Online research in philosophy

This paper, written in French, discusses legal causation in the light of recent developments in English Tort law.

This paper takes it as a premise that a distinction between matters of fact and of law is important in the causal inquiry. But it argues that separating factual and legal causation as different elements of liability is not the best way to implement the fact/law distinction. What counts as a cause-in-fact is partly a legal question; and certain liability-limiting doctrines under the umbrella of “legal causation” depend on the application of factual-causal concepts. The contrastive account of factual causation proposed in this paper improves matters. This account more clearly distinguishes matters of fact from matters of law within the cause-in-fact inquiry. It also extends the scope of cause-in-fact to answer some questions currently answered by certain doctrines of legal causation—doctrines that, it is argued, are more naturally seen as applications of our ordinary causal concept than as noncausal liability-limiting devices.

Mackie, J. L. Causes and conditions.--Taylor, R. The metaphysics of causation.--Scriven, M. Defects of the necessary condition analysis of causation.--Kim, J. Causes and events: Mackie on causation.--Anscombe, G. E. M. Causality and determination.--Davidson, D. Causal relations.--Wright, G. H. von. On the logic and epistemology of the causal relation.--Ducasse, C. J. On the nature and the observability of the causal relation.--Sellars, W. S. Counterfactuals.--Chisholm, R. M. Law statements and counterfactual inference.--Rescher, N. Belief-contravening suppositions and the problem of contrary-to-fact conditionals.--Stalnaker, R. A theory of conditionals.--Lewis, D. Causation.--Kim, J. Causes and counterfactuals.

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.

Introducing quantitative rigor into the legal process has been proposed to reduce error and uncertainty in litigation. One area of law that would seem to be a candidate for such formalism would be proving causation. Yet most legal scholars balk at the idea that the legal principles of causation are based on anything as precise as, say, scientific causation. We believe that counterfactual analysis, a relatively recent trend in the philosophy of causation that is being applied in the social sciences, has a role in understanding causation in at least one important area of the law-shareholder class actions. The increasingly strict standards imposed by the Supreme Court over the past twenty years, culminating in the Dura decision, can be understood in the context of counterfactual analysis establishing loss causation. This approach then has important implications for estimating damages in shareholder class actions.

Humean accounts of law are at the same time accounts of causation. Accordingly, since laws are nothing but contingent cosmic regularities, to be a cause is just to be an instance of such a law. Every particular cause-effect pair, according to these accounts, instantiates some law of nature. I argue that this claim is false. Singular causation without being governed by any law is logically and physically possible. Separating causes from laws enables us to see the distinct role each plays in science, especially in matters related to prediction and explanation.

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.

Michael Moore’s Causation and Responsibility offers an integrated conception of the law, morality, and metaphysics, centered on the notion of causation, grounded in a detailed knowledge of case law, and supported on every point by cogent argument. This is outstanding work. It is a worthy successor to Harte and Honoré’s classic Causation in the Law, and I expect that it will guide discussion for many years to come.

According to Hume (2007: 145), our concepts of causation, resemblance, and contiguity are the foundation of all of our reasoning concerning matters of fact, and “to us the cement of the universe”. As Carroll (1994: 118) puts the point: “With regard to our total conceptual apparatus, causation is at the center of the center”. Causation is certainly central to the law. Many liability doctrines in both criminal law and torts explicitly require that the defendant has caused harm to the plaintiff (c.f. Moore 2009: 3). Thus—given that the law uses “cause” in the ordinary sense, and not its own stipulatively defined sense—our concepts of causation and of legal liability can illuminate each other.