So let`s look at this fourth policy-based test for immediate cause, the test mistakenly called „harm at risk.” Like the predictability test, this test claims to be a test of legal cause that is universally applicable to all tort and criminal cases. Again, this criterion is politically justified and does not claim to have anything to do with factual or scientific causality. In terms of teaching, however, the test is different from a simple predictability test. The skepticism of American legal realism had two intellectual descendants in legal theory. One of them consists of self-proclaimed „critical” theorists – the Critical Legal Studies (or „Crits”) movement, whose heyday was in America in the 1970s and 1980s. Much of the skepticism of this movement is simply a warmed-up postmodernism that is a temporary fad even in many disciplines other than law (Moore 1989). Intellectually more interesting were the criticisms that were not based on postmodern platitudes, but specific to causality. Between these two types of cases of overdetermination are the so-called cases of asymmetric overdetermination (Moore 2009a: 417-18). Suppose one accused stabs the victim non-fatally, while another defendant fatally stabs the same victim; The victim dies of blood loss, with most of the blood gushing from the fatal wound. Did the non-fatally injured accused cause the death of the victim? Not according to the counterfactual analysis: given the sufficiency of the mortal, the non-fatal injury was not necessary for death and was therefore not a cause of death. This conclusion contradicts general intuition as well as considerable (but not universal) legal authority (People v. Lewis).
Causality is the „causal relationship between the defendant`s conduct and the final result.” In other words, causality provides a way to link behavior to a resulting effect, usually injury. In criminal law, it is defined as actus reus (an act whose specific injury or other effect has emerged, and is combined with mens rea (a state of mind) to encompass elements of guilt. Causality only applies if a result has been achieved and is therefore not relevant to individual infringements. The basic principle of taxonomization here is to separate tests that do not consider immediate causality as something that has to do with actual causal relationships (the conventional view in legal theory) from tests motivated by opposite thinking. We will start with the first type of test, which should be called strategy-based testing for immediate causes. The policy-based tests in the immediate vicinity are themselves judiciously divided into two camps. Some – the general policy tests – are justified by the fact that they serve a wide range of guidelines, in fact as broad as the guidelines that justify liability in tort or criminal matters in the first place. On the other hand, other tests are at the service of only one policy: to measure the guilt of the actor in relation to the mental state he had or should have had during his actions. A second unified view of causality in law is the oldest of these types of propositions. She understands causality as a metaphysical primitive. Causality is not reducible to any other type of thing or thing, so there is little analysis that can be said about it, and so little that juries should be informed (Smith 1911). The only thing we can say is that the causal relationship is a scalar relationship, that is, a matter of degree.
One thing may be the cause of a particular event rather than another. Given the scalarity of causality, the law only has to draw the line of responsibility somewhere on the scale that characterizes the degree of causal contribution. For things that differ in a smooth continuum, it is notoriously arbitrary to choose an exact stopping point; Where is the line between the Middle Ages and old age, red and pink, bald and not bald or caused and not caused? This approach therefore takes a reasonably vague line, below which the causal contribution to a particular harm is ignored for the purposes of assessing liability. The defendant is liable for particular damage only if the degree of its causal contribution to that damage has reached a certain non-minimus or „significant” magnitude. This is the original „substantial factor” test as articulated by Jeremiah Smith in 1911. To the general objection that the test tells us little, its defenders respond that it is a virtue and not a vice, because there is little to say about causality. Like hardcore pornography, causality is something we can „know when we see it” (Potter Stewart`s language about pornography in Jacobellis v. Ohio) without the need for general definitions and tests (Borgo 1979).
The general and positive recipe that is supposed to result from the skepticism of legal realists and critics is not so clear.