What conception of causation is at work in the law? I argue that the law implicitly relies on a contrastive conception. In a liability case where the defendant's breach of duty must be shown to have caused the plaintiff's damages, it is not enough to consider what would have happened if the cause had not occurredthe law requires us to look to a specific replacement for the effect, which in this case is the hypothetical outcome in which the plaintiff (...) came off better. In place of I suggest the more explicit An explicitly contrastive approach can thus potentially help the lawyer phrase her causal question in a more explicit way, while shedding light on our conception of causation. (shrink)

An updated and extended second edition supporting the findings of its well-known predecessor which claimed that courts employ common-sense notions of causation in determining legal responsibility.

An updated and extended second edition supporting the findings of its well-known predecessor which claimed that courts employ common-sense notions of causation in determining legal responsibility.

The authors ably demonstrate the value and relevance of sophisticated conceptual analysis in law. Such concepts as cause, reason, consequence, condition, opportunity, and explanation are carefully investigated. The use of the causal notions in the Anglo-American tradition of tort, contract, and criminal law, as well as in continental theories, is examined in detail. A book of importance which carries out English analysis in a subtle and exciting way. It is sure to be one of the lasting contributions of the recent (...) analytic movement.--A. P. D. M. (shrink)

Hart and Honoré contend, in their book Causation in the Law, that causal appraisals in everyday life and in the law can be made, with justifiable confidence, without appealing to relevant general laws; that in order to grasp the workings of causal notions in everyday life and the law, it is sufficient to note that causes are events which interfere with or intervene in the course of events which would normally have taken place. This thesis is criticized on the (...) ground that what purport to be purely causal appraisals are hopelessly vulnerable to moral considerations, especially when such appraisals are presumed to take place in complete independence of scientific theory. (shrink)

In their important book, Causation in the Law, H. L. A. Hart and Tony Honore argue that causation in the law is based on causation outside the law, that the causal principles the courts rely on to determine legal responsibility are based on distinctions exercised in ordinary causal judgments. A distinction that particularly concerns them is one that divides factors that are necessary or sine qua non for an effect into those that count as causes for purposes (...) of legal responsibility and those that do not. Hart and Honore claim that this distinction is often one of fact rather than of legal policy, and that the factual basis is to be found in the ordinary distinction we draw between causes and 'mere conditions'. If this claim is correct, we may hope to illuminate the legal distinction by articulating the principles behind the ordinary one. This is a challenging task since, as in the case of most cognitive skills, we are far better at making particular judgments than we are at stating the general principles that underlie them. Hart and Honore devote the first part of their book to this difficult task. We have, then, two large projects. One is to articulate our ordinary notion of causation, especially the distinction between cause and mere condition. This is the project of constructing an 'ordinary model'. The other is to argue for what we may call the 'shared concept claim', the claim that the concept of legal cause is based on the ordinary notion of causation, that 'causal judgments, though the law may have to systematize them, are not specifically legal. They appeal to a notion which is part of everyday life' (1985, p. lv; all references to follow are from this edition). This essay will focus on Hart and Honore's ordinary model, rather than on their shared concept claim. In my judgment, Hart and Honore's case for some version of the shared concept claim is strong, so they are right to maintain that a better understanding of our ordinary notion of.. (shrink)

Donald Davidson has two central aims in his celebrated paper ‘Mental Events.’ First, he argues for the impossibility of ‘strict … laws on the basis of which mental events can be predicted and explained’. I shall call the resulting view ‘mental anomalism.’ Second, he argues, based partially on this impossibility, for a version of monism which holds that every mental event is token-identical with some physical event. This second aim puts constraints on how the argument for mental anomalism can plausibly (...) proceed. That argument cannot assume anything that presupposes monism or adversely affects the argument for it. When elaborated, this constraint by itself rules out otherwise attractive conceptions of how the argument for mental anomalism works. More generally, in order to be compelling, the overall argument for anomalous monism ought not to incorporate excessively controversial presuppositions even if they do not themselves beg any questions about monism. The argument needs to be built upon relatively intuitive premises. (shrink)

Donald Davidson has two central aims in his celebrated paper ‘Mental Events.’ First, he argues for the impossibility of ‘strict … laws on the basis of which mental events can be predicted and explained’. I shall call the resulting view ‘mental anomalism.’ Second, he argues, based partially on this impossibility, for a version of monism which holds that every mental event is token-identical with some physical event. This second aim puts constraints on how the argument for mental anomalism can plausibly (...) proceed. That argument cannot assume anything that presupposes monism or adversely affects the argument for it. When elaborated, this constraint by itself rules out otherwise attractive conceptions of how the argument for mental anomalism works. More generally, in order to be compelling, the overall argument for anomalous monism ought not to incorporate excessively controversial presuppositions even if they do not themselves beg any questions about monism. The argument needs to be built upon relatively intuitive premises. (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)

The traditional, intuitively appealing, test for causation in tort law, known as 'the but-for test' has been subjected to what are widely believed to be devastating criticisms by Tony Honore, and Richard Wright, amongst others. I argue that the but-for test can withstand these criticisms. Contrary to what is now widely believed. there is no inconsistency between the but-for test and ordinary language, commonsense, or sound legal principle.

This article discusses some philosophical theories of causation and their application to several areas of science. Topics addressed include regularity, counterfactual, and causal process theories of causation; the causal interpretation of structural equation models and directed graphs; independence assumptions in causal reasoning; and the role of causal concepts in physics. In connection with this last topic, this article focuses on the relationship between causal asymmetries, the time-reversal invariance of most fundamental physical laws, and the significance of differences among (...) varieties of differential equations in causal interpretation. It concludes with some remarks about “grounding” special science causal generalizations in physics. (shrink)

Consensus in the contemporary philosophical literature has it that conserved quantity theories of causation such as that of Dowe [2000]—according to which causation is to be analysed in terms of the exchange of conserved quantities (e.g., energy)—face damning problems when confronted with contemporary physics, where the notion of conservation becomes delicate. In particular, in general relativity it is often claimed that there simply are no conservation laws for (say) total-stress energy. If this claim is correct, it is difficult (...) to see how conserved quantity theories of causation could survive. In this article, we resist the above consensus and defend conserved quantity theories from this conclusion, at least when focusing on the apparent problems posed by general relativity. We argue that this approach to causation can continue to be defended in general relativity, once one appreciates (a) the availability of approximate symmetries in generic general relativistic spacetimes, and (b) the role of modelling and idealisation in that theory. Given these points, conserved quantity theories of causation must stand or fall on other grounds. (shrink)

Reasoning about causation in fact is an essential element of attributing legal responsibility. Therefore, the automation of the attribution of legal responsibility requires a modelling effort aimed at the following: a thorough understanding of the relation between the legal concepts of responsibility and of causation in fact; a thorough understanding of the relation between causation in fact and the common sense concept of causation; and, finally, the specification of an ontology of the concepts that are minimally (...) required for (automatic) common sense reasoning about causation. This article offers a worked-out example of the indicated analysis. Such example consists of: a definition of the legal concept of responsibility (in terms of liability and accountability); a definition of the legal concept of causation in fact (in terms of the initiation of physical processes by an agent and of the provision of reasons and/or opportunities to other agents); CausatiOnt, an AI-like ontology of the common sense (causal) concepts that are minimally needed for reasoning about the legal concept of causation in fact (in particular, the concepts of category, dimension, object, agent, process, event and act). (shrink)

Inductive thinking is a universal human habit; we generalise from our experiences the best we can. The induction problem is to identify which observed regularities provide reasonable justification for inductive conclusions. In the natural sciences, we can often use strict laws in making successful inferences about unobserved states of affairs. In the social sciences, by contrast, we have no strict laws, only regularities which most often are conditioned on ceteris paribus clauses. This makes it much more difficult to make reliable (...) inferences in the social sciences. In particular, we want knowledge about general causal relations in order to be able to determine what to do in order to achieve a certain state of affairs. Knowledge about causal relations that are also valid in the future requires experiments or so called ‘natural experiments’. Only knowledge derived from such experiences enable us to draw reasonably reliable inferences about how to act in order to achieve our goals. (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 (...) class='Hi'>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)

If, as I argue, the law of karma is a special application of the causal law to moral causation, then one has to account for the differences between the two laws. One possibility is to distinguish between "phalas" (immediate effects actions produce in the world) and "samskaras" (invisible dispositions or tendencies to act or think), and to suggest that karma produces the latter but not the former. This subjectivist account, however, raises questions concerning the relation between a person's "samskaras" (...) and the environmental conditions that cause him pleasure and pain. (shrink)

There is the general philosophical question concerning the relationship between physics, which is often taken to be our fundamental and all-encompassing science, on one hand and the special sciences, such as biology and psychology, each of which deals with phenomena in some specially restricted domain, on the other. This paper deals with a narrower question: Are there laws in the special sciences, laws like those we find, or expect to find, in basic physics? Three arguments that are intended to show (...) that there are no such laws are presented and examined. The paper ends with brief remarks concerning the implications of these arguments for explanation and causation in the special sciences. (shrink)

Tort law depends on three key concepts: causation, responsibility, and fault. However, I argue that the three key concepts are neither necessary, nor sufficient, for tort.

Through a comprehensive analysis of sixteen European legal systems, based on an assessment of national answers to a factual questionnaire, Causation in European Tort Law sheds light on the operative rules applied in each jurisdiction to factual and legal causation problems. It highlights how legal systems' features impact on the practical role that causation is called upon to play, as well as the arguments of professional lawyers. Issues covered include the conditions under which a causal link can (...) be established, rules on contribution and apportionment, the treatment of supervening, alternative and uncertain causes, the understanding of loss-of-a-chance cases, and the standard and the burden of proving causation. This is a book for scholars, students and legal professionals alike. (shrink)

In his Masterly Study of the Presocratic philosophers, Jonathan Barnes considers the refinements made by the early Greek sophists to the related concepts of cause and responsibility. Barnes judges Gorgias's Helen to have treated "in philosophical depth the issue of responsibility," in apparent contrast to Antiphon's second tetralogy, which, presumably, does not.1 The tetralogy itself comprises four speeches, two each by an imaginary plaintiff and a fictitious defendant. Certain facts are undisputed. In the course of an athletic contest among youths (...) of training age, the defendant threw his javelin with the intention of hitting the prescribed target. Instead, the javelin hit a young man charged with picking up .. (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)

The epistemological analysis offered in this paper reveals that a combination of pieces of evidence, none of them sufficient by itself to warrant a causal conclusion to the legally required degree of proof, may do so jointly. The legal analysis offered here, interlocking with this, reveals that Daubert’s requirement that courts screen each item of scientific expert testimony for reliability can actually impede the process of arriving at the conclusion most warranted by the evidence proffered.

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)

In the present commentary on Jaegwon Kim's Laws, Causation, and Explanation in the Special Sciences, I first give a short summary of the global problem. In a second step, I go on to sum up and comment on the three arguments which Kim gives to the disadvantage of 'strict' special-science laws. In so doing, I shall focus on the question whether ceteris paribus laws can still apply in special sciences.

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)

More and more, judges and juries are being asked to handle torts and other cases in which establishing liability involves understanding large bodies of complex scientific evidence. When establishing causation is involved, the evidence can be diverse, can involve complicated statistical models, and can seem impenetrable to non-experts. Since the decision in Daubert v. Merril Dow Pharms., Inc.1 in 1993, judges cannot simply admit expert testimony and other technical evidence and let jurors decide the verdict. Judges now must rule (...) on which experts are admissible and which are inadmissible, and they must base their ruling at least partly on the status of the scientific evidence about which the expert will testify.2 This article is intended to provide judges with an accessible methodological overview of causal science. (shrink)

Deciding matters of legal liability, in torts and other civil actions, requires deciding causation. The injury suffered by a plaintiff must be caused by an event or condition due to the defendant. The courts distinguish between cause-in-fact and proximate causation, where cause-in-fact is determined by the “but-for” test: the effect would not have happened, “but for” the cause.1 Proximate causation is a set of legal limitations on cause-in-fact.

1. Of what use is the concept of causation? Bertrand Russell [1912-13] argued that it is not useful: it is “a relic of a bygone age, surviving, like the monarchy, only because it is erroneously supposed to do no harm.” His argument for this was that the kind of physical theories that we have come to regard as fundamental leave no place for the notion of causation: not only does the word ‘cause’ not appear in the advanced sciences, (...) but the laws that these sciences state are incompatible with causation as we normally understand it. But Nancy Cartwright has argued [1979] that abandoning the concept of causation would cripple science; her conclusion was based not on fundamental physics, but on more ordinary science such as the search for the causes of cancer. She argues that Russell was right that the fundamental theories of modern physics say nothing, even implicitly, about causation, and concludes on this basis that such theories are incomplete. It is with this cluster of issues that I will begin my discussion. (shrink)