Again Cause in Fact

There is a dispute among criminal law theorists of particularly theoretical bent as to whether a reasonably rigorous and intuitively sound definition can be given of “cause in fact.”  I here argue the negative.

 

Determining the cause in fact of a prohibited harm is supposed to be the objective, scientific phase of determining whether the defendant is legally responsible for harm. If the defendant’s actions are found to be the cause in fact, then legal norms are applied to determine whether the defendant is the “legal cause” or “proximate cause” of the harm, or whether, as the latter phrase suggests the causal chain is too extended, too accidental, or is outweighed by other causal factors, and so it would be unjust to hold the person criminally liable.  (Many persons who have written on this subject would have this last phrase as “hold the person legally liable.” I am with those who believe, however, that the causal conditions for tort liability and for criminal liability ought sometimes differ.)

I suggested in “A Retributive Theory of Criminal Causation” (“Retributive Causation”) that jurisprudes had an insufficiently sophisticated understanding of the difficulties of the notion of “scientific cause,” and, in consequence, thought that there must be some reasonably straightforward way to rescue cause in fact from the immediate difficulties of its traditional “but for” formulation

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Despite this I went on to endorse, more or less, the Hart & Honore (Causation in the Law,1985) contention that the distinction between cause in fact and legal cause was a great advance in analytic jurisprudence. I also offered, without really endorsing, an improved definition of “cause in fact.” I should have been more cautious.

 

There is not now and never will be any even modestly rigorous definition of “cause in fact” immune to intuitively decisive counterexamples – decisive, at least, unless one is willing to cleave to one’s favorite definition by disowning strong and widely held judgments rooted in concerns about justice and responsibility. I so believe because I am confident that there is no value free or purpose independent concept of scientific causation that will be useful across the board for first stage winnowing of causes for legal purposes.

Put in a way that may be a little too abstract to be readily understood at this point, the only concept of causation, even in science, that is not structured by purposes is that grand hypothesis that there are laws of nature governing the distribution of the furniture of reality as it moves from one world state to another later world state. Other concepts of causation, even the most austerely scientific, are linked in one way or another to our concerns to explain or control. 

  

The problem of laws of nature causation for human responsibility for harms is that by the laws of nature, very crudely put, everything causes everything. The laws apply to complete states of the world and deliver at a later time complete states of the world. It is not even a beginning move towards the question whether Joe was responsible for Jobe’s death to say that Joe’s action, among other conditions, led by the laws of nature to Jobe dying as he did when he did. The problem is that a vast number of events far and wide in the history of the universe bear exactly this relation to Jobe’s death. It is not much consolation that we can exclude anything outside the past light cone of Jobe’s demise. We might still find included that butterfly in Brazil and Caesar at the Rubicon. 

It is obvious, of course, that science applies laws of nature analysis all the time in a sub-global way. It tells us what will happen in an isolated system, where Caesars, butterflies, and many other features of our messy reality are assumed away. Causation in these thought experiments is as objective as can be, a matter of nature’s own laws. Moreover, scientists do draw upon what they know about causation in isolated systems to explain real world phenomena. Even such mundane matters as the deadliness of a poison, and hence the explanation of the death of the unfaithful spouse, will make use of idealizations and simplifying assumptions about the particulars of the chemistry of the tea and the physiology of the spouse. 

It is when we get to that level – when the scientist extrapolates from the laws of nature as they would act in an isolated system to what happened in a particular real world situation – that values and purposes enter in. The chemist knows that the medical examiner is looking for an explanation of the death that will or will not fix responsibility on a particular person. Her understanding of the sort of explanation sought will affect just what the scientific expert witness chooses to isolate out in giving her causal explanation. Often these purpose relative choices are uncontroversial. This leads to the happy circumstance that in the great majority of standard cases those who know the facts will agree upon whether the suspect’s action was a cause in fact of the prohibited harm. It all then seems perfectly objective and scientific. 

Because, however, there is always the explanatory purpose component of any causal account of real world phenomena (that is, in any account more discriminating than “almost every big event and many little events in the past light cone”), strict value-free objectivity is unattainable and undesirable. By observing where subtly different purposes would lead explanation in different directions, it will always be possible to find counterexamples to any definition of cause in fact that is both helpful and rigorous.

Let us suppose that there are two independent malefactors, named A and B, by happy chance, both of whom want to kill V. A’s plan is to stab V in the heart. B’s is to tell a really funny joke, leading V to laugh himself to death. Invited by V to tea, both A and B, quite independently put their plans into action.  I will not here repeat B’s joke, not having blogger insurance to cover my potential liability. It was, however very, very funny, and V laughed uncontrollably. Seizing upon V’s state, A extracted her up- the-sleeve stiletto and plunged it into V’s heart.

Now, I take it that an acceptable formulation of cause in fact is going to pass A along to the next stage, the proximate cause examination, while sending B home early. Although B carried out his plan and V died, B’s plan does not, intuitively have the right relation to the death. (We send him home, rather than charging him with attempted murder, relying upon the “voodoo doll” or “just too far out” exception of criminal attempt doctrine –despite his having done everything, in his sincere belief, necessary to kill. If B had some (HIPAA violation!) special knowledge of a heart condition in V predisposing him to sudden death upon extreme mirth, then we might not send him home so fast.)

We would not want to count B’s joke as a cause in fact even after A’s statement to the police that she would not have had the nerve to try to stab V had V not been reduced to momentary helplessness by B’s joke. Yes, of course, that was an essential part of the causal chain, no less essential than the stiletto thrust it occasioned, but, as we all would say, it was a “mere condition,” rather than a cause. Perhaps we could make good this intuition, with some approach to rigor, by citing some such consideration as that there are “more” possible worlds in which A would have stabbed V without B’s joke than there are possible worlds in which V would have died laughing and A’s stiletto remained sleeved. 

Of course, we know that the possible worlds cannot really be counted. So we might try to improve on this by saying that the died-stabbed-but-not-laughing possible worlds are “nearer” to the actual world than are the died-laughing-but-not-stabbed worlds. The measurement of the closeness of possible worlds is not, however, one governed by generally approved laboratory standards. We may reasonably suspect that its metric will be affected by our general (and not value neutral) conceptual scheme, including the values and purposes of our criminal responsibility framework.

One of the strategies for separating criminal causes from mere conditions is to zero in more closely on the exact time and the particular physiological circumstances of the harm. This often helps. Had B told his joke ten minutes earlier before A even arrived, giving V plenty of time to recover from his mirthfulness, it would be easy to say that V’s having died after hearing B’s joke was a mere condition. In the facts of our hypothetical, however, this strategy will not work. V might, indeed, well have died slightly earlier because he was laughing so hard. His heart rate and blood pressure were higher, which so far as I know might slightly accelerate the bad effects of a stiletto through the heart.

Of course V really died only very slightly earlier. The joke was not at all a “big” part of the cause of death. The medical examiner would ignore it in giving her report, and that is just what she should do. She should not do so because there is any objective scientific test of “quantitatively significant enough contribution to the cause” or “too small a time interval,” but because she knows what the legal system in fixing criminal responsibility wants from a medical examiner.

She is, in fact, using the sort of considerations that are supposed to be the home of “proximate cause” – not too extended a causal chain, not too accidental, not too small a contribution. The distinction between cause in fact and proximate cause is not one of principle, and we should be unsurprised that decisive counterexamples have turned up to every even semi-rigorous formulation of cause in fact intended to separate it from legal cause. 

Let me emphasize that this is not a reason to abjure getting the “scientific facts” straight and early. Knowing the general causal lay of the land is always a good first step, and often it will uncontroversially rule out the Bs among potential suspects while keeping hold of the As. My only claim is that there is no difference at the theoretical level between cause in fact and proximate cause. Not only is the “but for” definition of cause in fact fundamentally defective, but any formulation that purports to be purely scientific and objective will be defective as well if it purports to do any real winnowing.