chains. After diagnosing several conceptual vulnerabilities in the law revealed by deviant causal chains, I show that natural strategies for shoring up legal theories in the face of these examples are unpromising. (shrink)

Explaining the notion of legal luck and exploring its justification. Focusing on how legal luck relates to moral luck, legal causation and negligence, and to civil and criminal liability.

Recently, there has been an increased interest in employing model-based definitions of actual causation in legal inquiry. The formal precision of such approaches promises to be an improvement over more traditional approaches. Yet model-based approaches are viable only if suitable models of legal cases can be provided, and providing such models is sometimes difficult. I argue that causal-model-based definitions benefit legal inquiry in an indirect way. They make explicit the causal assumptions that need to be made plausible to defend a (...) particular claim of actual causation. My argument concerns the analysis of legal cases involving a combination of double prevention and causal redundancy. I show that discussions among legal theorists about such cases sometimes suffer from ambiguous assumptions about the causal structure. My account illustrates that causal models can act as a heuristic tool for clarifying such assumptions, and that causal models provide a framework for more accurate analyses of legal cases involving complex causal structure. (shrink)

“Excited Delirium Syndrome” (ExDS) is a controversial diagnosis. The supposed syndrome is sometimes considered to be a potential cause of death. However, it has been argued that its sole purpose is to cover up excessive police violence because it is mainly used to explain deaths of individuals in custody. In this paper, we examine the epistemic conditions giving rise to the controversial diagnosis by discussing the relation between causal hypotheses, evidence, and data in forensic medicine. We argue that the practitioners’ (...) social context affects causal inquiry through background assumptions that enter inquiry at multiple stages. This analysis serves to better understand the wide usage of the controversial diagnosis of ExDS. (shrink)

To what extent are authors morally culpable for harms caused by their published work? Can authors be culpable even if their ideas are misused, perhaps because they failed to take precautions to prevent harmful misinterpretations? Might authors be culpable even if they do take precautions—if, for example, they publish ideas that others can be reasonably expected to put to harmful uses, precautions notwithstanding? Although complete answers to these questions depend upon controversial views about the right to free speech, this paper (...) argues that five notions from philosophy of law and legal practice—liability, burden of proof, legal causation, mens rea, and reasoning by precedent—can be adapted to provide an attractive moral framework for determining whether an author’s work causes harm, whether and how culpable the author is for causing such harm, steps authors may take to immunize themselves from culpability, and how to responsibly develop new rules for publishing ethics. (shrink)

According to the Polluter Pays Principle, excessive emitters of greenhouse gases have special obligations to remedy the problem of climate change, because they are the ones who have caused it. But what kind of problem is climate change? In this paper I argue that as a moral problem, climate change has a more complex causal structure than many proponents of the Polluter Pays Principle seem to recognize: it is a problem resulting from the interaction of anthropogenic climate effects with the (...) underlying vulnerability and exposure of human communities and other things of value. This means that we should acknowledge more pathways by which human agency contributes to the climate problem and, accordingly, a different landscape of contribution-based remedial responsibilities. (shrink)

In many spheres, the law takes the legal concept of causation to correspond to the folk concept (the correspondence assumption). Courts, including the US Supreme Court, tend to insist on the "common understanding" and that which is "natural to say" (Burrage v. United States) when it comes to expressions relating to causation, and frequently refuse to clarify the expression to juries. As recent work in psychology and experimental philosophy has uncovered, lay attributions of causation are susceptible to a great number (...) of unexpected factors, some of which seem rather peripheral to causation. One of those is the norm effect (Knobe & Fraser, 2008): Agents who, in acting as they do, break a salient norm, are more likely to be considered as having caused a certain consequence than when they do not violate a norm. According to some (e.g., Alicke, 1992) this constitutes a bias. According to others (e.g., Sytsma, 2020), the folk concept of causation is sensitive to normative factors, and there’s nothing wrong with that. In this paper, we explore the question whether the norm effect should be considered a bias from the legal perspective on the one hand, and from the psychological perspective on the other. To do this, we test whether norms which are nonpertinent to the consequences or outright silly also impact causation judgements. The data from two preregistered experiments (total N=593) clearly show they do. This, we argue, makes the bias interpretation plausible from the psychological perspective, and both plausible and problematic from the legal perspective. It also shows that the law should abstain from unreflectively assuming conceptual correspondence between legal and ordinary language concepts. (shrink)

Through case studies in sociology, economics and legal studies, this book advances new philosophical foundations for the methods of the social sciences, providing an account of how to establish or evaluate causal claims, and offering a new way of thinking about evidence-based policy, basic social science research and mixed methods research.

Analyses of factual causation face perennial problems, including preemption, overdetermination, and omissions. Arguably, the thorniest, are cases of omissive overdetermination, involving two independent omissions, each sufficient for the harm, and neither, independently, making a difference. A famous example is Saunders, where pedestrian was hit by a driver of a rental car who never pressed on the (unbeknownst to the driver) defective (and, negligently, never inspected) brakes. Causal intuitions in such cases are messy, reflected in disagreement about which omission mattered. What (...) these analyses mistakenly take for granted, is that at issue is the 'efficacy' of each omission. I argue, on the contrary, the puzzle of omissive overdetermination favors taking the act/omission distinction seriously. Factual causation, properly understood precludes omissions (i.e. omissions are not causal). Of course, the law also attaches liability to omissions, but this works differently from liability for real causes (e.g. omissions have a duty requirement, they also respond differentially to difference-making considerations). The manner in which liability attaches for omissions differs from that of straightforward causal liability, and is entirely dependent on the underlying causal structure. Attention to that structure (e.g. that the driver's hitting the pedestrian with his car is what actually caused the injury) sheds light on which omissions matter (e.g. driver's failure to press on the brakes) and why (because that failure removes a defense the driver would have to liability for the accident he caused). Other cases, where the parties' connection is entirely omissive (e.g. two physicians fail to detect independently lethal conditions), come out differently (tracking moralized elements). The analysis offered makes better sense of both why omissive determination cases are puzzling and how to resolve them. (shrink)

I propose a new formalist account of legal (/proximate) causation – one that holds legal causation to be a matter of amoral, descriptive fact. The account starts with a metaphysical relation, akin to but distinct from common-sense causation, and it argues that legal causation aligns exactly with that relation; it is unified and principled.

Adam Hosein has recently proposed that a sufficient degree of intervening agency between a person’s contribution to an unjust lethal threat and the posing of that threat can exempt the contributor from liability to defensive killing. Hosein suggests that this will exempt most civilians from liability to lethal defence even if they contribute to unjust killings. I argue that intervening agency does not bear on a person’s responsibility for a threat, and does not exempt her from liability to defensive killing.

Policymakers and researchers consistently call for greater human accountability for AI technologies. We should be clear about two distinct features of accountability.

This chapter presents a series of experiments that elicit causal judgments using statements that do not include the verb "to cause". In particular, our interest is in exploring the extent to which previously observed effects of normative considerations on agreement with what we call "cause"-statements, i.e. those of the form "X caused ..." extend as well to those of the form "X V-ed Y", where V is a lexical causative. Our principal finding is that in many cases the effects do (...) not extend in this way, and moreover that the cases where we do find the same pattern are those where the causal verb used has a negative valence of its own. We draw two main conclusions from this finding. First, it reveals how the almost exclusive focus on "cause"-statements in the experimental study of causal judgment has led to findings that are unrepresentative of the full range of ordinary causal thinking, and provides a proof of concept as to how this thinking can be studied in its full variety. Second, the results of our experiments provide significant indirect support for the contention that the effect of moral considerations on agreement with "cause"-statements reflect the fact that these statements are most often used to assign responsibility for an event, and not just to describe the causal structure of what happened. It is not causal judgments in general that result from a process in which normative considerations play a role, but perhaps only those judgments that express a determination of moral responsibility. (shrink)

In this dissertation I develop a pluralist theory of actual causation. I argue that we need to distinguish between total, path-changing, and contributing actual causation. The pluralist theory accounts for a set of example cases that have raised problems for extant unified theories and it is supported by considerations about the various functions of causal concepts. The dissertation also analyses the context-sensitivity of actual causation. I show that principled accounts of causal reasoning in legal inquiry face limitations and I argue (...) that the context-sensitivity of actual causation is best represented by a distinction between default and deviant states in causal models. (shrink)

Collective Action, Philosophy and Law brings together two important strands of philosophical analysis. It combines general philosophical inquiry into collective agency with analyses of specific questions about plural entities and activities in the legal domain. These are issues of growing interest in areas of philosophy like action theory and social ontology, as well as in philosophy of law. The book contains thirteen original chapters written by an international team of leading philosophers and legal theorists, and is divided into four clear (...) parts: The nature of law and of legislative intention Practical reasoning and duties Causality, blameworthiness, and responsibility Citizens, states, and institutions. These sections cut across, and build on, different accounts to advance the debate on classical and new issues in collective agency. Each part also features legal-philosophical analyses that draw on general accounts of collective agency to cast new light on the law, descriptive as well as normatively. Collective Action, Philosophy and Law is the first major interdisciplinary and multi-authored work bridging legal and philosophical approaches to collective agency. As such, it is essential reading for students and researchers of philosophy of law, ethics, political philosophy, jurisprudence, and legal theory. (shrink)

The use of machine learning algorithms has become ubiquitous in hiring decisions. Recent studies have shown that many of these algorithms generate unlawful discriminatory effects in every step of the process. The training phase of the machine learning models used in these decisions has been identified as the main source of bias. For a long time, discrimination cases have been analyzed under the banner of disparate treatment and disparate impact, but these concepts have been shown to be ineffective in the (...) context of AI. This paper examines the possibility of studying algorithmic discrimination from the perspective of negligence law. Negligent selection and validation of datasets and classifiers is a salient cause of improper training in machine learning. It is a breach of an employer’s duty to protect others, a failure of its exercise of due care in the manner of choosing employees. Adopting negligence to algorithmic discrimination requires a reformulation of what is foreseeable and reasonable within the context of black box algorithms, and a shift in the burden of proof to the employer, who must present evidence of its efforts to avoid bias. (shrink)

Brain-computer interfaces allow agents to control computers without moving their bodies. The agents imagine certain things and the brain-computer interfaces read the concomitant neural activity and operate the computer accordingly. But the use of brain-computer interfaces is problematic for criminal law, which requires that someone can only be found criminally responsible if they have satisfied the actus reus requirement: that the agent has performed some (suitably specified) conduct. Agents who affect the world using brain-computer interfaces do not obviously perform any (...) conduct, so when they commit crimes using brain-computer interfaces it is unclear how they have satisfied actus reus. Drawing on a forthcoming paper by Allan McCay, I suggest three potential accounts of the conduct that satisfies actus reus: the agent’s neural firings, his mental states, and the electronic activity in his brain-computer interface. I then present two accounts which determine how actus reus may be satisfied – one a counterfactual and the other a minimal sufficiency account. These accounts are lent plausibility because they are analogous to the but-for and NESS (Necessary Element in a Sufficient Set) tests for causation which are generally accepted tests for causation in legal theory. I argue that due to the determinations of these accounts and considerations regarding the relationship between the mind and brain, actus reus is satisfied by either the agent’s neural activity or brain-computer interface electrical activity. Which of these satisfies actus reus is determined by how well the brain-computer interface is functionally integrated with the agent. (shrink)

Die Rechtsontologie ist eine Analyse der Existenzweise des Rechts und seiner kausalen und rechtfertigenden Verhältnisse mit anderen Seinsbereichen, vor allem Natur und Kultur. Es wird dargestellt, wie Rechtsnormen und -begriffe in Kausalzusammenhängen mit der menschlichen biologischen Natur und mit der darauf aufbaudenden Kultur existieren. Berücksichtigt werden geistige, materielle, soziale, institutionelle und normative Aspekte der Existenz von Rechtsordnugen und des Naturrechts. Grundkategorien der Ontologie und Epistemologie wie Ursache, Grund, Motiv, Argument, Bewusstsein und Zweck werden hinsichtlich ihrer Bedeutung für die Rechtsphilosophie ausführlich (...) erörtert. Das Buch weist den Weg für die Überwindung traditioneller Dualismen wie denen von Sein und Sollen, Teleologie und Normativität, interner und externer Perspektive und – im prozessrechtlichen Bereich – Tat- und Rechtsfrage. Fundiert werden die Erkenntnisse auf fundamentalen Einsichten der vormodernen Metaphysik und der gegenwärtigen empirischen Forschung, beides im Gegensatz zu der Naivität relativistischer Tendenzen des modernen Zeitgeistes. (shrink)

There is ample evidence that violations of injunctive norms impact ordinary causal attributions. This has struck some as deeply surprising, taking the ordinary concept of causation to be purely descriptive. Our explanation of the findings—the responsibility view—rejects this: we contend that the concept is in fact partly normative, being akin to concepts like responsibility and accountability. Based on this account, we predicted a very different pattern of results for causal attributions when an agent violates a statistical norm. And this pattern (...) has been borne out by the data. These predictions were based on the responsibility attributions that we would make. In this paper, I extend these previous findings, testing responsibility attributions. The results confirm the basis of our predictions, showing the same pattern of effects previously found for causal attributions for both injunctive norms and statistical norms. In fact, the results for responsibility attributions are not statistically significantly different from those previously found for causal attributions. I argue that this close correspondence lends further credence to the responsibility view over competing explanations of the impact of norms on causal attributions. (shrink)

This invited entry offers a brief overview of criminal responsibility. -/- The first part starts with a question: is Clyde criminally responsible for killing his girlfriend Bonnie? The answer: it depends. Particular circumstances determine whether Clyde is guilty of murder, guilty of manslaughter, not guilty because he has a good excuse, or not guilty because he has a good justification. -/- The second part addresses the complicated relationship between criminal responsibility and moral responsibility. Until recently, both concepts were considered to (...) be more or less interchangeable. But there is a growing movement, which I refer to as "responsibility skepticism," which maintains that moral responsibility is either physically or metaphysically impossible. If the responsibility skeptics are right (that moral responsibility is impossible), then what are the implications for criminal responsibility and just criminal punishment? Should we abandon these as well? Or can they survive without moral responsibility? I try to answer these questions. -/- The third part addresses social causation. The criminal justice system tends to be "dispositionalist"; it tends, that is, to assume that criminal responsibility resides entirely within the defendant. Dispositionalism, however, overlooks the fact that who we are and what we do are significantly determined by environmental influences. I then try to show that this "situationist" alternative to dispositionalism should not radically alter our approach to criminal punishment. -/- The final part briefly discusses the difficulty in evaluating criminal responsibility when the defendant is both an offender and a victim - especially when the defendant is an offender *because* of his victimization. (shrink)

Many theories in philosophy, law, and psychology, make no distinction in meaning between causing and enabling conditions. Yet, psychologically people readily make such distinctions each day. In this paper we report three experiments, showing that individuals distinguish between causes and enabling conditions in brief descriptions of wrongful outcomes. Respondents rate actions that bring about outcomes as causes, and actions that make possible the causal relation as enablers. Likewise, causers (as opposed to enablers) are rated as more responsible for the outcome, (...) as liable to longer prison sentences, and as liable to pay higher fines. Moreover, the more actors involved, the more blame volume there is psychologically to be apportioned between them. The implication is that theories and the law in practice, both criminal and civil, may dangerously mismatch the intuitions of those to whom they are supposed to apply. The findings are discussed in light of contemporary psychological theories of how people reason about cause. -/- The paper presents the extended findings supplementary to the conference paper: Frosch, C. A., Johnson-Laird, P. N., Cowley, M. (2007). Don’t blame me your Honor, I’m only the enabler. Proceedings of the Twenty–Ninth Annual Conference of the Cognitive Science Society, p. 1755, Mahweh, N. J: Erlbaum. Nashville, USA. *Main findings now cited in the Oxford Handbook of Causal Reasoning. (shrink)

Complicity marks out a way that one person can be liable to sanctions for the wrongful conduct of another. After describing the concept and role of complicity in the law, I argue that much of the motivation for presenting complicity as a separate basis of criminal liability is misplaced; paradigmatic cases of complicity can be assimilated into standard causation-based accounts of criminal liability. But unlike others who make this sort of claim I argue that there is still room for genuine (...) complicity in the law and in morality. In defending this claim, I sketch an approach to complicity which grounds our liability for what others do not in our causal relation to their actions but in our “agency-relations” with others. In such cases, one agent can be liable for the wrongs of second agent to the extent that first authorizes the second to act at her behest. This approach fills the gap where standard causation-based accounts of complicity fail – especially in where several agents cooperatively contribute to an overdetermined harm. (shrink)

This paper poses an original puzzle about the relationship between causation and moral responsibility called The Moral Difference Puzzle. Using the puzzle, the paper argues for three related ideas: (1) the existence of a new sort of moral luck; (2) an intractable conflict between the causal concepts used in moral assessment; and (3) inability of leading theories of causation to capture the sorts of causal differences that matter for moral evaluation of agents’ causal contributions to outcomes.

This paper combines the ancient idea that causes necessitate their effects with Angelika Kratzer’s semantics of modality. On the resulting view, causal claims quantify over restricted domains of possible worlds determined by two contextually determined parameters. I argue that this view can explain a number of otherwise puzzling features of the way we use and evaluate causal language, including the difference between causing an effect and being a cause of it, the sensitivity of causal judgements to normative facts, and the (...) semantics of causal disagreements. (shrink)

In this book, it is shown that moral integrity is necessary for psychological integrity and, therefore, that it is not possible to live well without living ethically. In the process of establishing this profound truth, Dr. Kuczynski explains what right and wrong are and how we know the difference between the two.

According to the conventional view, causal and moral responsibility have a strict hierarchical relationship. Determining causal responsibility comes first; then we sort through the factors to which we have assigned causal responsibility and determine which, if any, should be assigned moral responsibility too. Moral inquiry accordingly stands not only apart but also above causal inquiry. But I am going to argue that this way of looking at causal and moral responsibility is a mistake. Rather than being separate and independent inquires (...) with different purposes and concerns, I am going to argue that finding causal responsibility actually entails finding moral responsibility even when there is no evidence of what we would call traditional fault. Indeed, I am going to argue we cannot find someone causally responsible without finding them morally responsible too. (shrink)

Many recent decisions in tort law attempt to combine two conceptually incommensurable features: a traditional 'but for' test of factual causation, and the scientific or medical evidence that is required to explain how some injury occurred. Even when applied to macroscopic objects, the 'but for' test fails to identify causes, because it merely rephrases in the language of possible worlds what may be inferred from what is inductively known about the actual world. Since scientific theories explain the occurrence of events (...) without reference to causes, this test of causation is not only ineffectual but also inapplicable to scientific or medical evidence. Tort law, therefore, should abandon the 'but for' test; when scientific or medical evidence is required in a tort case, the courts should rely on the explanatory strategies that function within the theories from which they borrow such evidence. (shrink)

This paper deals with the relationship between legal responsibility and causation. I argue that legal responsibility is not necessarily rooted in causation. The general claim I aim to disprove is that responsibility is descriptive because it is fundamentally rooted in causality, and causality is metaphysically real and founded. My strategy is twofold. First, I show (in §1) that there are significant and independent non- causal form of responsibility that cannot be reduced to causal responsibility; second, in §2, I show that (...) the very notion of causality is— lato sensu—not plainly descriptive. I will suggest that even causation is tied to evaluative elements, contrary to what is assumed by many theorists and practitioners working in normative domains. (shrink)

The Normative Structure of Responsibility deals with responsibility in legal, moral, and linguistic contexts. The book builds on conceptual analysis and data from everyday language, ethics, and the law in order to defend the thesis that responsibility is fundamentally normative, that is, it cannot be reduced to purely descriptive factors. The book is divided in three parts: the first part draws a conceptual map of various responsibility concepts, conceptions and conditions and their interaction with different kinds of rules; the second (...) part engages with arguments in favour of a descriptive understanding of responsibility based on ethics, neuroscience, and metaphysics and argues against it; the third part investigates the language of responsibility and its use in formal and informal contexts. (shrink)

This paper makes the case for a wider acceptance of a probabilistic approach to causation in negligence. This acceptance would help to remove much of the incoherence which has come to afflict the English law of personal injury law. This incoherence can also be found in other common law jurisdictions (notably those of the United States, Canada and Australia). Concentrating upon recent UK case law, the argument opposes the contention that ‘naked statistics’ can play no role in establishing causation. The (...) argument is controversial but it can be reduced to three unremarkable grounds: (1) With its acceptance (albeit in certain carefully prescribed circumstances) of liability for a negligently increased risk which has eventuated, the common law has already embraced a probabilistic conception of causation; (2) The English common law already employs a probabilistic (frequentist) approach to identifying coincidences; and (3) With the ‘balance of probabilities’ as the standard of proof in civil cases, the common law has long had a probabilistic (epistemic) concept at its core. Probabilistic approaches (at both the type and token level) are shown to be consistent with laypersons’ understanding of the concepts such as risk, chance, odds and likelihood. Moreover, a wider acceptance of a probabilistic perspective on causation would entail no major challenge to the fundamental aims of tort, viz. deterrence and corrective justice. (shrink)

In the 1950s and 60s, H. L. A. Hart's writings were responsible for the revitalizing of legal philosophy in the UK and worldwide. This new collection of essays by distinguished philosophers and legal theorists addresses the enduring significance of Hart's work, focusing upon some of its more neglected aspects, including his work on causation and the philosophy of action. Two essays discuss Hart and Honore;'s Causation in the Law, a book that has been undeservedly overlooked in many philosophical discussions of (...) causation. The majority of the essays consider Hart's views on the justification of punishment. They discuss Hart's dislike of retribution, his claim that harmless immorality should not be punished, and his search for a non-retributivist theory of mens rea and excuses. Other topics examined include Hart's definitions of key legal and philosophical concepts, including 'punishment', 'responsibility' and 'voluntariness', and his views on punishing negligent acts. (shrink)

Causal selection is the cognitive process through which one or more elements in a complex causal structure are singled out as actual causes of a certain effect. In this paper, we report on an experiment in which we investigated the role of moral and temporal factors in causal selection. Our results are as follows. First, when presented with a temporal chain in which two human agents perform the same action one after the other, subjects tend to judge the later agent (...) to be the actual cause. Second, the impact of temporal location on causal selection is almost canceled out if the later agent did not violate a norm while the former did. We argue that this is due to the impact that judgments of norm violation have on causal selection—even if the violated norm has nothing to do with the obtaining effect. Third, moral judgments about the effect influence causal selection even in the case in which agents could not have foreseen the effect and did not intend to bring it about. We discuss our findings in connection to recent theories of the role of moral judgment in causal reasoning, on the one hand, and to probabilistic models of temporal location, on the other. (shrink)

This paper considers and criticises what appears to be a suggestion by Hart and Honore in 'Causation in the Law' that there is a category of basic doings, which ought not themselves to be regarded as causings. It argues instead that all actions are causings by the agent.

A provision’s legal meaning is thought by many to be a function of its literal meaning. To explain the appearance that lawyers are arguing over a provision’s legal meaning and not just over which outcome would be more prudent or morally preferable, some legal literalists claim that a provision’s literal meaning may be causally, rather than conventionally, determined. I argue, first, that the proposed explanation is inconsistent with common intuitions about legal meaning; second, that explaining legal disagreement as a function (...) of the causally determined meanings of moral terms requires, but lacks, a causal semantics which is clearly consistent with the scope of moral disagreement. Finally, I suggest that an element of the theory of language invoked by ‘causal’ legal literalists might be better deployed as part of an intentionalist account of legal practice. (shrink)

Unlike any other monograph on legal liability, Michael S. Moore’s book CAUSATION AND RESPONSIBILITY contains a well-informed and in-depth discussion of the metaphysics of causation. Moore does not share the widespread view that legal scholars should not enter into metaphysical debates about causation. He shows respect for the subtleties of philosophical debates on causal relata, identity conditions for events, the ontological distinctions between events, states of affairs, facts and tropes, and the counterfactual analysis of event causation, and he considers all (...) these issues relevant to law. In this contribution, I defend an amended version of the COUNTERFACTUAL theory of event causation both against Moore’s criticism and against some traits of Lewis’s version of the theory. On a number of counts, I simply defend Lewis against Moore’s misdirected criticism. Moore’s unreasonable demand that all the commonplaces about causation have to FOLLOW from the counterfactual analysis rests on his mistaken claim that the counterfactual theory IDENTIFIES causation with counterfactual dependence. In other respects, I part company with Lewis in order to highlight some underrated strengths of the counterfactual approach. The common denominator of my revisions is that they make the counterfactual theory unambiguously singularist. The suggested revisions comprise: performing the counterfactual analysis with Davidsonian rather than with Lewisian events, taking seriously the ex post-character of singular causal statements, making explicit the indexical ceteris paribus clause that fixes the actual circumstances of the causing event, abandoning the alleged transitivity of causation, and, last but not least, doing everything in the correct order. The correct order is to start with bedrock intuitions about the nature of causality rather than with a general possible world semantics, and then to turn these intuitions into constraints for the class of counterfactuals that a counterfactual analysis of causation has to consider. (shrink)

A. Poleev. Constitutional order in Russia. Enzymes, Revised print edition 2020.

Intended and merely foreseen consequences: The psychology of the ‘cause or allow’ offence. A short report for the Socio-Legal Community on ESRC Grant RES-000-22-3114.