Since Hume`s analysis takes „the glue“ out of the causal context – a cause does not cause its effect, it is only regularly followed by its effect – it is generally classified as skeptical. And in a sense, that`s when you treat the „glue“ that makes things happen as essential to any relationship that is correctly called „causal.“ But Hume`s views are not radical enough to be considered skeptical in the sense of legal theorists. Because Hume gives what Saul Kripke calls a „skeptical solution“ to the problem of causality (1982:66-68): Hume does not deny that causality exists, but he reduces it to something less ontologically than „glue.“ First, let`s look at the well-known predictability test. Unlike rules-based policy tests, there are no multitude of rules for specific situations (such as lengthy death trials, responders, railway fires, etc.). Rather, there is a rule that applies universally to all criminal and tortious cases: Was it foreseeable for a defendant at the time she acted that her act would cause the harm she actually caused? (Green 1967). This supposedly universal criterion of legal causality is generally justified by one of two guidelines: either the injustice of punishing (or receiving compensation) from a person for harm that he could not have foreseen, or the inability to obtain deterrence by punishing such actors (since the value of threat of misdemeanour or criminal sanctions for unforeseeable breaches of the rules of liability) is generally considered to be non-existent). This issue clearly does not infect the following two tests based on policies on immediate cause, predictability, and harm within risk. Because these tests attempt to describe a factual fact that plausibly determines both a defendant`s moral culpability and guilt with certain damages. These criteria therefore serve the type of policy that the concept of causality is to serve in theories of criminal law and justice-oriented offences. Their novelty lies in their displacement of how and where legal causality determines fault. According to these theories, the „legal cause“ is not a refinement of an accepted desert determinant, a true causality; it is more a refinement of another recognized state of mind defining the desert and guilty. In other cases, causation is the only requirement of legal liability (except for the fact that the result is prohibited). For example, in product liability law, courts apply the principle of strict liability: the fact that the defendant`s proceeds caused damage to the plaintiff is the only thing that matters.
Nor does the defendant have to have acted negligently. The application of the intrinsicity thesis becomes a little trickier when we move on to preemption, as we have already seen that stories of sufficiency like Wright`s NESS test seem correct to count Jay as the actual cause of Myrtle`s injury, while Daisy is also wrongly counted as such.68×68. See the text attached to footnotes 53 to 58 above. Therefore, if we build an S structure where E is Myrtle`s injury and t is the time before Daisy slows down, it seems that we need to add both Jay`s driving and Daisy`s driving to S (because, as discussed above, each is needed for a number of sufficient conditions for Myrtle`s injury). Hall proposes a new strategy here: instead of defining causes as necessary members of a sufficient whole, the sufficiency theorist can define causes as necessary members of a clearly sufficient whole.69×69. Hall, loc. cit. 18, p.
276; see also Paul & Hall, loc. cit. 43, pp. 129-30. In addition, the sufficiency theorist can clarify that this definition gives only one sufficient condition for causality, and not a necessary condition, so that it correctly recognizes the causes in the case of garden varieties, while „remaining silent“70×70. Hall, loc. cit. 18, p. 277. in case of preemption and overdetermination (since these cases contain several sentences sufficient for a given result).71×71.
Paul & Hall, Note 43 above, at 129-30. „Silence“ here simply means that the sufficient conditions of the revised definition are not met (because these conditions include the necessary membership of a clearly sufficient quantity and the cases of overdetermination and pre-emption include several sufficient quantities). Once causal structures are correctly identified in the case of garden varieties, the sufficiency theorist can invoke intrinsicity to give causal status to relationships within more complex causal structures, provided that these relationships correspond to the intrinsic structure of the garden variety cases mentioned above.72×72. Hall, loc. cit. 18, p. 277. Given the data and methodological limitations discussed above, such volatility is not surprising. It is important not to attach causal importance to either of these estimates. Instead, the primary idea of this illustration lies precisely in volatility. In particular, the fact that text matching makes a significant difference suggests that not taking into account confusing texts could lead us to make incorrect estimates in this particular context. While these preliminary estimates are not sufficient to identify causality, they do provide an indication of the statistical countermeasures we will likely need if a better data set is to be available on which future work can build.
These findings reinforce two central themes in this paper: (1) the importance of a causal framework, particularly a carefully specified causal model, when working with observational legal data;165 and (2) the importance of taking into account textual confusion in causal legal analysis.166-12. Intent alleged aphrodisiac powers to extend legally relevant causal influence to what would otherwise be legally suppressed events (the common law maxim „No“ Harm is too far away if intentional; Terry 1914:17). 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 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. Given the inherent shortcomings in the counterfactual conception of causality, it is not surprising that philosophers and jurists have proposed a number of alternative theories.
This section examines the most important burden in the legal literature: sufficiency accounts. While sufficient accounts pose some problems with counterfactual accounts, this part argues that there may be solutions for the former that are not available to the latter. In particular, through the reference to the „trinity thesis“ of the philosopher Ned Hall, 48×48. Hall, op. cit. Cit. 18, p. 256 (emphasis omitted). In addition to his revised definition of sufficiency, the sufficiency theorist may be able to examine cases of overdetermination and preemption without adjusting the causal status of unrelated events. This part concludes by highlighting the persistent problems that the sufficiency theorist needs to address and briefly explaining why the concept of „intrinsicity“ cannot be invoked by theories of but for causality. The essential statement behind the harm in risk test is that the „legal cause“ is the label that lawyers should put on a guilt problem, the problem called an adjustment problem. Proponents of this criterion insist that the legal cause, well understood, is in fact a mens-rea doctrine, not at all a doctrine of causality (American Law Institute 1985).
These findings – that Jay`s negligent conduct is a cause of both his own previous failure to make coffee and Nick`s coffee making later in the day – seem clearly wrong, as do the judgments rendered in the waiver and pre-emption cases discussed above. The first objection – that counterfactual theories allow for temporally inverse causality40×40. See General Jan Faye, Backward Causation, in Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2017), plato.stanford.edu/archives/spr2017/entries/causation-backwards/ [perma.cc/G9X9-GDKU]. — is undoubtedly important, but it turns out that it also applies to other causal accounts (including the sufficiency accounts discussed below).41×41. See pages 2174-75 below. While an independent justification of causal direction is therefore required by theories of causality in general,42×42.