Choosing What We Mean by "Causation" in the Law (Symposium: A Tribute to Professor David Fischer‪)‬

In a radical new account of "causation" in the Law, I argue that "causation" is a term we use to express diverse information about the world. Clarity is promoted if we use the term "causation" to refer to the information yielded by only one type of inquiry. Lawyers have used the term to refer to more than one type of enquiry, and philosophers often do not specify an inquiry. The most useful inquiry for legal purposes is one that compares the actual world of a particular phenomenon with a hypothetical world and thereby determines, in the context of that comparison, the role that a specified factor played, if any, in the existence of the actual phenomenon. It is convenient to separate three forms of such a role of "involvement": necessity, duplicate necessity and contribution, though contribution subsumes the others. We use our knowledge of the physical laws of nature, evidence of behaviour and so on to distinguish involved factors from factors that are merely "associated" with that phenomenon by a relation of constant conjunction: a determination that can be done objectively. I argue that Law should unequivocally choose involvement as the interrogation underlying causal terminology because (a) it promotes clarity and avoids ambiguity; (b) it promotes the clear identification of normative issues and provides a more transparent distribution of issues between "causation" and other analytical elements within legal analysis; and (c) it best serves the Law's very wide range of purposes. Part I of this article sets out the above argument. Part II sketches the approach of others to the issue of "causation in the Law."