Probabilistic Causation in the Law

Frederick Schauer and Barbara A. Spellman

Journal of Institutional and Theoretical Economics (JITE), 2020, vol. 176, issue 1, 4-17

Abstract: This paper challenges the view that the legal system's conception of causationis largely deterministic and token-level because of law's focus on assigning ex post responsibility for past acts. We argue, in opposition, that the probabilistic, ex ante, and type-level conceptions of causation that dominate the social sciences have a larger place in the legal system than is often recognized. Not only does the law frequently use probabilistic conceptions of causation for ex ante rule generation (as opposed to rule application), but probabilistic conceptions also play a substantial role even in the ex post application of legal rules.

Keywords: causation; causality; probabilistic causation; deterministic causation; legal rules (search for similar items in EconPapers)
JEL-codes: K10 K13 K49 (search for similar items in EconPapers)
Date: 2020
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DOI: 10.1628/jite-2020-0003

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