Probabilistic Causation in the Law

Journal of Institutional and Theoretical Economics, Vol. 176, pp.4-17 (March 2020)

Virginia Public Law and Legal Theory Research Paper No. 2020-43

Virginia Law and Economics Research Paper No. 2020-07

24 Pages Posted: 13 May 2020

See all articles by Frederick Schauer

Frederick Schauer

University of Virginia School of Law

Barbara A. Spellman

University of Virginia School of Law

Date Written: March 1, 2020

Abstract

This paper challenges the widespread view that the legal system’s conception of causation is largely deterministic and token-level, that view stemming from the law’s principal focus on assigning ex post responsibility for past acts. We argue, in opposition to this view, that the probabilistic, ex ante, and type-level conceptions of causation that dominate the social sciences have a larger place in the legal system than is often recognized. Not only does the legal system frequently and appropriately use probabilistic conceptions of causation when engaged in ex ante rule generation (as opposed to rule application), but probabilistic conceptions of causation also play a substantial role even in the ex post application of legal rules.

Keywords: causation, causality, probabilistic causativo, deterministic causation, legal rules

Suggested Citation

Schauer, Frederick and Spellman, Barbara A., Probabilistic Causation in the Law (March 1, 2020). Journal of Institutional and Theoretical Economics, Vol. 176, pp.4-17 (March 2020), Virginia Public Law and Legal Theory Research Paper No. 2020-43, Virginia Law and Economics Research Paper No. 2020-07, Available at SSRN: https://ssrn.com/abstract=3599418

Frederick Schauer (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-6777 (Phone)

Barbara A. Spellman

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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