The Result and Its Causal Explanation in Criminal Law

Abstract

This is the English translation by I. Puppe and F. Wenzel of Puppe's paper, Der Erfolg und seine kausale Erklarung im Strafrecht, originally published in 1980 at 92 ZStW 863-911. See also M.D. Lerman & M.A. Sancinetti (trans.), 'El resultado y su explicacion causal en Derecho penal', InDret 4/2008, and Sancinetti (ed. & trans.), Causalidad, riesgo e imputacion, Buenos Aires, 2009, p. 245-298. The paper discusses the concept of causation and its application in criminal law. It criticizes the strong necessity (sine qua non, 'but for') criterion and the various attempts to modify that criterion to handle properly cases involving causal over-determination. Rejecting counterfactual analyses of causation and referencing prior work by Karl Engisch and Hempel and Oppenheim's deductive-nomological theory of causal explanations in the philosophy of science, it argues instead for a weak necessity, minimal sufficient set, covering law criterion. It notes the importance of focusing causal analysis on the wrongful aspect of the defendant's conduct and the legally relevant aspects of the result, consisting of a change of the given affairs which is disadvantageous for the legally protected interests, insists on the inclusion of omissions and other negative conditions as causes, and discusses the proper resolution of cases involving over-determination by multiple negative conditions.