Contrastive Causation in the Law, on the conditions for cause in fact and adequate cause

How should we think about causation in the law? Traditionally, the law distinguishes two kinds of criteria for legal causation. First, there are criteria to establish cause in fact. These criteria are applied to determine whether there is a factual causal connection between the agent’s behavior and another event. Second, there are criteria to establish the adequate cause. These criteria are applied to determine whether a cause in fact is a salient cause for the law. I argue that the criteria for cause in fact are insufficiently specified in traditional legal theory. The criteria for cause in fact are implicitly contrastive, but lack an account of the admissibility of the contrasts. I develop distinct accounts of the admissibility of the contrasts for tort law and criminal law, and argue that rather than ask whether the effect would still have occurred in the absence of the defendant’s behavior, the law requires us to ask whether lawful behavior by either the defendant alone or by...Show moreHow should we think about causation in the law? Traditionally, the law distinguishes two kinds of criteria for legal causation. First, there are criteria to establish cause in fact. These criteria are applied to determine whether there is a factual causal connection between the agent’s behavior and another event. Second, there are criteria to establish the adequate cause. These criteria are applied to determine whether a cause in fact is a salient cause for the law. I argue that the criteria for cause in fact are insufficiently specified in traditional legal theory. The criteria for cause in fact are implicitly contrastive, but lack an account of the admissibility of the contrasts. I develop distinct accounts of the admissibility of the contrasts for tort law and criminal law, and argue that rather than ask whether the effect would still have occurred in the absence of the defendant’s behavior, the law requires us to ask whether lawful behavior by either the defendant alone or by all agents involved, as specified by the plaintiff or prosecutor, would have prevented the effect from occurring. It follows that legal relevance considerations determine the contrasts underlying the criteria for cause in fact and that the cause in fact/adequate cause distinction in the law cannot hold. Furthermore, I argue that the traditional criteria for adequate cause should limit legal responsibility for some outcomes of the contrastive causal analysis, but do not play a role in this analysis. Therefore, the traditional criteria for adequate cause should not be considered part of the concept of legal causation.Show less

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Contrastive Causation in the Law, on the conditions for cause in fact and adequate cause