TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Wednesday, August 31, 2011

Wright's Causation Trilogy

Richard Wright (Chicago-Kent) has posted to SSRN three pieces on causation.  First, The Ness Account of Actual Causation:  A Response to Criticisms.  The abstract provides:

The NESS (necessary element of a sufficient set) account of natural (scientific, ‘actual’, ‘factual’) causation is usually acknowledged to be a more satisfactory and comprehensive account than the traditional sine qua non (‘but for’) account. However, objections have been raised to the claim that the NESS account fully captures the concept of natural causation and properly handles all types of situations. Various types of counter-examples have been proposed. More fundamentally, it is argued that the NESS account is viciously circular, since causal terminology often is used in its elaboration and it relies upon the concept of causal laws.

Many of the objections raised against the NESS account assume that it is essentially the same as Herbert Hart’s and Tony Honoré’s ‘causally relevant factor’ account and John Mackie’s INUS account. In section II of this chapter I distinguish these three accounts, which differ in important ways that make the latter two accounts vulnerable to objections to which the NESS account is immune, and I offer an account of causal laws that I believe rebuts the claim that the NESS account is viciously circular. In section III I argue that the NESS account handles properly the various types of situations that have been raised as alleged counter-examples to its comprehensive validity.

Second, Proving Causation:  Probability Versus Belief.  The abstract provides:

One of the frequently assumed major differences between civil law and common law systems is the standard of persuasion applied by each in civil (non-criminal) cases. In most civil law jurisdictions, it is commonly assumed that the standard of persuasion is the same for criminal and civil proceedings. The plaintiff in a civil case, as well as the prosecutor in a criminal case, must provide sufficient proof to convince the trier of fact of the truth of the facts at issue on the particular occasion. Although it is recognised that absolute certainty is impossible to achieve, the required degree of belief is often expressed in terms of a virtual certainty, or at least a very high probability. However, a mere statistical probability, no matter how high, will not suffice in the absence of the required conviction or belief in the truth of the facts at issue.

In common law jurisdictions, there is an explicit distinction between the standard of persuasion in criminal and civil proceedings. In criminal proceedings, the standard is very high: the prosecutor must prove the defendant’s guilt ‘beyond a reasonable doubt’. In civil proceedings, however, the plaintiff generally only needs to prove his case by the much lower standard of a ‘preponderance of the evidence’ (the usual formulation in the United States) or a ‘balance of probability’ (the usual formulation in the British Commonwealth and Scandinavia). Both standards are often interpreted by academics, and sometimes by judges, as merely requiring a 50 per cent probability. For both standards, as so interpreted, it would be better to employ the term ‘standard of proof’ rather than ‘standard of persuasion’, since the latter implies an element of conviction or belief that is lacking when all that is involved is a class-based statistical probability.

I have argued that the supposed major differences between the standards of persuasion in common law and civil law jurisdictions are greatly overstated. I retrace that argument in section II of this paper. I conclude that, in general, the common law as well as the civil law continues to view the applicable standards of persuasion in civil as well as criminal actions as requiring the formation of a belief in the truth of the facts at issue in the particular case, rather than a mere class-based statistical probability, and that concrete ‘particularistic evidence’ specific to the particular case is necessary to support such a belief. Although the available evidence is slim, I also conclude that in the civil law as well as the common law the strength of the required belief is lower in civil actions than in criminal actions.

In section IV of this paper, I consider various types of problematic causal situations that courts around the world have struggled to deal with in recent decades. Clear recognition of the issues in these cases and their proper resolution has often been hindered by an unanalysed assumption that the standard of persuasion in civil actions is a mere statistical probability standard, which however is not consistently applied, since doing so would generate significant problems and paradoxes. The considerable confusion that now exists could and should be greatly reduced simply by replacing the highly misleading phrases ‘more likely than not’ and ‘balance of probability’, and even the less misleading phrase ‘preponderance of the evidence’, with ‘a minimal belief’.

Third, The Nightmare and the Noble Dream:  Hart and Honore on Causation and Responsibility.  The abstract provides:

In Causation in the Law (1959), Hebert Hart and Tony Honoré attempted to set forth a set of allegedly causal principles, supposedly deeply embedded in ordinary thought, for identifying causes and attributing legal responsibility. This attempt is quite puzzling given the remarkable contradiction between its premises and the strict positivist theory of law that Hart was simultaneously engaged in elaborating and defending, which insists on the lack of any necessary connection between law and morality.

What accounts for this remarkable contradiction? I believe that it was generated by Hart’s attempt, in both Causation in the Law and his writings on legal positivism, to defend law and legal reasoning against the rule skepticism and legal nihilism that he (erroneously) attributed to the American legal realists. Hart initially rejected the argument, which he described as a noble dream (but later partially accepted), that the nightmare of legal nihilism could be avoided or reduced by resort to the purposes or principles that underlie legal rules and judicial decisions. He instead attempted to apply his own version of the noble dream in Causation in the Law. As a recent and devout convert to J.L. Austin’s “ordinary language analysis” approach to philosophy, he hoped to rebut the claims of the legal nihilists by identifying and articulating, through analysis of ordinary language as employed in and outside the law, “common sense” principles of causation embedded in ordinary thought that encompass not only the issue of natural causation but also attributions of legal responsibility.

The abject failure of this attempt was clearly perceived by philosophers and no doubt lead to the rapid decline of ordinary language philosophy. Unfortunately, it was not perceived by many in the legal community, but rather continues to engender confusion regarding the concept of causation and its relation to moral and legal responsibility.


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