THE «BUT FOR» APORIA

Author
, PhD in Law, Associate professor, Kharkiv, Pushinska, 77

In heading

 Law;

Signed print

 20.11.2020

Issues number

 2020 - № 4 (43)

Page

 118-131

Type of articles

 Scientific article

Code UDK

 347.51

ISSN print

 2411-5584

Abstract

 Under the dominant view the but-for test is a workable tool for deciding on causation in most of the tort cases (except for the cases of overdetermination and uncertain causation). Though, in a thought-provoking note «Rethinking Actual Causation in Tort Law» an anonymous author propounds an intriguing chain of thoughts which we dare to call an aporia: the author applies the but-for test to a hypothetical case in what seems a perfectly logical way but the nonsense result is obtained. This result is deemed as an evidence of the but-for test deficiency. However, we believe, the aporia being scrutinized from the standpoint of formal logic proves it is all not that bad with the but-for test.
The key to resolving the aporia is the acknowledgement that causation is an ontological phenomenon, while the but-for test is logical phenomenon. The but-for test if of linguistic nature, it is in fact a question sentence «Would q have happened, but for p?». This question implies that a cause is a factor which is necessary for the result. Further, pursuit for clarification of the necessity concept leads to the classical logic theory which contrasts necessary condition with sufficient condition and explains both via the implication binary operator. However, implication, which is usually worded as if-clause, in fact does not convey all the different meanings if-clause has in natural language. If-clause sometimes designates the reason why (things are the way they are) and sometimes the reason to think (things are the way they are). Confusion of these two meanings can entail paradoxical inferences. Secondly, classical logic deals with statements, i. e. linguistical structures, that can be either «true» or «false». The factor of time is disregarded: a statement cannot be «false today» and «true tomorrow». So, if the statement pertains to some event in the real time and space, we will be able to assess whether it is true or false only after the said event will have or will not have happened in the particular time and space. But from the perspective of classic logic all the events mentioned in statements are seen as though they pertain to the past (because only in this case the statements about them can be assessed as either true or false). And that is the second reason for paradoxical inferences produced by the but-for test. Fortunately, this type inferences hardly afflict judicial practice since they can easily be dismissed by setting a cutout rule: the but-for test is applied only to factors that precede the consequence.
Short Abstract for an article
Аbstract. The article is devoted to the analysis of the but-for test, which is used in tort law to establish the existence of a causal link between the actions of the defendant and the damage suffered by the plaintiff. The author scrutinizes the conceptual analytical suitability of the test by applying the methods of formal logic. The author substantiates the opinion that the but-for test is an effective analytical technique that adequately determines causality in the vast majority of cases.

Keywords

 causation; necessary condition; sufficient condition; tort law; but-for test.

Reviewer

External reviewer

Article in PDF

 118-131

Bibliography

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Code DOI

 10.31359/2411‑5584‑2020‑43‑4‑118

20.11.2020