Causality as a Characteristic of Criminal Law (Karl Engisch's Die Kausalität als Merkmal der strafrechtlichen Tatbestände)

16 Pages Posted: 19 Jun 2020

See all articles by Richard W. Wright

Richard W. Wright

Chicago-Kent College of Law - Illinois Institute of Technology

Date Written: May 9, 2020

Abstract

This work by Karl Engisch was, as far as I am aware, the first to reject the traditional but-for / sine-qua-non test as the exclusive test of factual causation, or even as a proper test when employed, as usually assumed, through hypothetical analysis of what might otherwise have occurred rather than real world analysis of what actually occurred. Engisch demonstrated the defects of the but-for / sine-qua-non test in duplicative and preemptive over-determined causation situations and the proper employment, instead, of a "covering law" analysis, according to which actual facts are tested for their causal status in singular instances through subsumption under the laws of nature to reach the correct answers. This work is a landmark in the German legal literature and likely had a significant impact on Hart and Honoré's later landmark book, Causation in the Law. Honoré, at least, likely read all of it. This is a translation only of Part II, The Condition Theory. The translation was initially done using Google Translate, which works quite well as an initial translation if one eliminates the carriage returns at the end of each few words in the box containing the text to be translated, but the resulting text sometimes needed to be revised based on personal knowledge. I welcome advice regarding any significant errors in translation.,

Keywords: Engisch, Hart and Honoré, Causation, Factual Causation, Over-determined Causation, Preemptive Causation, Duplicative Causation, Hypothetical Causal Reasoning

Suggested Citation

Wright, Richard W., Causality as a Characteristic of Criminal Law (Karl Engisch's Die Kausalität als Merkmal der strafrechtlichen Tatbestände) (May 9, 2020). Available at SSRN: https://ssrn.com/abstract=3597001 or http://dx.doi.org/10.2139/ssrn.3597001

Richard W. Wright (Contact Author)

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