Causation in the Law

Causation in the Law

Causation in the Law

Causation in the Law

Synopsis

This new edition of the seminal 1959 work retains the original analysis of commonsense causal concepts, and includes hundreds of new decisions and a substantial preface in which criticisms are met and a rationale propounded for common-sense causal notions as an element in legal responsibility.

Excerpt

This book has two related main objectives. The first is to identify the sources of the uncertainties and confusions which continue to surround the legal use of causal language in spite of a vast juristic literature dedicated to its clarification. If we believe it is possible to make further progress here, it is because past efforts seem to us not to have gone far enough, and to have left unearthed one major source of trouble. The images and metaphors, the fluid and indeterminate language, upon which both courts and textbook writers (even when most anxious to jettison traditional ideas) still fall back when deciding issues in causal terminology, or explaining such decisions to others, have their roots in certain features of a variety of concepts which permeate the daily non-legal discourse of ordinary men. These features need to be brought to light and described in literal terms; for the assertion often made by the courts, especially in England, that it is the plain man's notions of causation (and not the philosopher's or the scientist's) with which the law is concerned, seems to us to be true. At least it is true that the plain man's causal notions function as a species of basic model in the light of which the courts see the issues before them, and to which they seek analogies, although the issues are often very different in kind and complexity from those that confront the plain man. These notions have very deep roots in all our thinking and in common ideas of when it is just or fair to punish or exact compensation. Hence even lawyers who most wish the law to cut loose from traditional ways of talking about causation concede that at certain points popular conceptions of justice demand attention to them.

It may, of course, well be that when we thoroughly understand the common-sense notions of causation we should no longer wish our thought on any matters, let alone legal judgments of responsibility, to be dominated by them: we may think that they are . . .

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