A Tad More on Causation in the Law

[Lawrence Crocker]

If you have not been exposed to the distinction between “cause in fact” and “proximate cause,” which exposure is largely limited to 1L criminal law courses, you will not have much interest in what follows. Conceivably if you are read in the scientific cause literature or, a very different matter, like bizarre cases, you might want to read a little farther.

I argue that the distinction is at bottom unsound. No rigorous definition can be given of “cause in fact” that will both separate sheep from goats and not be subject to fatal counterexamples. This is because the sort of scientific cause that the accident reconstructionist or the medical examiner should give will be structured with the purposes and values of the enterprise of which she is a part. Causation in the sense of what the laws of nature do in taking us from one world state to another may be purpose free and value free, but when we come to giving scientific explanation of a death, we go beyond such austere causation. We then inevitably start dealing with counterfactuals, and, if you will, possible worlds. The choice and evaluation of the counterfactuals, e.g. what possible worlds count as being “close” to ours, is purpose-relative and value-relative. These purposes and values will sometimes be just the same ones that are supposed to be present at the proximate cause stage, but not the cause in fact stage.

Were anyone to want to see a fuller version of the argument, replete with a malefactor who tries to kill his victim with laughter, he or she should go to my 10/6 post on http://www.LawrenceCrocker.blogspot.com

[Bill Wiltrack]

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