Causation - Role Of Causation In The Criminal Law, Conventional Analysis Of Causation In The Law, Problems With The Conventional Analysis
MICHAEL S. MOORE
MICHAEL S. MOORE
The place of causation in criminal law doctrines. The part of the substantive criminal law commonly called the "special part" consists of several thousand prohibitions and requirements. Criminal codes typically prohibit citizens from doing certain types of action and sometimes (but much less frequently) require citizens to do certain types of actions. Causation enters into both the p…
The two-step analysis. The conventional wisdom about the causation requirement in both criminal law and torts is that it in reality consists of two very different requirements. The first requirement is that of "cause-in-fact." This is said to be the true causal requirement because this doctrine adopts the scientific notion of causation. Whether cigarette smoking causes cancer, whe…
Problems with the counterfactual test. Very generally there are four sorts of problems with the counterfactual test for causation in fact. One set of these problems has to do with proof and evidence. As an element of the prima facie case, causation-in-fact must be proven by the prosecution beyond a reasonable doubt. Yet counterfactuals by their nature are difficult to prove with that degree of cer…
The problems with the conventional analysis of causation have tempted many to abandon the conventional analysis, root and branch. This generates a search for a unitary notion of causation that is much more discriminating (in what it allows as a cause) than the hopelessly promiscuous counterfactual cause-in-fact test of the conventional analysis. Indeed, the search is for a unitary concept of causa…
American Law Institute. Model Penal Code: Proposed Official Draft. Philadelphia: American Law Institute, 1962. ——. Model Penal Code and Commentaries. Philadelphia: American Law Institute, 1985. ——. Basic Concepts of Criminal Law. Oxford, U.K.: Oxford University Press, 1998. ——. Placing Blame: A General Theory of the Criminal Law. Oxford, U.K.: Oxford Unive…
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