Making Causal Counterfactuals More Singular, and More Appropriate for Use in Law

Unlike any other monograph on legal liability, Michael S. Moore’s book Causation and Responsibility contains a well-informed and in-depth discussion of the metaphysics of causation. Moore does not share the widespread view that legal scholars should not enter into metaphysical debates about causation.1 He shows respect for the subtleties of philosophical debates on causal relata, identity conditions for events, the ontological distinctions between events, states of affairs, facts and tropes, and the counterfactual analysis of event causation, and he considers all these issues relevant to law. Part V of the book deals with the metaphysics of causal relata. In the final analysis, Moore opts for fine-grained states of affairs as the “true” relata of the causal relation, while he concedes that legal liability should rather turn on coarse-grained Davidsonian events. In Part VI, Moore discusses the major philosophical theories of causation, including Humean regularity theories, nomic theories, probabilistic theories and various singularist and primitivist theories. Most attention is paid to David Lewis’ influential counterfactual theory. Moore argues that the counterfactual theory founders for several reasons (Ch. 17). He argues, however, that counterfactual dependency is rightly regarded as a “desert determiner” both for moral responsibility and for legal liability, although it is neither a necessary nor a sufficient condition for causation (Ch. 18).2 In cases of omissions, for example, the negligent person is often held responsible, both morally and legally, although omissions resist an event-causal analysis. Moore himself favours a singularist account while being non-committal about which