Thursday, September 11, 2014
Richard W. Wright (Illinois Institute of Technology - Chicago-Kent College of Law) has posted Moore on Causation and Responsibility: Metaphysics or Intuition? (LEGAL, MORAL, AND METAPHYSICAL TRUTHS: THE PHILOSOPHY OF MICHAEL MOORE (Kimberly Ferzan & Stephen Morse, eds., Oxford University Press, 2015 Forthcoming)) on SSRN. Here is the abstract:
This paper was prepared for a festschrift in honor of Michael Moore to be published by Oxford University Press. Moore's magnum opus, Causation and Responsibility, amply demonstrates his encyclopedic knowledge of the relevant sources in law and philosophy and his analytical skill. Much can be learned from careful, critical reading.
However, I argue, Moore relies too much on intuition -- more specifically, his own -- in developing his account of causation and its pervasive and (he claims) dominant role in attributions of legal responsibility. Focusing on the NESS account that I have elaborated, he rejects "generalist" accounts of causation, which analyze singular instances of causation as instantiations of causal (natural) laws, instead opting for a "primitivist singularist" account, according to which we simply recognize causation when we see it in each particular instance without any even implicit reference to causal laws or any other "reductionist" test. He erroneously treats the "substantial factor" criterion in the first and second Restatements of Torts (which is properly strongly criticized and rejected in the third Restatement) as being such a primitivist singularist account. In addition, he seeks to replace all of the traditional normative limitations on legal responsibility with a supposed causal analysis, based on the "scalarity" of causation.
Yet, Moore believes, intuitions come into conflict with metaphysics when considering omissions or other absences as causes, which is routinely assumed to be true in law and life but which Moore insists is fundamentally erroneous from a metaphysical standpoint. His insistence on this point, while admirable from an intellectual integrity standpoint, completely undermines the fundamental premise of his book -- that causation is the pervasive and dominant determinant of legal responsibility -- since omissions/absences are part of every causal chain involving human action and many not involving human action.
In this paper, I defend a specific "generalist" account of causation (the NESS account) and criticize Moore's primitivist singularist account. Along the way, I address a number of issues regarding causation and legal responsibility, including the metaphysical basis for treating omissions as causes.