Jusletter IT

I. Perhaps it would be justifiable to begin by saying what I mean by «cause-in-fact» /«cause-in-law» dichotomy, insofar as it is the core of this paper’s title. However, the diversity of possible references to the subject under discussion and other ones that I may have not considered, advises me not to do it.

The dichotomy that I intend to discuss arises as a distinction in the works, studies and decisions on very different terms. In Civil Law countries one can find, among others, references to: factual causality /legal causality ,normative orimputation ; material causality /juridical causality . On the other hand, in Common Law countries we find, inter alia , the following references:cause-in-fact /scope of liability ;factual causation /truncation of responsibility . I have decided to choose «cause-in-fact »/«cause-in-law» as elements of the dichotomy, despite being aware that eventually I could have chosen others. Anyway, I think that it is perhaps more fruitful trying to explain the problem I bring to discussion and then expect that you can frame this problem in your own parameters of understanding and reasoning.

I would just like to stress that the choice of the word dichotomy instead of the terms distinction, differentiation or separation was not an innocent one. The latter are not to be mistaken with the term dichotomy and I consider that the use of the term dichotomy captures more adequately what I want to emphasize: the division of something in two, which appears to be contrary and cover its entire length, rather than consider different realities, noticing or capturing a difference or make a conceptual separation.

II. At least since the fifth century BC, there have been discussions related to events’ explanation, causation, liability and evidence. Moreover, in that historical period, some of these issues – for example causation, responsibility and evidence – were treated as one.

Currently, these topics are treated separately or, at best, in conjunction. The proliferation of theories regarding explanation, causation, responsibility and evidence, coupled with the fact that these issues are being discussed in disciplines as diverse as philosophy, physics, psychology, law, ethics and morals, makes it even more unlikely for the reader that we are talking about the same thing. And if we stick to just one branch of knowledge, such as the law, this status does not improve.

III. In law we find a variety of theories of causality¹ , particularly concerning civil liability and criminal liability.

This is not the time to discuss the «earning capacity»² of each theory normally presented about causality or to discuss the possible lack of communication between Criminal Law and Tort Law. Discussion and debate of these problems will be left for another time.

IV. The problem that I intend to discuss lies in the fact that nowadays some people talk ofcausality in fact as opposed to a so-calledlegal causality , and, in some cases, valuing one term of the distinction over the other.

Moreover, in some cases the importance of thisfactual causality /legal causality dichotomy has led to the need to separate the world of«cause-in-fact» , what was called 'causality ’, from the world of«cause-in-law» , what was later called ‘imputation ’. All this with possible damage to the understanding of what is at stake and creating the impression (in my view, misleading) thatcausality problems can be easily solved and within two moments: the factual moment and the normative moment.

I. The dichotomy under discussion, even by the way it is presented in certain judicial decisions, seems to be related with the old but still modern distinction between matter-of-fact (quaestio facti )/matter-of-law (quaestio iuris ), which some thought to have been already submitted to a stronger bail due to the impossibility of sustaining the problematical meaning and ground of the distinction in traditional normativism, legalism and scientism postulates³ .

This dichotomy touches, in a peculiar way, almost all of the problematic points and distinct senses that thematter-of-fact /matter-of-law distinction traditionally raises: the epistemological problem and sense of the relation-distinction between law and social, historical and cultural reality; the dogmatic problem and sense of the institutionally functional determination and of jurisdictional competence of certain courts; the methodological problem and sense of the methodological analysis and rationalization of the concrete judicative decision⁴ .

II. However, in my view, the«cause-in-fact» /«cause-in-law» dichotomy seems to go beyond this issue, at least in the way it arises and is traditionally discussed.

Especially because, although recognizable in Civil Law countries as it is the case of the Portuguese legal system, the«cause-in-fact» /«cause-in-law» dichotomy is arising and mainly is producing consequences in the way people legally think, reason and decide aboutcausality in countries that are traditionally less favorable to the distinction betweenmatter-of-fact (quaestio facti )/matter-of-law (quaestio iuris ), as it seems to be the case with Common Law countries⁵ .

But I shall return to this point latter. For now, I am only interested in briefly present the terms in which the distinction«cause-in-fact» /«cause-in-law» arise, whether within Civil Law countries, whether within Common Law countries.

I. In Portugal, in the area of Civil Law, some authors supported - albeit unconsciously – in HANS KELSEN’s thought⁶ , who operated the distinction betweencausality andimputation⁷ , applaud and, in some cases, call it a true«dogmatic ‘revolution’»⁸ in the field of legal liability, in general, and in the issue ofcausality , in particular, the passage of the so-calledfactual causal theories (as pointed to be the case of theconditio sine qua non theory and, in a certain allegedly non normative formulation-application, the adequacy theory⁹ ) to a normative understanding ofcausality or to normative conceptions ofimputation (as said to be the case of the adequacy theory in its latest formulation-application¹⁰ , the scope of liability orNormzweck theory and the risk theory).

And, although it is affirmed that thesine qua non primary rule is irreplaceable, since it is understood that the model of the physical-naturalistic sciences is on the basis ofcausality¹¹ , and that«there is an outside relevant reality, which should be recognized»¹² , yet some conclude that: i)causality , while applied by the law science is a legal concept¹³ ; ii)causality is the result of a legal evaluation¹⁴ ; iii) thesine qua non rule is based on the necessary condition concept and assumes the existence of deterministic causal laws¹⁵ , whereas in some cases it is not possible to establish a clear link between a certain event and the harmful effect and the harmful causal processes are neither singular or transparent¹⁶ .

On the Portuguese civil courts’ level there is a trend that extends from the treatment of causality as intuitively perceived to the appeal for the adequate cause, with or without consideration of the problems in normative terms, whilst some Portuguese scholars point out, in line with the German scholars and courts¹⁷ , the shortcomings of the Adäquanz formula¹⁸ and the necessity to develop causality as a requirement for liability in several stages¹⁹ : sine qua non ; adequate in terms of social normality or caused by the agent to reach its purpose; depending on the values protected by the breached rule. And, at the Supreme Court, one can emphasize the relatively recent passage of causality from a factual question to a legal question . For the courts²⁰ , this passage is justified by the consecration of the Adäquanz principle at the level of causal nexus finding: after being determined, in the naturalistic plan, a «direct and necessary relation of the cause to the effect» (matter-of-fact ), this principle would impose the need «to resort to value judgments intended to ask the [general and abstract] «legal cause» of a certain event» , and that would require an «analysis of the situation in the light of legal criteria» (matter-of-law ). For the legal scholars²¹ , it is spoken mainly due to causality ’s dependence of the «interpretation of the rules of imputation involved» , which would give «the extent of protection, when imputing an unlawful act, and the measure of risk, in the objective imputation»²² .

But this is not exclusive to Portugal. In Italy a similar distinction is advocated. Sometimes²³ , references are made tocausalità materiale /causalità di fatto /causalità naturale , which regards to thean debeatur , as opposed tocausalità giuridica , which refers to thequantum debeatur . GIOVANNI VALCAVI distinguishesmaterial causation fromjuridical causation , expressly stating the following about the distinction:«Material causation, unlike juridical causation, is the model that links the conduct of man to the natural event, when the latter follows the former and is necessarily presumed. (…) Juridical causation, unlike material causation, mentioned here, is, on the other hand, the model laid down by the legislator that concerns the succession of the phenomena, in the context of the case in point described and their ideal frequency. The causal antecedent is not represented here by the mere conduct, but «by the fact» which is jointly the conduct and the natural event, when this exists or the conduct without the event when it does not exist. Here the event is not the natural one which may not exist, as has been seen, but the juridical one, i.e. the « damage » which always exists. (…) The damage is certainly a creation of our mind, i.e. it is an abstraction, no different from the fact and it is more particularly the infringement of that interest that should have prevailed and which on the contrary has been sacrificed. The damage is certainly outside the fact or causal antecedent, because it represents its consequence, but it is inside the case in point described by the legislator, which includes the overall fact, the damage and the juridical cause»²⁴ . And some legal scholars state that thecausalità giuridica ratio falls within the more general function ofcausality , which is also preventing someone to be submitted to disproportionate legal consequences given the gravity of the risk they created²⁵ .

In Sweden, in an article devoted to the study of the«cause-in-fact» in Tort Law, MÅRTEN SCHULTZ states that:«The NESS test is not a lawyer’s magic wand and it surely does not solve the practical problems of causation. It is in the second step of the causal inquiry, in Sweden dealt with under the adequacy test, which the real legal inquiry starts. One may thus say that in a way the legal analysis starts where the NESS test ends. It is after the facts of the case are established that the judges and the lawyers are able to draw legal conclusions from those facts»²⁶ .

II. Even in Criminal law, traditionally more focused on the conduct than Tort law (mainly concerned with the damage), there are hints of thefactual causality /normative causality distinction when, evaluating the condition theory (Bedigungstheorie ) or the equivalence theory (Äquivalenztheorie ), which stresses that«cause is any condition without which the result would have not occurred» , after all recognize that«the simple requirement of a relationship of cause and effect (in the sense of the condition theory) is a very wide spectrum criterion to determine responsibility, lacking some constraints when the result produced is subsumed into the objective type»²⁷ .

And, in recent court decisions²⁸ rendered by the Portuguese Supreme Court in the field of criminal liability, one can read the following: firstly, that we must take into account the legally²⁹ imposed limits for the Supreme Court to know onlymatters-of-law ; in addition, that if the causal relationship is considered amatter-of-fact (the naturalistic relationship between the event and consequence) and not amatter-of-law (the causal adequacy, in abstract, between the event and the consequence), the Supreme Court must accept what is brought by the lower courts; and finally that the factual part of the causal relationship may appear, express or implied, from the proven facts or can be achieved by natural presumption, in both cases the reasoning made by the lower courts escapes from the Supreme Court censure.

Note that I am not interested in discussing whether or not the principle of limiting the knowledge of a Supreme Court tomatters orquestions of law is correct. What I am interested in is in understanding the meaning and extent of the«cause-in-fact» /«cause-in-law» distinction.

I. Advancing to the Common Law countries, with which I must recognize to be less familiar with, the«cause-in-fact» /«cause-in-law» distinction also seems to arise.

There are references tocause-in-fact ,factual causation orbut-for-cause as opposed toscope of liability ,legal causation ortruncation of responsibility . Furthermore, in some cases, it is the legislation that incorporates such distinctions. For example, in theEnglish Law of Torts it is customary to analyze the issue of causation in two stages: the first stage regards thecause-in-fact /factual causation /but-for-cause issue, while the second stage regards thescope of liability /legal causation /truncation of responsibility issue³⁰ . Similarly, in vol. 1 ofU.S. Tort Law Restatement Third, Torts: Liability for Physical and Emotional Harm (2009) there are two separate chapters, one (Chapter 5) forFactual Causation and the other (Chapter 6) concerningScope of Liability .

If the distinction is no stranger to Common Law countries, yet there is no agreement regarding the meaning and extent of such distinction.

II. Some authors³¹ , that are considered purists (for example LEON GREEN, RICHARD V. WRIGHT and JANE STAPLETON), demand the existence and clarity of the distinction betweencause-in-fact /factual causation /but-for-cause andscope of liability /legal causation /truncation of responsibility .

According to these authors, the causal inquiry has two distinct stages: a first stage that meets the need to identify the causally relevant events and that corresponds to the finding of hard causal facts, according to the scientific and philosophical consensus; a second stage that meets the need to ascertain the relevance of such events in light of the purposes of law and which corresponds to ask whether they serve as causes accounting the goals and objectives of law.

But if this is so, the reasons why the so called purists authors consider justified making this distinction are not always homogeneous. There are those who consider that the distinction is justified because the causal investigation relates only to facts and is, therefore, merely factual or empirical (RICHARD WRIGHT), while others maintain that distinction, because they consider that the question of historical involvement is a causal question and they argue that the distinction presents advantages, avoiding, in addition, a relatively common practice in the Common Law courts (mainly Australians) to decidecausality questions based on thecommon sense causation (JANE STAPLETON).

II.1. One of the authors who contributed to the need of distinguishing the factual inquiry from the legal inquiry regarding causation was the American realist LEON GREEN³² . GREEN was part of the American realist movement of the 1920s that claimed that the rules and legal concepts are excessive generalizations and worn abstractions. The degree of rational indeterminacy of these rules and concepts would require interpretation, which obscured the reasons for the judge's decision. American Realists argued that legal analysis should expose the real reasons for judicial decisions³³ . For GREEN the use of causal terminology was a technique that did not make this task easier: not only was it used to determine the causal inquiry, but also to communicate findings on normative issues. Judicial decisions, based on an alleged scientific rationality, would obscure their true grounds. Despite the difficulties that the thesis presented³⁴ , some of which indeed set the tone for the subsequent investigation of HERBERT HART and TONY HONORÉ, GREEN defended the separation of the causal investigation from the normative considerations, which would be made ​​only on the legal analysis of the case. Still, according to GREEN, the field ofproximate cause /scope could not be expressed using clear principles.

II.2. Also, RICHARD WRIGHT defended to be important a clear distinction betweenfact andlaw in the causal inquiry, that is, betweenfactual causation and other non causal aspects of responsibility, arguing that the causal inquiry relates only to facts and is merely factual or empirical³⁵ . WRIGHT sought to provide an explanation ofcausality that was not vulnerable to distortions and ideological influences, in which the concept ofcausality should be in accordance with its intuitive concept and not based onpolicies , reachable aims or valuations³⁶ . In order to reconcile the role offactual causation in typical and atypical cases, WRIGHT proposed the reformulation of the concept of causation. Instead of thebut-for test , WRIGHT proposed theNESS test , according to which the satisfaction offactual causation is accomplished when a conduct is aNecessary Element of a Sufficient Set of circumstances that led to the plaintiff's loss . Besides failing to explain cases of historical uncertainty, WRIGHT’s position is criticized for being confusing and for not capturing the real notion of causation, since it would excessively rest on general causal laws³⁷ . Moreover, the assignment of the meaning of causation to theNESS test oneself by WRIGHT involves, as shown by RICHARD KRESS and KEN FUMERTON³⁸ , a«vicious conceptual circularity» .

II.3. JANE STAPLETON, known professor at theUniversity of Texas’ Law School and world renowned researcher onProducts Liability andTort Law in general, also supported that distinction, though mainly by the advantages that she assigns to the separation betweenfactual causation andscope of liability .

In a recent article entitled «Factual Causation»³⁹ , STAPLETON, following a different line from WRIGHT, sustained again⁴⁰ the need to distinguish betweenfactual causation andscope of liability . In this article, STAPLETON begins by applauding the existence, invol. 1 of U.S. Tort Law Restatement Third, Torts: Liability for Physical and Emotional Harm (2009) , of two separate chapters: one (Chapter 5) on theFactual Cause and the other (Chapter 6) concerning theScope of Liability , a solution that would have been indeed justified by the need to confine the causal terminology to the objective idea of a historical connection, conveniently captured by the termfactual causation , and to separate thisquestion of fact (and the specific rules relating to his evidence) from the issue oftruncation of liability –scope of liability – based on a normative analysis of the facts⁴¹ . And considering that the Commonwealth courts, particularly the Australian courts, struggle to express that separation in a consistent and coherent way, often using the slogancommon sense causation , rather than distinguishing the historical connection from thetruncation of responsibility , STAPLETON believes that the outcome is a confused and incomprehensible development of the causal terminology and law discredit⁴² .

To this state of affairs would have much contributed, according to STAPLETON, the spread of HERBERT HART and TONY HONORÉ’s work «Causation in the Law», in which those authors would have asserted being causal questions both the matter of historical connection as the issue oftruncation of responsibility , thus bifurcating causation in law. For STAPLETON, those authors, after selecting information of causal usage, would have extracted what they called thecommon sense principles of causation , exposing the judges to the temptation to assert a conclusion about thetruncation of responsibility without providing any reasons for it. This temptation would have been, according to STAPLETON, exacerbated by the fact that HART and TONY HONORÉ characterized the observed patterns oftruncation of responsibility as causal connections, since«for many of us the notion of causation has a factual ring» :«In ordinary speech we tend to think of something either being a cause or not, and we often do not see our conclusions on the matter as requiring normative justification»⁴³ .

According to STAPLETON, the advantage of making reference to the issue oftruncation of responsibility in non causal terms would be to allow the judges to decide on that question with an appropriate normative justification and also allow them to easily recognize whether the statements relating to causation have to do with the historical connection or with the truncation and thereby better support their decisions. And for that reason STAPLETON considers to be rather unfortunate the choice ofIPP Report to keep the term causation to mean an amalgam offactual causation andscope of liability , particularly because it makes incoherent the various judicial statements that essentially consider causation amatter-of-fact⁴⁴ .

On the other hand, according to STAPLETON, the cause of action, for example for aTort of negligence action, is composed of two elements: thefactual cause and thetruncation of liability . Although it is possible to concentrate all theTort of negligence elements into a single, amorphous and unstructured legal proposition, for STAPLETON, among other things, that would difficult the ability of people to understand law and to conform their conduct to it⁴⁵ .

Thus and despite analyzing situations and issues of evidence apparently related only to thefactual cause⁴⁶ , STAPLETON concludes the need to separatefactual causation from thescope of liability and the need for the Australian courts to abandon thecommon sense causation slogan, due to two reasons: i) better description of the nature, variety and complexity of the problems inherent in thetruncation of responsibility ; ii) possibility of taking into account other factors, particularly related to the disproportion or attenuation or to the concern of protecting a certain type of wrongdoers, and to understand what principles, policies and concerns prevail on thescope of liability issue⁴⁷ .

III. However, there are authors who deny that distinction. Beyond HERBERT HART and TONY HONORÉ, whom STAPLETON imputes the bifurcation of causation in law, it is worth mentioning WEX MALONE and MICHAEL MOORE.

III.1. In the late 50s, WEX MALONE, in a very suggestive article, called «Ruminations on Cause-In-Fact»⁴⁸ , focused oncause-in-fact , arguing that it is a legal question knowing which test can be used to establishfactual causation . Hence, for MALONE, the satisfaction of this liability element could not be purely factual. Even if the facts are the same, the law can make a different recommendation on the type of test to use, producing therefore a different result. For MALONE, the centrality offactual causation to consider someone liable for negligence should be rejected specially in cases of factual uncertainty, being thus sufficient to make a responsibility judgment placing someone at risk together with the materialization of this risk into an injury. This would imply the abandonment of thebut-for causation requirement or subsuming it under the wider purposes of the Tort Law policy. In the words of MALONE:«All rules of conduct, irrespective of whether they are the product of a legislature or are a part of the fabric of the court-made law of negligence, exist for purposes. They are designed to protect some persons under some circumstances against some risks… The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises»⁴⁹ . Therefore, according to MALONE,«whenever it can be said with fair certainty that the rule of conduct relied upon by the plaintiff was designed to protect against the very type of risk to which the plaintiff was exposed, courts have shown very little patience with the efforts of defendant to question the sufficiency of the proof on cause»⁵⁰ .

III.2. The work of HERBERT HART and TONY HONORÉ, «Causation in the Law»⁵¹ , appeared in 1959 as a response to the skepticism caused by the work of GREEN regarding the alleged lack of structure of the normative concerns that the courts would have to deal with. Making use of the tools of language analysis, HART and HONORÉ sustained that what would interest to the law and the stuff that law should be worried with would be the notions of causation of the common man and not of philosophers or scientists. Furthermore, these non-legal notions of causation based on common sense would be rooted in our thinking and common ideas about whether or not it is fair to punish or compensate someone. Examining how causation is used in both analytical phases (cause and proximate cause/remoteness), HART and HONORÉ unveiled four distinct notions embedded in common sense, thus disproving GREEN’s thesis that the field of proximate cause / scope could not be expressed as clear principles. A major criticism⁵² of HART and HONORÉ’s position on causation in law lies in the lack of separation between the contexts in which courts have used causal language only to communicate involvement regarding the causation element cause of action and the contexts in which the courts have refused proximate cause/scope to communicate the refusal of accountability of someone for the result with which would be related the breach of duty. HART and HONORÉ did not explore the normative reasoning in truncation of responsibility, preferring to label it only causal and likely to be presented to an instructed jury⁵³ . That is, HART and HONORÉ lay on the ground all of GREEN’s work to convince the courts to separate two types of inquiry: the causal inquiry and the legal inquiry.

III.3. MICHAEL MOORE project goes, in some extent, in line with HART and HONORÉ.

Initially, MOORE took the view that corrective justice would be the primary purpose for Tort Law to accentuate the need of connecting legal and moral responsibility. This link would require the acceptance of a metaphysical interpretation of the cause. But, since law had mixed too many extraneous elements in causation, it would be necessary to ignore certain theories. MOORE criticized HART and HONORÉ’s use of ordinary language philosophy, defending that causation should not be fixed by the convention of current usage. Causation would bematter-of-fact inviting a theoretical speculation⁵⁴ .

Among other reasons, MOORE’s project was criticized⁵⁵ for embracing a physicalist approach, which sees causation as a real relationship in the world, forgetting that it is metaphysically implausible that the universe can provide a moral rationality.

Later, MOORE examined causation as a prerequisite for liability in law, arguing that it would be closely related to natural causation as a relation present in the center of scientific explanation. For MOORE the concept of causation invoked in law is not a specially defined legal concept, but the same relation invoked in scientific explanation and the reasoning inherent to common sense. To this extent, MOORE started a project of triangulation between law, science and metaphysics in order to identify one single notion of causation, which allowed him to reach the following conclusions: i) causal relations are not grounded in laws of nature, counterfactual or any other general characteristic of the world, thus assuming a singularist conception of causation; ii) there is no causation in omissions, but only a counterfactual dependence without causation that provides a basis for a kind of reduced responsibility⁵⁶ .

This latter position of MOORE was also criticized by some authors⁵⁷ , who considered that: it is based on a disjunctive view of the grounds of legal responsibility and moral responsibility; it leads to a rejection of causation in omissions, which would prevent for example to consider the beheading of someone the cause of his death and, therefore, satisfy the legal notion of murder, which would determine also the impunity of those who had carried out the beheading; it admits that the counterfactual dependence can be used between correlates of a common cause, when there is no moral responsibility linked to an act by virtue of this being a mere correlate of a crime.

IV. Finally, there are authors who, while not denying the existence and importance of the distinction, argue that this distinction is not and cannot be considered clear.

IV.1. For example, ALEX BROADBENT, former professor and researcher of theDepartment of History and Philosophy of Science at the University of Cambridge and now working in theDepartment of Philosophy at the University of Johannesburg , argued, in a recent article, called «Fact and Law in the Causal Inquiry»⁵⁸ , that, although the distinctions betweenfact andlaw and betweenfactual causation andlegal causation exist and are important, it is not possible to consider the satisfaction offactual causation as a merequestion of fact .

In this article, BROADBENT begins with the premise of the importance of the distinction betweenfacts andlaw in legal practice, particularly for clarity of reasoning, justice or common sense, and stresses that the first must be answered by proofs and inferences arising from evidence and that the second should be answered by a standard, a precedent or a policy. But, because we cannot always completely separate issues, BROADBENT claims to be difficult to defend a clear and universal theoretical distinction. Still, a context where BROADBENT believes that the distinction looms large is the causal inquiry, to which the distinction betweenfact andlaw was transferred.Matter-of-fact would relate tofactual causation (the element of responsibility that has to do with the causal link between the illicit and injury), whilematter-of-law would be distributed by the other elements of responsibility, being those who directly respect the causal nexus and the limitation of their legal significance grouped on the concept oflegal causation .

For BROADBENT the strategy of implementing in the causal inquiry thefact /law distinction and, consequently, thefactual-causal /legal-causal distinction, is an obvious strategy and has the merit of simplicity, in particular for those, like RICHARD WRIGHT, who believe it is important to distinguish clearly betweenfact andlaw in the causal inquiry. To this extent, BROADBENT accepts WRIGHT’s thesis regarding the importance of a clear distinction betweenfact andlaw in the causal inquiry. However, he rejects that such a distinction should be implemented at the expense of distinguishing between the elements of responsibility, since law cannot be considered to be outsidefactual causation and various causal considerations underlielegal causation theories.

According to BROADBENT, the satisfaction offactual causation is not a purely factual or empirical question, but partly amatter-of-law . Since it does not make sense to purge its legal components fromfactual causation , the only way to preserve the distinction betweenfact andlaw in the causal inquiry is trying to discern, in this element of liability, the legal components and the strictly factual components.

In this context and to allow a better distinction betweenfacts andlaw in the causal inquiry, BROADBENT, following the contrastive causal model developed by PETER LIPTON, whereby«many of our why-questions are explicitly or implicitly contrastive» and to answer them«is not enough to mention the cause of the fact» , requiring even the quotation of a causal difference between the fact and the contrast, suggests a contrastive perspective⁵⁹ .

According to BROADBENT, not only the contrastive model fits well with the difficulties posed by the context sensitivity of explanation, since it involves different answers for different questions, but it allows an objective component and a subjective component of the explanation: the question can be specified by those who want to explain the fact, although the difference between the fact and the contrast (Difference Condition ) is a question of objective fact. For BROADBENT, the choice of the legally appropriate contrast is amatter-of-law and to know whether the injurious conduct contrasts with the legally appropriate for the non occurrence of the outcome is amatter-of-fact⁶⁰ .

To that extent, BROADBENT suggests the followingcontrastive condition on causation in law:«For a defendant’s breach of duty to satisfy the causal element of liability with respect to a given harm to the claimant, the breach must be a difference between the instant case, and the legally appropriate foil where the claimant did not suffer that harm» . And, realizing the need to explain what it is thelegally appropriate foil , BROADBENT concludes:«A foil is legally appropriate for proving that a defendant’s breach was a cause of damage only if the foil involves the mere meeting of the defendant’s duty of care (not the meeting of the duty in some particular way beyond what the duty itself requires)»⁶¹ .

IV.2. Similarly, JONATHAN SCHAFFER, professor and researcher of theAustralian National University , specialized in metaphysics and epistemology, and whom had sustained even before BROADBENT a contrastive perspective based on the ideas of BAS VAN FRAASSEN, PETER LIPTON, CHRISTOPHER HITCHCOCK, JAMES WOODWARD and CIS MASLEN applied to law⁶² , although in ways not always considered clear⁶³ , recently presented an improved version of his contrastive perspective of causation applied to law⁶⁴ .

SCHAFFER doubts of the possibility to reach a satisfactory analysis offactual causation stripped of its selective judgments of explanatory moral, legal or otherwise relevance. For SCHAFFER it is not obvious that we are in possession of such a concept or that our institutions about causation can provide any evidence about it. SCHAFFER accepts HUME's thesis that the concept of causation, along with the concepts of resemblance and contiguity, is the foundation of all our reasoning regardingmatter-of-fact . And, understanding that law uses the term cause in its ordinary sense rather than in a sense of its own, SCHAFFER believes that the concepts of causation and legal responsibility can illuminate each other.

The contrastive perspective proposed by SCHAFFER is a continuation of HART/HONORÉ and MOORE’s projects to clarify how the causal reasoning works in law. For that reason, SCHAFFER begins to explain the contrastive perspective of causation outside the law: since the causal judgment is a judgment about the causal relation, it should not only refer to the cause and the effect as it is commonly understood, but also to the respective contrasts. Despite the problems posed in cases ofredundant causation (over determination andpreemption ) and indeterministic cases, SCHAFFER stressed that the contrastive perspective provides a better understanding ofabsence causation : omission cases are treated as referring to actual events through a negative description and the use of this negative description is interpreted as establishing the contextually implied contrast that is considered absent. Moreover, according to SCHAFFER, the contrastive perspective solves the metaphysical and intuitive difficulties of theabsence causation , because omissions are not considered a nothing but ways to describe actual events that specify the relevant contrasts⁶⁵ .

Transposing the contrastive perspective to law, SCHAFFER believes that causation in law requires a specification of thecausal contrast and theeffectual contrast . Therefore, a distinction must be made: if we are concerned with the conduct, we must imagine analternative relevant action , that is, alawful conduct ; if we are concerned with the damage, we must imagine analternative relevant outcome , that is, thebetter outcome for the victim. Concerning the causal contrast, SCHAFFER considers that, from the point of view of the conduct, causation in law is better understood as involving a causal contrast, which is specified as a conduct in accordance with the law (lawful conduct ), as: causal judgments in law involve a comparison between the actual course of events and the course of events in a hypothetical scenario in which the subject acts in accordance with the law (lawful conduct ); the content of this hypothetical scenario cannot be extracted only from the conduct of the subject, needing to be specified; in responsibility contexts, the law accomplishes this specification describing the removal of the subject's conduct in relation to the course of events in accordance with the law (lawful conduct ); this course of events in accordance with the law (lawful conduct ) is the minimal compliance to the duty which violation was alleged by the victim in the form designated by the person who acted. With regard to theeffectual contrast , SCHAFFER argues that from the standpoint of damages, causation in law is better understood as involving aneffectual contrast concerning a comparative outcome more advantageous to the victim (better outcome ) and that this also represents a crucial aspect in the quantification of responsibility as: causal judgments in law involve a comparison of the actual outcome with a hypothetical more advantageous outcome (better outcome ) to the victim; that hypothetical outcome cannot be extracted only from the actual outcome, needing to be specified; in responsibility contexts, the law accomplishes this specification describing the actual outcome in terms of comparative damage; the hypothetical result is considered in the quantification of responsibility; the most advantageous outcome (better outcome ) to the injured person is reflected in the alternative outcome, assessed at the time of the actual outcome, taking into account other relevant factors, and causally prevented by the conduct of the person not in accordance with the law⁶⁶ .

Regarding BROADBENT’s contrastive perspective, SCHAFFER generally accepts it, though with three nuances⁶⁷ . First, SCHAFFER does not intend to characterize the causal relation assuming a form of contrastivity: instead he considers it intuitive and limits itself to characterize the number and functions of thecausal relata . Secondly, SCHAFFER does not start from theeffectual contrast to verify if the actual cause is there: instead he starts from thecausal contrast and then uses the counterfactual scenario to see if theeffectual contrast is there. Finally, SCHAFFER takes into account thecausal contrast and not only theeffectual contrast , allowing him to properly solve cases ofmultiple causes of conduct , although he admits that such cases could also be resolved with BROADBENT’s thesis with a modification of thelegally appropriate foil in order to consider that it involves only minimal compliance with the duty invoked, in the way selected by the wrongdoer.

I. As seen before, the distinction between«cause-in-fact» and «cause-in-law» arises both in Civil Law countries and Common Law countries. In this dual representation,causality in Tort law would be composed of two elements of successive application in order to consider someone responsible for a certain outcome.

In some cases, prevalence of determining the «cause-in-law» is defended, because this is considered the specifically normative moment. In other cases, to the research of the«cause-in-fact» is given a special emphasis, because it is considered to be the object over which the normative activity of truncation of liability or the normative limitation of the outcomes determined in the«cause-in-fact» moment will be done.

II. In Civil Law countries, a greater attention is normally given to theimputation moment, that is, to the determination oflegal causality or«cause-in-law» . This preference for the normative instantiation possibly has roots in the philosophical thought of IMMANUEL KANT and in the legal thought of HANS KELSEN, especially in their perspectives regardingimputation .

Briefly, it can be said with STANLEY PAULSON, that the Kantian view aboutimputation is based on two leitmotifs. On one hand, an event that is attributed or imputable to an individual who is the author or originator of that event, and in which it is by virtue of this allocation orimputation that the event is perceived as an act or intention for which the individual is responsible. On the other hand, this act or intent is subject to laws, by which the legal effect of the act can be judged⁶⁸ .

KELSEN did not fully adopt the traditional view ofimputation as advocated by KANT. KELSEN’s view regardingimputation is part of the pretension to affirm legal normativity against any attempt to reduce it to mere concatenations of fact. For SYLVIE DELACROIX, the methodological dualism followed by KELSEN, in line with the Heidelberg school of the late nineteenth century’s neo-Kantian (as RICKERT and WINDELBAND), consisted not only in differentiating the world of facticity from the world of normativity, but also in defending that there were two worlds without any link, corresponding to two different spheres of knowledge. For KELSEN, a question about a specificSollen can only lead to anotherSollen, as a question about a concreteSein can only lead to anotherSein . Concerned with explaining legal normativity, without any mechanism of natural law and without reference to social facts, KELSEN is led to an explanation of legal normativity from itself. Both the category ofimputation (Zurechnung ) and the fundamental norm (Grundnorm ) represent the transcendental-logical condition that allows us to interpret normatively the legal phenomena. KELSEN seeks the source of normativity in legal normativity itself, excluding the conceptualization of any extra-legal context. Only in the first edition of thePure Theory of Law , regarding the attribution of content to the basic norm, does KELSEN make reference to non-normative considerations. In the second edition of thePure Theory of Law , the basic norm is characterized by KELSEN as fiction. Instead of explaining what makes the norm normative and making reference to the source of legal normativity, KELSEN merely established (through the basic norm) conditions for a normative interpretation of legal phenomena⁶⁹ .

KELSEN distinguished the«a priori scheme of organizing knowledge in the sciences that deal with human conduct determined by norms» (principle ofimputation ) from the«scheme used in sciences that deal with human conduct determined by causal laws» . The concept ofimputation would be the«organizing category of understanding jus normativity» , which would enable us to understand the structure and content of laws. For KELSEN,imputation would«play in the laws of normativity (Rechtsgesetze) the same role that causality fulfills in the laws of nature» . Hence, there would be a«functional analogy» .Imputation would«differ from causality because the connection of the elements of the legal proposition is from the ought order (that is, it results from a norm posted by the legal authority), while the connection of the elements in natural law is from the is order (that is, it derives from natural necessity) and, so, is independent of any will» . Therefore,«imputation (…) can fail in practice (…) while causality never fails» , because otherwise«the law of nature would not exist» . In addition,imputation series would have a beginning and an end, whilecausality series would be endless in both ways⁷⁰ .

By«functionally matching» the principle ofcausality with the principle ofimputation , KELSEN«wished to abandon the metaphysical or ontological considerations about the status of (…) imputation or causality relations and to embrace (…) a logical perspective about the structure of the legal propositions and of the laws of nature» :«imputation would express the connection of the facts established in the legal proposition as an assumption and consequence the same way causality expresses the copulation of the cause with it effect» . In«both cases there [would be]an asymmetrical relation between two propositional elements which is given by the implication of the second on the first element» . This«implication connector [would be]immune to ontological or metaphysical interpretations»⁷¹ .

III. In Common Law countries, greater attention is normally given to the«cause-in-fact» . Perhaps this preference has some roots in the philosophical thought of DAVID HUME and legal thought of JEREMY BENTHAM, JOHN AUSTIN⁷² and HERBERT HART.

[RZ 66] HUME defended the distinction betweenis andought . In the First Section (Moral Distinctions not deriv’d from Reason ) of Part I (Of Virtue and Vice in General ) of Book III (Of Morals ), HUME«argues against moral rationalism by observing that other systems of moral philosophy, proceeding in the ordinary way of reasoning, at some point make an unremarked transition from premises whose parts are linked only by «is» to conclusions whose parts are linked by «ought» (expressing a new relation) — a deduction that seems to Hume «altogether inconceivable»» . For him attention for this transition«wou’d subvert all the vulgar systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceiv'd by reason»⁷³ . Despite all the interpretive controversy regarding this passage⁷⁴ , for HUME noought follows from anis .

The application of HUME’s law in the context of BENTHAM’s legal theory, who distinguished betweenwhat the laws are andwhat the laws ought to be , besides being the basis of separating an 'expository' or positive science of law from ethics or political philosophy, has led to consider that law is somehow afact that can be ascertained and determined. BENTHAM wanted to point out thefacts behind the law, which were the truth of the law to him⁷⁵ . As FREDERICK SCHAUER wrote,«Bentham’s legal codes (…) attempted to preclude judges and other legal decision-makers in individual cases from making political, policy, economic, or moral judgments. Judicial decision-making was limited, if it had to exist at all, to the application of linguistically clear codes to particular events, with legal outcomes to be reached almost entirely by applying the ordinary meaning of the terms in the legal codes to the facts of particular cases. Determining moral questions was simply not part of the process»⁷⁶ .

In AUSTIN’s case, whose work can be considered«as offering a «science» of law» and which«may parallel the continental European theorists he had read, and later continental theorists like Kelsen»⁷⁷ , he argued that«law produces a habit of obedience on the part of those who would otherwise be disinclined to take law’s directives as reasons for action» . For AUSTIN, legal obligation is«reducible to a question of fact»⁷⁸ .

In turn, the central task for HART's philosophy of law was to explain the normative force of legal propositions that result from the legal academic writings and legal discourses of judges and lawyers. To this extent, HART focuses his attention on the context in which legal propositions make sense. In the case of legal norms, HART adds an extra dimension, which consists in accepting the rule of recognition, but does not identify the reason why the standards of this rule must be observed. As BRIAN BIX observed,«Hart's theory, grounded partly on the distinction between «obligation» and «being obliged», was built around the fact that some participants within legal systems «accepted» the legal rules as reasons for action, above and beyond the fear of sanctions. Hart's «hermeneutic» approach, building on the «internal point of view» of participants who accepted the legal system, diverged sharply from Austin's approach to law»⁷⁹ . The existence of the rule of recognition is, according to HART, just amatter-of-fact , being established by judicial practice that expresses an internal point of view⁸⁰ . As noticed by JOSÉ SOUSA E BRITO, this raises a problem for HART’s construction: If the law has in «its origin a fact, how can one deny that this fact can be deduced from it?»⁸¹ .

IV. Regardless of these possible affiliations and their problematic implications (that cannot be dealt with and developed here), I believe that the problem of understanding how can we continue to sustain the distinction between«cause-in-fact» and«cause-in-law» remains and also to affirm that, in some cases, it is necessary to give greater importance to one or another of those elements.

I think that it is necessary to rethink the terms in which the distinction between«cause-in-fact» and«cause-in-law» can be admitted. This distinction is important from the analysis of causation standpoint and understandable even for procedural and judicial organization reasons. However, it cannot be affirmed as clear as sometimes it is intended and especially being presented as a dichotomy.

Let me try to justify what I have just said.

As mentioned earlier, the«cause-in-fact» /«cause-in-law» distinction somehow recaptures thequaestio facti /quaestio iuris distinction. But this last distinction, endorsed by the currents of thought inherent to normativism, legalism and scientism, has, in the way it is traditionally placed and solved, to be regarded as having limited heuristic value and to be considered obsolete.

I. In a relatively recent work⁸² , HILLARY PUTNAM focused on the dichotomy betweenfact andvalue .

Based on the frequency with which we hear the question whether it is afact or avalue judgment and that this question rests on the assumption thatvalue judgments cannot be statements offact and moreover are subjective, PUTNAM considered immediately useful to analyze the Kantian distinction, transformed by FREGE and criticized by QUINE, betweenanalytic (the set of truths that are tautological or true only by virtue of its meaning) andsynthetic (non-analytic truths)⁸³ . From this Kantian distinction⁸⁴ would result, in the positivist view, the contrast betweenfacts andvalues andfacts andtautologies oranalytic truths .

For PUTNAM the collapse of thefact /value dichotomy is analogous to the collapse of theanalytic /synthetic dichotomy⁸⁵ . The dichotomiesfact /value (or in another formulationis vs.ought ) andanalytic /synthetic (or in other formulationmatters-of-fact vs.relations of ideas ) have been, according to PUTNAM, essential to the classical empiricism and logical positivism⁸⁶ .

In fact, logical positivism sustained the tripartite classification of all our judgments insynthetic (empirically verifiable and falsifiable),analytical (true or false solely on the basis of logical rules) andother meaningless cognitive judgments (that fall under the ethical judgments, metaphysical and aesthetic)⁸⁷ . And since ordinary language was considered vague and confusing, logical positivists thought it was necessary to construct an artificial language to know if someone wanted to make a true or false statement according to the rules or conventions of this artificial language⁸⁸ . This statement would be verifiable by comparing the claims with observation or with his cognitive significance. So through theanalytic /synthetic dualism, logical positivists thought that all philosophical problems would be solved, leaving only technical problems⁸⁹ .

However, as PUTNAM points out, logical positivists fully stretched the notion of analyticity in order to reject the Kantian view of considering mathematical principles and the principle ofcausality bothanalytical andsynthetic⁹⁰ .

[RZ 79] PUTNAM recognizes that there are cases that fall into«statements of a language that are trivially true in virtue of the meanings of their words and statements that are not»⁹¹ . But, despite acknowledging this difference, PUTNAM believes that this does not mean that all other statements represent statements aboutmatters-of-fact (as intended HUME) orsynthetic statements (as KANT claimed)⁹² .

Moreover, for PUTNAM the ability to think without these dogmas would allow people«to enter in a whole new field of intellectual possibilities in every important area of culture» - what he called«the genuine «post-modernism»»⁹³ .

According to PUTNAM, the temptation inherent to thefact /value dichotomy and to banish values of the rational world is grounded on three main reasons. First, it is considered easier to qualify something as avalue judgment of subjective preference rather than commit to a view that sees always the possibility to discuss and consider the matter in dispute. Secondly, there is an epistemological appeal to find a metaphysical explanation for the possibility of ethical knowledge. Thirdly, there is the fear of cultural imperialism, albeit it is not inconsistent with recognizing the objective validity of our judgments and that such judgments are shaped by a particular culture and a particular problematic situation⁹⁴ . But for PUTNAM the solution is not to give up the possibility of a rational discussion nor to seek a metaphysical concept outside all contexts and problematic situations, but to investigate and discuss and try out cooperatively, democratically, and above all fallibilistically⁹⁵ .

II. Furthermore, for PUTNAM we must take into account that even in scienceknowledge of facts presupposesknowledge of values . Remembering a letter of JOHN DEWEY in which value was considered something that had to do with all of experience, and the ideas of CHURCHMAN, QUINE, REICHENBACH, CARNAP and POPPER, PUTNAM wrote:«value judgments are essential to the practice of science itself» ;«values - epistemic values, such as «coherence», «plausibility», «reasonableness», «simplicity», «elegance» and the like – are presupposed in the activity of selecting scientific theories» ;«not only there is no reason to think that the sorts of judgments I have been talking about (…) can be reduced to non-normative judgments; there is not even a serious sketch of such reduction»⁹⁶ .

In this sense, PUTNAM concluded:«my pragmatist teachers were right: «knowledge of facts presupposes knowledge of values.» But the history of the philosophy of science in the last half century has largely been a history of attempts – some of which would be amusing, if the suspicion of the very idea of justifying a value judgment that underlies them were not so serious in its implications – to evade this issue. Apparently any fantasy – the fantasy of doing science using only deductive logic (Popper), the fantasy of vindicating induction deductively (Reichenbach), the fantasy of reducing science to a simple algorithm (Carnap), the fantasy of selecting theories given a mysteriously available set of «true observation conditionals», or, alternatively, «settling for psychology» (both Quine) – is regarded as preferable to rethinking the whole dogma (the last dogma of empiricism?) that facts are objective and values are subjective and «never the twain shall meet». That rethinking is what pragmatists have been calling for over a century. When will we stop evading the issue and give the pragmatist challenge the serious attention it deserves? »⁹⁷ .

I. If we turn to the law, we see that nowadays, thefact /law distinction andmatter-of-fact /matter-of-law distinction has mainly a procedural significance, representing: i) the criteria for deciding the roles of the procedural subjects; ii) the criteria of judgment regarding the structure of the trial and sentence; iii) the criteria for deciding jurisdiction between different courts⁹⁸ .

In the past, what people sought to affirm with thefact /law distinction ormatter-of-fact /matter-of-law distinction, was this: first, that there would be, on one hand, a reality that was empirically ascertainable, verifiable and proven, spatial-temporally existent and capable of empirically objective judgments and evidence (fact /matter-of-fact orquestion of fact ) and, on the other hand, a legal normativity in its specific objectification, the legal rules in their specific determination, the legal interpretation and all normative judgments and evaluations that had its foundation in that normativity (law /matter-of-law orquestion of law ); second, that we would be before two unbridgeable worlds⁹⁹ .

However, the assumptions in which this traditional way of seeing the distinction, are now in question, since: i) the starting point and purpose of the legal decision is considered to be the legal case, that is, the situation and the social-historical event that are legally relevant and targeted by the legal-problematic intentionality; ii) normativity is selected and determined by the case’s specific legal issue; iii) the reality needed to objectify and prove is considered to be the reality of the legal case; iv) the legal decision is not limited to articulate logically thefacts and thelaw , but must provide to the case’s legal problem a solution that its concrete and real problematicity requires; v) normativity is not considered as a given thinkable as object, but as a problem, and normativity is understood as transcending the positive rules of law; vi) it is not considered consistent with the practice perspective of the facts legal relevance a conception of the facts that is theoretical-scientific and empirical-neutral¹⁰⁰ .

In addition, the apparent clarity and possibility of the distinction was called into question and all legal issues of a particular decision began to be considered mixed questions. This implied recognizing the impossibility of an absolute or logically radical distinction betweenfact andlaw¹⁰¹ .

Now, the specific normativity of law invites us to accept that the unity between thequestion of law and thequestion of fact is necessary in virtue of the legal case and judicative synthesis unit¹⁰² .

II. Thus, what is accepted today is the possibility of making the distinction in the methodological analysis and in the decision of the legal case. Thequestion of fact concerns to the object and given the concrete problem, and we can distinguish: i) the constitution of the legal case through the objectification of its concrete legal significance, that is, by its definition and determination in the global context of the case’s history and social situation and from which emerges the legal problem; ii) the evidence or legal proof of the objective elements of that distinction. In turn, thequestion of law concerns the ground and criteria of the judgment and of the juridical decision, and we can distinguish: i) an abstractquestion of law , which represents the interrogation by the positive legal criteria, that is, the norm that is applicable or the legal normative basis of the court’s decision; ii) a concretequestion of law , which corresponds to the judicative decision of the case’s legal problem¹⁰³ .

Anyway,question of fact andquestion of law cannot be considered two separate, independent and unbridgeable entities, but entities that are mutually determined by and refer to each other. Thequestion of law , while being a development that explains and that is judicative of the case’s legal problem, cannot be considered or solved without being the solution in a unitary reference to that problem. And thequestion of fact , by dealing with objectification and evidence of the objective relevance of a specific legal problem, cannot be considered or solved outside the concrete legal problem¹⁰⁴ .

Regarding thequestion of fact , this means that: i) in the objectification of the concrete legal significance are involved all elements that could constitute data or objective conditions for the concrete legal problem (empirical, socio-cultural and legal); ii) in the proof of these elements one can use, in addition to the theoretic-scientific model, any model that the legal process determines¹⁰⁵ .

Since nowadays the distinction betweenquestion of fact andquestion of law is primarily considered methodological and cannot undermine the unity of the legal case, I think we can conclude two important things forcausality .

First, that«cause-in-fact» and«cause-in-law» cannot be considered two independent, autonomous and unbridgeable entities, but entities that influence, presuppose and refer to each other. Even assumingLegal Semiotics perspective, which according to some views leaves unconsidered the problem of the judicative realization of law’s validity,«the neat distinction between rule and fact (…) becomes ‘obsolete’, for both are constructed within language and make sense in narrative terms» , residing«the ‘difference’ in the kind of modality being expressed»¹⁰⁶ .

Secondly, that at the levels of objectivation and evidence of the«cause-in-fact» can participate legal and other non-empirical elements and that non theoretical-scientific models can be used.

This conclusion will allow accommodating, for example, inference causation, whose use some scholars have long called for,¹⁰⁷ or even the narratives from Anglo-American countries.

In the case of law, STAPLETON believes that, given the variety of investigations that law presently needs to do, the choice should fall on a question that captures all the ways in which afact may be involved in the existence of the particular phenomenon under discussion: necessity, duplicated necessity or contribution. For STAPLETON the wordinvolvement accommodates all investigations that law must do. Additionally, since««involvement» is identified by our knowledge of the physical laws of nature, evidence of behavior and so on, it carries the potential for the concept of causation in the Law to be untainted by normative interrogations and controversies» , ensuring«that normative concerns are located elsewhere in the legal analysis where traditionally they are more likely to be exposed as normative and evaluated accordingly» . The use ofinvolvement would have the advantage of ensuring that the causal usage does not mask controversial issues related to normative reasons and that these issues are addressed to other doctrines that will more easily explain their normative nature¹⁰⁸ .

Furthermore, STAPLETON argues, and I also agree with her, that, regarding the causal inquiry, the social practice of law can ignore many issues that are considered problematic by philosophers. Law raises its own conceptual filters. Unlike metaphysics, law’s framework and methodology provide filtering mechanisms that: i) specify a small and finite number of factors; ii) point out which particular phenomenon of the world is under investigation; iii) specify the hypothetically relevant comparative worlds; iv) individuate the factors and the phenomenon in question taking into account the purposes of legal investigation¹⁰⁹ .

II. The need for specification proposed by STAPLETON implies that, before determining the«cause-in-fact» through thesine qua non /but-for orNESS tests , we should choose the legally relevant causal question, at least to avoid many of the problems that philosophy and science face regarding causation.

The choice of the relevant causal question points, I think, to a holistic view ofcausality , that is, one that does not consider thatcausality is not the result of two separate investigations but only one: the investigation of normativity.

I will talk more about this in the next topic. For now, I think it is enough to say that the anticipation of the factors that may be involved in a particular phenomenon has to take into account law’s framework and methodology which will mean, not only the need to specify the number of factors and to take a look into the particular phenomenon under investigation, but also the specification of hypothetically relevant comparative worlds and the individuation of the factors and the phenomenon in question taking into account the purposes of legal investigation. And, as JONATHAN SCHAFFER recently sustained, the contrastive view could be precisely the thesis about the number and function of therelata of the involvement relation and can provide the implementation of the necessity of specifying the set of factors whose possible involvement in the existence of a particular phenomenon is submitted to law’s research¹¹⁰ .

I. As we have seen, it is commonly understood to be essential for the causal inquiry establishing what is called in Common Law countriesfactual causation . Purists aboutfactual causation believe that it is first necessary to identify the causally relevant events and only then ask if they serve as causes in accordance with the purposes of law. Basically, the distinction betweenfactual causation andlegal causation would mean distinguishing (in a given process) between the objective facts about what causes what and judgments about the relevant facts.

However, the satisfaction offactual causation is not (just) aquestion of fact . And this is not only because the distinction under discussion does not mean nor can mean to transpose into the realm ofcausality the traditional view and solution for thequaestio facti /quaestio iuris distinction.

II. The issue ofcausality in law exists, as identified by ALEX BROADBENT, because of the«difficulty of saying what causation is» , since, in the legal context, causation requires«the involvement of legal devices in resolving certain awkward causal puzzles»¹¹¹ .

In my opinion, this has several implications that depart from the idea of understandingfactual causation as a purematter-of-fact .

II.1. First, I believe that law can and should choose the tests to ascertainfactual causation . At least, until there is an entirely appropriate and universal test forfactual causation , courts will and should always decide if and how the test applies.

Given the obstacles and deficiencies inherent to the analysis of causation, law has applied different tests in various circumstances, in some cases taking its application with a fair dose of common sense. This is demonstrated by the passage, in Civil Law countries, of theconditio theory to theAdäquanz formula, as well as by the existence, within Common Law countries, of a common practice, for example in the Australian courts, which STAPLETON criticizes¹¹² , to appeal tocommon sense causation .

RICHARD WRIGHT’s strategy or indeed any other that seeks to provide a clear statement of what causation is in factual terms, besides being much more difficult, forgets that legal responsibility is not limited to the existence of acausal fact .

In WRIGHT’s case, in addition to the fact that theNESS test does not solve all problems, since it reveals as insufficient as thebut-for test or thesine qua non test for solving cases where it is necessary to distinguish between a real cause and a hypothetical cause (for example, cases where A poisons the water of B’s canteen but, before B drinks it, C empties the canteen and B dies of thirst in the desert), he does not take into account that the decision about which tests should be used with respect to causation is and must always be a legal decision.

Law must have«a central role in determining which test is to be applied» to determine causation, so«however much we might feel inclined to insist that causal facts do not depend on our human laws, satisfaction of the cause-in-fact element of legal liability nevertheless does depend on our laws: and in this sense, it is never a purely factual matter»¹¹³ .

Until there is an entirely appropriate and universal test forfactual causation, courts will and should always decide if and how the test is applicable. And since the result of the causal inquiry is, through the decisions of the courts, partly determined by law, I, following BROADBENT position, sustain that one cannot argue thatfactual causation , as an element of responsibility, constitutes a purequestion of fact .

II.2. Secondly, I think that, in certain cases, courts can refuse the traditionally used tests to ascertainfactual causation and choose other methods that are based on normative considerations.

In fact, there are a number of cases, particularly negligence cases, which cannot be solved through the tests commonly used to determine the«cause-in-fact» .

In cases ofnecessary factors , the causal nexus is determined according to thebut-for test or thesine qua non test , and the controversial issues concern thelegal or normative truncation . That is, in these cases, if we prove that the illicit fact is thefactual cause of the outcome, we only need to determine whether the outcome can or cannot be considered taking into account thescope of responsibility , which corresponds to a normative judgment and not to aquestion of fact or to a common sense question.

But there are cases in which thebut-for test orthe sine qua non test are rejected (over determination cases). On one hand, in cases ofmultiple andsufficient factors (for example, the case of two hunters who carelessly fire their weapon and someone that was doing a walk in the mountain is hit by two distinct bullets but equally sufficient to kill a person, or the case of two children that fired two weapons because their parents did not control them and someone that was doing a walk in the mountains is hit by two bullets but equally sufficient to kill a person), each conduct or omission is considered a cause, albeit it is not possible to determine which one caused the outcome. On the other hand, even in cases ofnon necessary andnon sufficient factors for the outcome but that individually contribute to the existence of the phenomenon (for example, the case of five members of a club who vote unanimously a motion to expel a certain member of the club, although the statutes require only a majority of three members, but they do it independently and against the statutes), law is focused in considering someone responsible and does it by using a broad notion of cause in order to accommodate this contribution.

In theseambiguous oratypical cases , scholars and courts rely upon other methods, namely: i) shifting the burden of proof of causation in favor of the victim; ii) considering someone responsible for materially increasing the risk of injury; iii) inferring causation based on a reasonable finding of the facts. The justification for using these methods is that they allow more easily dealing with these cases, especially to adjust causal theories to compensate their lack of evidence.

It is true that, for some scholars¹¹⁴ , any of these cases would have a solution in light of theNESS test . But at least in cases ofpartial over determination , in which there arenon necessary andnon sufficient factors for the outcome but that individually contribute to the existence of the phenomenon,«the separation of the sufficient conditions sets, of which any conduct is a necessary condition, may raise problems» , since it must be at least«subordinate to a de minimis criterion» , even if theNESS test does not provide any limit¹¹⁵ .

In any case and regardless of the criticisms that can be directed to such methods¹¹⁶ or any others that may be presented to solveambiguous oratypical cases , what is important to keep hold of is that on the basis of the presentation and application of the methods there are normative considerations. And this would undermine the thesis that the«cause-in-fact» inquiry is merely amatter-of-fact .

II.3. Thirdly, I think that courts must choosefactual causes and take up a selective notion of causation, that is, a normatively relevant notion of causation.

As BROADBENT advocates, considerations of relevance at thefactual causation moment are desirable¹¹⁷ . Even in the identification ofcausal facts , the outcome of the investigation is amatter-of-law , least because in some cases a selection of thecausal facts that we cannot identify must be made.

And, according to BROADBENT, the selection of the causes that we are interested in is admissible, especially because law follows the same causation concept of common sense, from which one cannot dissociatefactual causation . Moreover, a purely factual notion of causation could not be conceptually prior: otherwise it would undermine the common sense basis of our legal judgments. Furthermore,«these relevance considerations are not satisfactorily handled as purely legal restrictions on the causal facts» . Immediately becauselegal causation is not simply the limitation of responsibility after establishing the causal nexus: through it arise policy and moral considerations, which operate through principles that are not strictly causal. For example, adequacy or remoteness of damage theories are based on the objective or reasonable foreseeability of the outcome. In some cases, a non causal principle of moral guilt according to which duty requires the ability to do something works. In other cases, moral principles are not involved, but pure policy reasons¹¹⁸ .

II.4. Fourthly, I think that in cases of factual uncertainty (for exampleover determination cases), it can be considered consistent with the nature and structure of Tort Law and reflective and supportive of it appeals to normative principles of justice and fairness.

In a recent article, called «Normative, Fairness, and the Problem of Factual Uncertainty»¹¹⁹ , ANDREW BOTTERELL and CHRISTOPHER ESSERT, following ERNEST WEINRIB, ARTHUR RIPSTEIN and BENJAMIN ZIPURSKY pointed out a relevant aspect.

Assuming to be uncontroversial thatfactual causation , opposed tolegal orproximate causation , has a central role in typical cases of negligence, BOTTERELL and ESSERT were confronted with the following problem: the existence of cases in thefactual causation domain in which thebut-for test or thesine qua non test do not work because, although intuition points out to consider responsibility, it is not possible to state the cause of the injury, even in probabilistic terms. These cases, so-called atypical by BOTTERELL and ESSERT, include situations ofcausal indeterminacy or, in another terminology, situations ofover determination (where the difficulty lies in the concept of causation) and situations ofhistorical uncertainty or, in another terminology, situations ofjoint determination (where, usually due to lack of scientific knowledge, the difficulty lies in the fact that we are unable to access thefacts in question). In such cases, according to BOTTERELL and ESSERT, the courts have put away thebut-for test or thesine qua non test , sustaining that they are unfair, and have decided on other grounds: intuitively or according to common sense¹²⁰ .

Rejecting strategies of eliminatingfactual causation as a prerequisite for imposing responsibility for negligence (WEX MALONE), of considering that in these cases it is not possible to declare responsibility and of reformulating the concept of causation (RICHARD WRIGHT)¹²¹ , BOTTERELL and ESSERT, following WEINRIB, RIPSTEIN and ZIPURSKY, try to find a solution that seeks to understand Tort Law on its own terms: in short, taking Tort Law seriously¹²² . While reaching the conclusion that«abandoning the requirement of factual causation in atypical cases also manifests negligence law’s underlying normative structure» , BOTTERELL and ESSERT argue that«approaches to the problem of factual uncertainty that appeal to such normative concepts and principles to make sense of atypical cases are in no way inconsistent with the nature and structure of negligence law. Indeed, the opposite is true: in taking negligence law seriously as law, such approaches are instead reflective and supportive of it»¹²³ .

I. From what I have just said, I think that, besides sustaining a holistic perspective ofcausality , one can stress thatcausality in law has a normative nature, even when we are talking of the causal inquiry regarding the«cause-in-fact» .

If we understand normativity not only as KELSEN and HART did but also adding that, for normativity to be valid, it must be recognized by every moral participants and that the moral participants’ recognition results from a pre-conceived idea of legal normativity¹²⁴ (based on ethics, moral or any other thing that we can consider to be a source of normativity), one can emphasize that all judgments aboutcausality are normative, since:

1. Following HILARY PUTNAM and CASTANHEIRA NEVES,«cause-in-fact» and«cause-in-law» cannot be considered two independent, autonomous and unbridgeable entities, but entities that influence, presuppose and refer to each other and that at the levels of objectification and evidence of the«cause-in-fact» can participate legal and other non-empirical elements and can be used non theoretical-scientific models;
   
   
2. As JANE STAPLETON sustained, we need to make a preliminary choice of the legally relevant causal question, which forces to thinkcausality in a holistic way, as it implies an anticipation of the factors that may be involved in a particular phenomenon taking into consideration law’s framework and methodology. This means that one must:
   
   
   • Specify a small and finite number of factors;
     
   • Point out which particular phenomenon of the world is under investigation;
     
   • Specify the hypothetically relevant comparative worlds;
     
   • Individuate the factors and the phenomenon in question taking into account the purposes of legal investigation.
     
   
   
3. Following ALEX BROADBENT, the satisfaction offactual causation is not (just) amatter-of-fact , since the need to involve legal mechanisms to solve awkward causal puzzles makes it difficult to say what causation is in the context of law. This implies that:
   
   
   • Law can/should choose the tests to ascertainfactual causation ;
     
   • In some cases, courts can refuse the traditional tests and choose other methods that are based on normative considerations;
     
   • Courts must choose thefactual causes and take up a selective notion of causation, that is, a normatively relevant one;
     
   • In cases offactual uncertainty , appeals to normative principles of justice and fairness can be considered consistent with the nature and structure of Tort Law and reflective and supportive of it (as BOTTERELL and ESSERT have argued).
     

Besides that, I think that we can say that all judgments aboutcausality are normative also because, in a legal process, the judge and the parties involved cannot be seen as mere subjects that try to access objects (thefacts ) without any pre-conceived notion of thefacts in question normativity and its relevance for the case’s possible legal solutions.«There are no meanings strictly appropriate to the object and independent of the subject. In the normative world, any understanding, any meaning, will always be a projection of the subject, it will reflect always the moral parameter that the subject has internalized and that the subject is as such (…). In this context, it will always be vain any attempt to devise methods to investigate alleged meanings independent of the subject. Rather, we must access to the moral parameter that law as law reflects and, simultaneously, to realize ontologically the understanding as relevant from the reflection or the projection of that same parameter».¹²⁵ .

In the paradigm that I am suggesting, the issue ofcausality should be presented using some of JANE STAPLETON, JONATHAN SCHAFFER and ALEX BROADBENT’s basic ideas:

Second, the possibility to argue that this causal inquiry should be put in terms of SCHAFFER and BROADBENT’s contrastivity, that is, as a contrast between the conduct and the outcome that are unlawful and the conduct and the outcome that can be considered lawful or in accordance with the law. The first element of this contrast view would be the conduct and the outcome from which the legal case emerged (what I would callinvalid normativity ). And the second element of the contrast would be the conduct and the outcome that can be considered lawful or in accordance with the law (what I would callvalid normativity ). Although one is considered invalid and the other valid, that does not change that they are both normativity¹²⁶ .

Note that SCHAFFER’s contrastive perspective is compatible, not only with the traditional so-called normative causal theories (adequacy, scope of liability and risk), but also with the tests that are normally used in judicial practice to ascertainfactual causation :sine qua non ,but-for orNESS . On one hand, by specifying the possible world, the contrastive view provides the theoretical basis for thesine qua non test , since, when it is asked what would have been the course of events and the outcome if the subject conduct and its outcome had not taken place, it allows to interpret the question as presupposing a contrast between the actual conduct and result and the conduct and result that are considered in accordance to the law or, at least, a better outcome for the victim. On the other hand, theNESS test is based on an implicit contrastivity since, when the test is used, what is considered is whether the result of replacing the cause in the set of factors by thecausal contrast legally implies theeffectual contrast¹²⁷ .

I must confess that I am still working on this sort of different approach tocausality regarding legal normativity. In other occasion – which I expect to be soon – I will try to deepen it more. Nonetheless, for now I think that this view is not implausible. And if we shift our attention to a more practical and procedural approach, one could say that this view could have, for example, the following advantages:

1. The object of the causal investigation or of the truncation of responsibility is determined according to the legally relevant questions;
   
2. The legally relevant questions will be based on the factuality previously recognized by all participants as normatively relevant taking into account the specific problem to solve;
   
3. The legal case will arise by the form of a contrast between the normativity corresponding to the unlawful conduct and illicit outcome (invalid normativity) and the contrasted lawful conduct and outcome (valid normativity);
   
4. The curative act of the process will be done by the judge according to a pre-established legal understanding of the various solutions of the plausible causal question at issue, that is, the different versions of normativity (valid and invalid) presented by the parties or, in cases where this is possible, versions of normativity (valid and invalid) created by the judge¹²⁸ ;
   
5. The objectification of the legally relevant material can be made using any elements considered objective data or assumptions of the concrete legal problem and its proof can be done by scientific-theoretical models of reasoning or other forms of reasoning that the legal process demands;
   
6. The evidence presented and produced will be syndicated by the court in obedience to the principle of freedom of assessment, whilst the court may use, if necessary, rules of experience or inferential judgments;
   
7. The court’s decision will be based oncausality revealing a methodological distinction between«cause-in-fact» and«cause-in-law» that does not undermine the unity of the legal case and of the judicative synthesis.

1. In Civil Law and Common Law countries it is grounded a distinction between«cause-in-fact» and«cause-in-law» (or similar distinctions) and, in general, it is intended – and well taking into account procedural and judicial organization reasons – for this distinction to arise clear.
   
2. Moreover, in some cases, people seek to outweigh one or another element of this distinction: within Civil Law countries the main focus is given to the normative moment corresponding to thequestion of law , leaving the other moment virtually untouched; within Common Law countries the concerns are focused more on the factual moment corresponding to thequestion of fact , although they also devote themselves to the normative moment.
   
3. Eventually, the revealed preferences by one or other element of the distinction result from the influences suffered in those countries in terms of philosophical and legal thinking: within Civil Law countries, there is perhaps a greater influence of KANT and KELSEN’s philosophical and legal thoughts, and KELSEN did make a sharp distinction betweencausality andimputation ; within Common Law countries, there is perhaps a greater influence of HUME, BENTHAM, AUSTIN and HART’s philosophical and legal thoughts, who claim that one cannot infer anought from anis and at the same time saw normativity as afact or amatter-of-fact .
   
4. I had no opportunity and I suspect I will not have the ability to explore this historical and philosophical aspect, as I have concentrated myself on trying to understand the meaning and the extent of the distinction established between«cause-in-fact» and«cause-in-law» .
   
5. Anyway, what I meant to say here is that, although I am not against the«cause-in-fact» /«cause-in-law» distinction, I also do not take the view of considering that distinction a way to reassert the existence of unassailable compartments and especially as a dichotomy.
   
6. In particular, I have tried to draw attention to the possible advantage in replacing a paradigm that asserts itself in terms of distinction but reveals to be sealed and dichotomous, for a paradigm which underlies a holistic view ofcausality and an eventual deepening of normativity.

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I am grateful to Lothar Philipps, José de Sousa e Brito, Rainhard Bengez, Paulo de Sousa Mendes, Luís Pereira Coutinho, and audience in Florence for helpful comments and discussion. I also wish to thank João Silva Pereira for helping revising the text.

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Rui Soares Pereira
University of Lisbon, Faculty of Law, Guest Lecturer, PHD Student, Master in Juridical Sciences
E-mail:ruisoarespereira@fd.ul.pt ; rui_soares_pereira@sapo.pt

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