One criticism of the remoteness test, often expressed in the legal literature, is that distance in space and isolation in time are not relevant to the degree of causal contribution. Examples such as People v. Botkin, where poisoned candy traveled a great distance (from California to the victim in New Jersey), or an unexploded bomb that remained buried for many years before exploding and injuring a victim, are removed in support of criticism. Justice Cardozo again agreed that such criticism certainly ran counter to the strong community sense that spatiotemporal distance is important for the degree of causal contribution (Bird v. St. Paul F. and Minneapolis Ins. Co.), but one might hope that better could be done than that. The spatio-temporal distance can be a useful approximation of the number of events or states by which a cause exerts its influence on its effects, and the number of events could be relevant to the degree of causal contribution. This is the metaphysical view that causality “tires” through its connections and that in this way the relationship is not completely transitive. Most states use 1 in 2 tests to determine the real case: causality in English law concerns the legal tests of remoteness, causality and predictability of the tort of negligence. It is also relevant to English criminal law and English contract law. The one we`ve already seen in the fourth variant of the counterfactual test for the cause actually.
If one does not ask whether the defendant`s action was necessary for the occurrence of the damage – if one asks rather and more differentiatedly whether the aspect of her act that rendered her negligent or otherwise guilty caused the damage – then we have a causal test that is almost as discriminatory as the simple counterfactual test combined with a version of the Prox case (Keeton 1963; Wright, 1985b). This is not surprising, since both criteria declare inadmissible all aspects of the defendant`s act of which he is not guilty. From the point of view of aspect and causality, those aspects of the defendant`s actions that are not relevant to guilt are not (relevant) the cause of the damage; For the purposes of assessing harm in risk, these culpable aspects of the defendant`s actions do not correspond to the defendant`s guilty state of mind. Whether it is called causality (aspect-cause view) or guilt (the view of harm at risk), the discriminatory power is about the same. Therefore, in the final version of the published (third) 2010 Reformation, Torts: Liability for Physical and Emotional Harm, the American Law Institute argued that the immediate cause should be replaced by the scope of liability. Chapter 6 of the reformulation is entitled “Scope of liability (direct cause)”. It begins with a special note explaining the Institute`s decision to reformulate the concept of “scope of liability” since it is not true causation, and also to include “immediate cause” in the chapter title in parentheses to help judges and lawyers understand the connection between the old and new terminology. The institute added that it “fervently hopes” that the parenthesis will be useless in a future fourth reformulation of offenses. [17] The formal Latin term for causality “but for” (cause in fact) is sine qua non causality. [2] Starting with general policy-based tests of immediate causes: the first of these are what we can call “ad hoc policy tests”.
The idea is that the courts will in each case weigh a set of policies that they will decide whether it has been determined that a defendant has actually caused harm prohibited by law. They can reconcile certain “social interests,” such as the need for deterrence, with certain “individual interests,” such as the injustice of surprising an accused with responsibility (Edgerton 1924). The courts then decide where such a balance leads. Whatever decision is made on a case-by-case basis on such a balancing of policy, it is then made for “immediate” or “legal” reasons. Such labels are only the conclusions of a political balance; labels have nothing to do with causality in the ordinary or scientific sense (Green 1929). Science and law have different functions, but share striking similarities. Both claim to provide rational, reasoned, independent and impartial processes that deal with the objective evaluation of evidence. There are also glaring differences.
Scientific claims compared to legal causality results have the following characteristics: In most cases, the goal-for-test is sufficient. But the test is not perfect. How do we know if a defendant`s violation caused the violation? Two types of tests you`ll see frequently in the U.S. are the “but for” and “substantial factor” tests. The “but for” test is often used in tort and criminal law. It is a question of determining the actual causality. Actual causality is defined as a factor without which the result in question could not occur. These three questions – what is the concept of causality of the law and how and why it differs from the general concept of causality in science and everyday life – are deceptively simple in their appearance. However, the description of a concept such as causality, as used in a discourse such as the law, depends on a number of variables, the study of which will clarify the issues pursued later in this post at an early stage. There are four preliminary and clarifying variables.
The fourth group of problems for the counterfactual test concerns the sub-inclusion of the test, which in known cases of overdetermination is usually shown in legal theory. These are cases where each of the two events, c1 and c2, is independently sufficient for a third event e. Logically, the sufficiency of c1 and c2 means that neither c1 nor c2 are individually necessary for e, and therefore in the counterfactual analysis of causality, none of them can be the cause of e. The law uniformly rejects this conclusion (although some philosophers such as David Lewis have asserted uncertainty in their own intuitions about the existence of causality in such cases), so such cases pose a real problem for the counterfactual analysis of causality in law. The skepticism of American legal realism had two intellectual descendants in legal theory. One of them consists of self-proclaimed “critical” theorists – the Critical Legal Studies (or “Crits”) movement, whose heyday was in America in the 1970s and 1980s. Much of the skepticism of this movement is simply a warmed-up postmodernism that is a temporary fad even in many disciplines other than law (Moore 1989). Intellectually more interesting were the criticisms that were not based on postmodern platitudes, but specific to causality.
The general and positive recipe that is supposed to result from the skepticism of legal realists and critics is not so clear. It is believed that once skepticism (that causality is an objective fact) has eliminated the blinders, we can see that only interests and policies lead us to conclusions about moral responsibility and legal responsibility. So, presumably, the positive recipe is that we do it openly, weighing all the relevant political considerations when deciding who should be held accountable, and then throwing those conclusions of responsibility into what was the cause of what. In general, there are four types of problems related to the counterfactual causality test that are addressed in the legal literature. The first of these problems concerns evidence and evidence. As a prima facie evidence, causation must indeed be proved by the party with the burden of proof. In criminal matters, it is the prosecutor`s office, which must prove beyond any doubt what would have happened without the act of the accused. Counterfactuals are naturally difficult to prove with certainty, as they require the investigator to speculate on what would have happened if the defendant had not done what she actually did. Suppose an accused culpablely destroys a lifebuoy on a tug at sea.
If a crew member falls overboard and drowns, was a necessary condition of his death the act of the accused to destroy the rescuer? (New York Central RR. v. Grimstad). If the rescuer had been there, would anyone have thought of using it? Do you throw it away in time? Thrown far enough? Do you have it close enough to the victim for him to reach him? Often, we lack accurate information that could verify whether the defendant`s culpable act made a difference in this way. However, an alternative view of legal goals brings the right back to the metaphysics of causality. This view asserts that the criminal law serves the value of reprisal justice, just as tort law serves the value of remedial justice. Reprisals require that those who cause culpable harm be subjected to censorship and deprivation that are punishable; Remedial justice requires that those who culpably harm another correct that injustice by compensating that other. In both cases, service to these types of justice requires that one do not identify the “cause” as used in the rules of legal liability as anything other than that with which it is identified in these theories of justice. Because such moral theories of justice require that the true metaphysics of causality determine when someone has caused harm or harm to others, the law of tort and crime must also apply. With such an alternative view of the justification of causal requirements in matters of tort and criminal liability, the lawyer must therefore “deal with the philosopher” of the metaphysics of causality.