a1 Department of History and Philosophy of Science, University of Cambridge
This paper takes it as a premise that a distinction between matters of fact and of law is important in the causal inquiry. But it argues that separating factual and legal causation as different elements of liability is not the best way to implement the fact/law distinction. What counts as a cause-in-fact is partly a legal question; and certain liability-limiting doctrines under the umbrella of “legal causation” depend on the application of factual-causal concepts. The contrastive account of factual causation proposed in this paper improves matters. This account more clearly distinguishes matters of fact from matters of law within the cause-in-fact inquiry. It also extends the scope of cause-in-fact to answer some questions currently answered by certain doctrines of legal causation—doctrines that, it is argued, are more naturally seen as applications of our ordinary causal concept than as noncausal liability-limiting devices.
* I am grateful to Roderick Bagshaw, John Clifford, Vanessa Heggie, Matthew Kramer, Amit Pundik, Nicky Reeves, Jane Stapleton, an anonymous referee, and especially Jonathan Schaffer for their help. I am also grateful to audiences at the Hughes Hall Centre for Biomedical Science in Society, the Edinburgh Legal Theory Research Group, and the Edinburgh Festival for Legal Theory. I am grateful to the PHG Foundation for supporting part of this research.