In this colossal analysis of tort law, it is simply not necessary for liability to activate causation. On the contrary, either tort liability is irrelevant to an efficient allocation of resources (in a world with low transaction costs), or tort liability should be placed on the least expensive that avoids costs (in a world with high transaction costs) to get that person to take precautions at low cost. In both cases, legal liability should not pursue causal liability, because even if transaction costs are high, the perpetrator of damage does not have to be the one to avoid the cheapest costs for that type of damage. There are several competing theories of immediate cause. Some States follow the «but for» rule in determining whether an event caused the claimant`s injury. This rule considers whether the infringement would not have occurred but for the negligent act or omission of the defendant. If it is established that the harm would not have occurred without the act of a defendant, it establishes the element of causation. Jurists and legal theorists have an unfortunate inclination to proclaim that law is, should, and should be autonomous from other disciplines (such as philosophy) in its use of concepts such as causality (Stapleton 2008; 2015). As Sir Frederick Pollack said more than a century ago, «The jurist cannot afford to venture with philosophers into the logical and metaphysical controversies that beset the idea of cause» (1901:36). But that such conceptual autonomy is desirable, necessary, or even possible presupposes that the law has goals for its causal requirements that are incompatible with the metaphysics of causality that philosophy has studied so much. First, human law, unlike the «natural law» of morality, is inherently narrow-minded in the sense that human law varies from place to place. (He does this because the existence of human right depends in part on the facts of institutional history, and these facts vary from place to place.) So the question «Whose law?» is at the beginning of an investigation like this.
The following describes causality as it is used in what may commonly be called the Anglo-American legal tradition – the legal tradition of the United Kingdom, the domains of its Commonwealth and the United States. Despite this admission of a somewhat narrow vision, there are nevertheless universalist implications of this analysis. Indeed, there are strong similarities in the legal use of causality in all existing legal systems, even if one is not limited to that of the English-speaking world. The actual cause is the event that is directly responsible for an injury. If one person pushes another, causing the other person to be pushed out of an open window and break their leg as a result of the fall, the push is the true cause of the injury. The immediate cause of the injury in this case would be the fall, as this is the cause that occurred just before the injury, with no intermediate causes. In some cases, the actual cause and immediate cause of an injury may be the same. The direct cause of a violation is the act or omission of an act without which the damage would not have occurred. It is a term used in tort law and raises the question of whether a defendant`s conduct is so significant that he or she will be liable for any resulting damages.
For example, a person throws a burning match into a wastepaper basket, which starts a fire that burns a building. The wind carries the flames to the nearby building. The act of throwing the match would be the immediate cause of the fire and the resulting damage; However, the person cannot be held fully responsible for all the consequences that result. Let us therefore examine this fourth policy-based immediate cause test, the misleading test called «harm in risk». Like the predictability test, this criterion is intended to be a legal cause test universally applicable to all offences and criminal cases. This criterion is also justified for political reasons and does not claim to have anything to do with factual or scientific causality. However, in terms of teaching, the test differs from a simple predictability test. Between these two types of overdetermination are the so-called asymmetric overdetermination cases (Moore 2009a: 417-18).
Let us suppose that a defendant does not fatally stab the victim at the same time as another defendant fatally stabs the same victim; The victim dies from blood loss, most of the blood gushes from the fatal wound. Did the accused, who was not fatally injured, cause the death of the victim? Not according to the counterfactual analysis: given the frugality of mortal will, non-fatal injury was not necessary and therefore not a cause of death. This conclusion contradicts general intuition as well as considerable (but not universal) legal authority (People v. Lewis). We are now moving from policy-based tests of immediate causality to testing based on the idea that immediate causality, like cause, actually has to do with actual causal relationships in the world. The oldest of these tests is that suggested by Sir Francis Bacon in his coin «causa proxima» (1630: first maxim). The simple idea behind such a distance test is that causality is a scalar relationship—some sort of thing more or less, not an all-or-nothing thing—and that it fades over time. The irrelevance of causality to provide effective incentives has led economists to struggle to understand the causal requirement of criminal law and tort rules.
Since no metaphysical reading of «cause» is proportional to the goal of efficiency, a certain political calculation is given as the legal meaning of «cause.» Such a political calculation usually produces a probabilistic interpretation of the «cause», so that any activity that increases the conditional probability of injury occurring is considered to have «caused» that damage (Calabresi 1975). For any theory that attempts to use the law to encourage effective behavior in a world of high transaction costs, this probabilistic interpretation seems to be exactly what is required. To criticize such a probabilistic interpretation of the legal cause on the grounds that probability is a metaphysical misrepresentation of what causality is (Wright 1985a, 1987) would therefore be incidental – as long as one adheres to economists` utilitarian views on the proper functioning of the concept of causality in law.