Foreseeing Harm Opaquely

Abstract

Corrective-justice theorists of tort and retributive-justice theorists of the criminal law have good reason to reject the foreseeability criterion of proximate causation on normative grounds. For these theories demand that legal liability track moral responsibility, and moral responsibility for causing a harm requires causation of that harm in some ordinary sense, not in the artificial sense created by the foreseeability theory of proximate causation. To this normative objection to foreseeability this chapter adds a conceptual objection: the multiple-description problem shows the foreseeability conception of proximate causation to be incoherent. If we take what is (un)foreseeable to be particular events, then (so long as we refuse a transparent reading of what ‘foreseeability’ means) the multiple-description problem reveals the concept to be nonsense in light of our firmly entrenched, Leibnizian ideas of identity. If, more plausibly, we take what is (un)foreseeable to be either types of events, or facts about events, no violation of the laws of identity need take place, but the concept is still completely indeterminate in its implications for particular cases. That indeterminacy could be reduced by legal, conventional, or moral typologies of harms, but such typologies either do not exist or, if they do, do not decide proximate cause issues in a way that is at all intuitive, even to friends of foreseeability.