Common-Sense Causation in the Law

Abstract

Judges often invoke ‘common sense’ when deciding questions of legal causation. I draw on empirical evidence to refine the common-sense theory of legal causation developed by Hart and Honore in Causation in the Law. I show that the two main common-sense principles that Hart and Honore identified are empirically well founded; I also show how experimental research into causal selection can be used to specify these principles with greater precision than before. This exploratory approach can provide legal scholars with a plausible new set of hypotheses to use in re-examining the decided cases on legal causation. If correct, the new common-sense theory that I develop has important implications not only for debates within legal scholarship, but also for judicial practice on issues of legal causation across both criminal and private law.