Attribution, Legal Causation and Preventive Effects on Causal Imputation from a Psychological Perspective and its Possible Consequences for the Preventive Effects of Tort Law

Abstract

The aim of this paper is to describe how private law rules on causal imputation fit the actual conduct of people, given the existence of attribution as a psychological phenomenon. Which behavioural presumptions are hidden behind the rules on causation in our civil codes and case law and does the image stemming thereof correspond with what psychologists have concluded regarding causal relationships? If not, is it possible to align these concepts? The conclusion is that both concepts cannot be made compliant easily. Accordingly, when examining causation issues we should take account of the lessons from psychology, most notably attribution theory. In addition to a number of specific suggestions for improvements, I conclude that, generally speaking, thinking harder and longer about legal causation issues will usually lead to better answers, which implies that decionion maker should be allowed time and space to reach a decision. A more general lesson is that (some of) the supposed preventive effects of tort law appear to be unachievable because imputation mechanisms (which lead to people making external imputations for some events) stand in the way.

Keywords: Attribution, Legal Causation, Preventive Effects

JEL Classification: K13, K41