God's Dice: The Law in a Probabilistic World

Abstract

Despite the findings of natural scientists and philosophers, the law is still clinging on a deterministic concept of causation. Probabilistic considerations are not alien to the legal world, yet they are generally regarded as ad hoc exceptions to handle particularly complex cases. From this perspective, the need for a theoretical shift is advocated. Probabilistic causation should become the norm, whereas deterministic causation should only be used as a heuristic tool when confronted with prima facie deterministic cases. A distinction is drawn between the ex-ante and the ex-post probabilistic approach to causation. The former seems to be a better approach for lagged torts, whereas the latter is more appropriate to handle instant torts.