But for Test Criminal Law

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Starting with general tests based on strategies for immediate causes, the first of these is what we can call „ad hoc strategy tests“. The idea is that the courts will in each case weigh a set of policies that they will decide whether it has been determined that a defendant has actually caused harm prohibited by law. They can reconcile certain „social interests,“ such as the need for deterrence, with certain „individual interests,“ such as the injustice of surprising an accused with responsibility (Edgerton 1924). The courts then decide where such a balance leads. Whatever decision is made on a case-by-case basis on such a balancing of policy, it is then made for „immediate“ or „legal“ reasons. Such labels are only the conclusions of a political balance; labels have nothing to do with causality in the ordinary or scientific sense (Green 1929). The one we`ve already seen in the fourth variant of the counterfactual test for the cause actually. If one does not ask whether the defendant`s action was necessary for the occurrence of the damage – if one asks rather and more differentiatedly whether the aspect of her act that rendered her negligent or otherwise guilty caused the damage – then we have a causal test that is almost as discriminatory as the simple counterfactual test combined with a version of the Prox case (Keeton 1963; Wright, 1985b). This is not surprising, since both criteria declare inadmissible all aspects of the defendant`s act of which he is not guilty.

From the point of view of aspect and causality, those aspects of the defendant`s actions that are not relevant to guilt are not (relevant) the cause of the damage; For the purposes of assessing harm in risk, these culpable aspects of the defendant`s actions do not correspond to the defendant`s guilty state of mind. Whether it is called causality (aspect-cause view) or guilt (the view of harm at risk), the discriminatory power is about the same. Problems with conventional legal analysis of causality—in the sense of bifurcation in fact and immediate causality—have led some legal theorists to abandon the fork of causality in law and seek a unified concept of causality that is far more discriminatory (in what it allows as a cause) than the desperately promiscuous counterfactual cause test of conventional analysis. In fact, one is looking for a unified concept of causality that is so discriminatory that it can do the work done in conventional analysis by both the doctrine of cause in fact and immediate cause. It is far from clear that causality is indeed a sufficiently discriminatory link that it can do so much work in assigning responsibilities. Nevertheless, there are three such proposals in the legal literature, each with some doctrinal support in the law. The only way for the predictability test to avoid redundancy is to turn to the other alternative, the risk damage test. That is, the law could have said that in situations where the defendant was guiltily involved with the intention of inappropriately anticipating or risking type H harm, but what actually caused his act was a case of type J damage, one should consider whether J was foreseeable, a different question than the one that was asked and answered.

as a question of mens rea (which concerned H). Of course, H J must be „close“ for there to be a guilty mind with regard to the harm for which responsibility is sought. However, this is the work of the risk damage test, which aims to solve what should be called the „adjustment problem“ of the mens rea (adjustment of actual damage caused, J, to planned, predicted or risky damage, H; Moore, 2011a). Moreover, it is doing such a job badly. Foreseeability is not the right issue for attributing the damage actually caused by a defendant to the nature of the damage for which he was guilty (either because he intended or anticipated that he would cause such damage, or because he was unreasonably likely to cause such damage). If, in order to avoid redundancies, the predictability check is to be limited to this non-redundant work, it would be preferable to abandon it for a risk damage assessment. It is easy to think that a defendant is liable only because of his behavior and the harm suffered. It is important to note that there must be real causality and legal causality. To prove true causality, the „but for“ test must be passed. The „no for“ criterion is used to ask the question, „Would Y have occurred without the existence of X?“ With regard to bodily injury, the question therefore arises: the substance factor test is important in cases of toxic injuries. For example, if a defendant works in a factory and develops cancer, they could claim that the cancer is due to asbestos poisoning. The owner of the defendant plant is likely to wonder whether the asbestos in the plant was a major factor in the development of cancer, or whether other factors played a much larger role.

Those who accept the conventional division of causality in the law into two parts then postulate a very minimalist idea of the first requirement, that of the „cause in fact“. This minimalist requirement is by far the predominant explicit test for the case, both in fact and in criminal law. This is the criterion of the sine qua non or „but for“ condition. Such a test raises a counterfactual question: „Would the victim have suffered such harm without the defendant`s act?“ This test is also sometimes referred to as the necessary condition test because it requires that the defendant`s action was necessary to the detriment of the victim. The attractiveness of this criterion stems from this fact. The test seems to isolate something that is close to our hearts, both to explain the events and to assess the responsibility of the accused, namely whether the act of the accused made a difference, what would the world have looked like if it had not done what it did? To the extent that we increase the moral capacity for guilt and the legal punishment of actors who cause bad results (and not just try), we should apparently worry about whether some bad outcome would have occurred anyway without the accused. The alleged predominance of the sine qua non condition in the law is superficial. The reality is that this criterion is modified/abandoned in various ways by the courts that supposedly use it. The best way to understand the different cause tests modified in the law is to look at the issues raised for the counterfactual test, because it is these issues that actually motivate other cause tests.

Random objection to the counterfactual test results in a fourth modification of that test. In cases such as the negligently accelerating train, which, because of its speed, arrives exactly where a falling tree hits it (Berry v. Borough of Sugar Notch), one should not ask, „But would the train have been hit for the act of driving?“ Rather, one must isolate the aspect of the action that made it negligent – the speed, not the action itself – and ask whether this aspect was necessary for the train to be affected. And probably driving above the speed limit („speeding“) was not necessary for the impact, as any speed above and below the speed limit would have had no effect on the train. In other words, it was not necessary to exceed the speed, but only the exact speed at which the driver was actually driving. The question of the need for qualities of actions such as speeding is called the „cause of appearance“ version of the counterfactual test (Keeton 1963; Wright, 1985b). First, consider the arena from which the test takes its name, which comes from crimes or crimes of risk creation.

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