Causation and corrective justice: Does tort law make sense?

Abstract

The fact that a particular defendant's conduct was a "but for" cause of an injury to a particular plaintiff, which fact is a necessary condition for the plaintiff's recovering corrective damages from the defendant, is the fundamental building block of all tort law. Regardless of what other conditions, if any, tort law imposes as necessary for plaintiff's recovering from the defendant - proximate causation, foreseeability, negligence or recklessness or intent, design defect - a "but for" causal link between the plaintiff's injury and the defendant's conduct is essential. No causation, no tort. In this essay, I intend to examine the relevance of "but for" causation - that is, the relevance of tort law - to any of the proper normative concerns of the legal system. In part this examination is prompted by some recent cases, such as the Sindell 1 case, in which plaintiff's recovery is based upon a relation to the defendant's(s') conduct other than proof that the latter was a "but for" cause of plaintiff's injury. But this examination of the role of causation in compensation for injury is also prompted by a more thoroughgoing puzzlement over why the law looks backward in dealing with claims to compensation. I shall conclude that the case for "but for" causation cannot rest on the existence of something called "corrective justice" to which it is central and which within its domain "trumps" both retributive and distributive justice concerns. Moreover, I conclude that neither 1 Sindell v. Abbott Laboratories, 26 Cal. 3d 588; 607 E 2d 924; 163 Cal. Rptr. 132, cert. denied, 449 U.S. 912 (1980). Sindell has provoked some philosophical discussion of the relation between causation and liability. See Thomson, 'Remarks on Causation and Liability', Philosophy & Public Affairs 13 (1984): 101; Fischer & Ennis, 'Causation and Liability', Philosophy & Public Affairs 15 (1986): 33; Kagan, 'Causation, Liability, and Internalism', Philosophy & Public Affairs 15 (1986): 41; Thomson, 'A Note on Internalism', Philosophy & Public Affairs 15 (1986): 60; The Sindell case is described in note 27.