A critical look at determinate theories of causation in law
University of British Columbia
Master of Laws - LLM
My thesis critiques three determinate theories of causation in law: (1) the neutrality of Richard Wright's test for “causes-in-fact”; (2) the use of “abnormality” to distinguish causes from mere conditions in Hart and Honoré's (“H&H”) theory of proximate causation; and, (3) the substitution of “proximate causation” with an efficiency calculus in the Law and Economic literature. The first chapter argues that the way a causation question is formulated will largely determine the “facts” we receive from “necessity” or “sufficiency” tests for causation-in-fact. In the second chapter of my thesis I explore the concept of “normality” in H&H’s theory of proximate causation in Causation in the Law. I explore how H&H’s “normality” implies “normalization”, serves as a standard of conduct and affects substantive outcomes. The third chapter offers a case study for the second. It argues that Canadian courts tacitly weigh risks against rewards when constructing the meaning of the term “accident” in coverage decisions. This demonstrates how courts make policy choices when ostensibly applying an "empirical" standard of proximate cause. The fourth chapter considers the substitution of efficiency for proximate causation in the Law and Economics literature. It argues that efficiency cannot be reduced to a matter of empirical fact.
Attribution-NonCommercial-NoDerivatives 4.0 International
Law, Faculty of