Responsibility Regardless of Causation

Federico L. G. FAROLDI

Responsibility Regardless of Causation

Abstract

This paper deals with the relationship between legal responsibility and causation. I argue that legal responsibility is not necessarily rooted in causation. First, I show (in §1) that there are significant and independent non-causal form of responsibility that cannot be reduced to causal responsibility; second, in §2, I show that the very notion of causality is—lato sensu—not plainly descriptive. I will suggest that even causation is tied to evaluative elements.

Causal language is pervasive in the law, especially in those areas, such as contract law, tort law and criminal law, that deal with legal responsibility for the adverse consequences of voluntary and involuntary human interactions. Yet there are widely varying theories on the nature and role of causation in the law. At one extreme, the causal minimalists claim that causation plays little or no role in attributions of legal responsibility. At the opposite extreme, the causal maximalists claim that causation is the primary or sole determinant of legal responsibility. These divergent views are rooted in different conceptions of: (1) the nature or meaning of causation, (2) the relationship between causation and attributions of legal responsibility, and (3) the basic purposes of the relevant areas of law. Much of the disagreement and confusion stems from the ambiguous usages of causal language in the law, which follow the ambiguous usages of causal language in ordinary, non-legal discourse. In both areas, causal language is sometimes used in its primary sense to refer to the content and operation of the empirical laws of nature, but at other times it is used in a more restricted normative sense to signify that one of the contributing conditions has been identified as being more important than the other conditions, in relation to some particular purpose. The relevant purpose in the law is the attribution of legal responsibility for some consequence. Thus, in legal discourse, causal language is ambiguously employed to grapple not only with the empirical issue of causal contribution but also with the normative issue of legal responsibility. The failure to use language that clearly identifies and distinguishes these two issues has generated considerable disagreement and confusion over each issue and the nature of the relationship between them. Further disagreement and confusion have been generated by the difficulty of providing useful, comprehensive criteria for the resolution of each of these issues. The most widely used criterion for the empirical issue of causal contribution is the necessary-condition (conditio sine qua non) test. This test has been subjected to considerable criticism as being over-inclusive or under-inclusive or both, and as inviting or even requiring resort to normative policy issues to resolve what supposedly is a purely empirical issue. The deficiencies of the necessary-condition test, coupled with the difficulties encountered in trying to devise a useful alternative test that does not beg the question, have led many to conclude that there is no purely empirical concept of causation, and that there is thus no more than a minimal role for causation in the attribution of legal responsibility. This causal-minimalist position has been especially attractive to the legal economists and the critical legal scholars, since it undermines the traditional conception of the law as an instrument of interactive justice, whereby everyone is required to avoid causing injury to the persons and property of others through interactions that fail to respect properly those others’ equal dignity and autonomy. The traditional conception, with its focus on individual autonomy, rights and causation, is inconsistent with the social-welfare maximizing theories of the legal economists and the anti-liberal, deconstructionist programme of the critical legal scholars. The members of each causal-minimalist group therefore argue that the concept of causation should be: (a) jettisoned entirely and replaced by direct resort to the social policy goals which they believe do or should determine the ultimate incidence and extent of legal responsibility; (b) redefined as being reducible to those social policy goals; or (c) retained as useful rhetoric that can be manipulated to achieve or camouflage the pursuit of those social policy goals.

In part 1 of this article, published in the CTLA Forum Winter 2025 at pages 18-22, 40-45, I discuss the substantial confusion regarding the required elements for tort liability caused by the Connecticut courts’ and the first and second Restatements’ lumping together the actual causation and scope of liability elements under the question-begging and misleading phrases “substantial factor,” “legal cause” and “proximate cause.” I discuss the initial rejection by the Connecticut courts of the foreseeable consequences (“harm matches the risk” = harm risked”) limitation on the scope of liability as being unstable, unjust and inconsistent with the cases and their implicit adoption, instead, of the normatively more attractive and descriptively more comprehensive “harm results from the risk” (“risk playout”) limitation. I discuss the first and second Restatements’ adoption of the harm-risked limitation as a limitation on duty and their attempt to make it more consistent with the cases by excluding significant aspects of the foreseeable risks, making several significant exceptions, and employing explanations that gut the limitation by using hindsight rather than foresight. I note that many of the comments in the first and second Restatements employ risk playout language rather than harm-risked language, without apparently being aware of the significant difference between these two formulations. I also discuss the Restatement Third’s correction of many of the defects in the first and second Restatements. It abandons use of the “substantial factor,” “proximate cause” and “legal cause” terminology and instead clearly distinguishes the “factual causation” issue from the “scope of liability” issue. It adopts (except for the deficient blackletter in section 27) the proper NESS analysis as the comprehensive test of factual causation. It adopts Andrews’ position in Palsgraf that a duty is owed to everyone to exercise reasonable care when engaging in conduct that creates foreseeable risks to others, subject to categorical principle-or-policy-based limits in specific types of situations. It adopts the risk-playout limitation on the scope of liability in place of the previously adopted harm-risked limitation on duty, although it also does not seem to recognize the significant difference between the two limitations. It properly recognizes, as distinct limitations on the scope of liability, the “no worse off” and “trivial contribution” limitations. In part 2, forthcoming in the Spring 2025 CTLA Forum, I discuss the arguments in all three Restatements, which are implemented in the Third Restatement, that the superseding cause limitation can and should be absorbed and replaced by the harm-risked limitation, despite the courts’ continued regular use of the former limitation and the Third Restatement’s having replaced the latter limitation with the risk playout limitation. The Restatements fail to note the significant differences in the proper formulation and application of each limitation. The Restatement Third argues that the primary/sole rationale for the superseding cause limitation was mitigation of the inequitable allocation of liability among multiple responsible parties, which supposedly is no longer a concern given the modern practice of using comparative responsibility principles to allocate liability between plaintiffs and defendants and among defendants. Both parts of this argument are defective. First, the superseding cause limitation has never been based on a concern about inequitable apportionment of liability among multiple responsible parties in the absence of modern apportionment rules, but rather a concern that a defendant should not be deemed responsible at all for a harm that occurred only because of some highly unexpected or extraordinary conduct or event for which it would not be just to hold her responsible. Second, elimination of the superseding cause limitation would not change existing apportionment rules, none of which provide for comprehensive pure comparative responsibility and most of which would continue, in the absence of the superseding cause limitation, to impose substantial and even full legal responsibility on an actor for a harm that would not have occurred if not for the intervention of some highly unexpected or extraordinary conduct or event for which he should not justly be held responsible.

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