Causation in Light of its Current Intradogmatic Projections (I) Cover Image
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Raportul de cauzalitate în lumina actualelor sale proiectii intradogmatice (I)
Causation in Light of its Current Intradogmatic Projections (I)

Author(s): Ioana Curt
Subject(s): Law, Constitution, Jurisprudence
Published by: Universul Juridic
Keywords: causation; equivalence theory; alternative causation; cumulative causation; hypothetical causes; adequate causation theory; relevant cause theory; objective ascription; permissible risk; creation of a legally relevant danger; risk diminishment

Summary/Abstract: The present study has set its aim to surpass the Romanian doctrine’s standstill regarding causation, especially by analyzing the manner in which other legal systems have established it. The article explores the conception of causation, which is fundamental to ascribing moral and legal responsibility for events. One should, however, consider that causation, in terms of its criminal law meaning, has to be distinguished from its philosophical roots. A person cannot be held liable for any event unless he or she did cause it and, we should add immediately, cause it in the legal sense. In the first part of this article the author discusses different aspects regarding causation’s place within the topographic scheme of criminal offences. In addition to the act or omission committed by the agent, specific consequences provided by the criminal law norm must take place. Therefore, the causal connection between the act and such consequences represents an institution worth examining, prior to considering the issues of unlawfulness, guilt and social danger. Analyzing the domain of causation we have emphasized that it is restricted to the so-called crimes of harmful consequences, which are similar to the result offences in the continental criminal law systems. The legal commentators and the courts have tried to address the conundrum of causation and ascription of responsibility through various theories and models. Moving on, the article uncovers the omissions and shortcomings of different causation related theories elaborated throughout the years, namely the equivalence theory, the adequate cause theory and the relevant cause theory. While some theories still retain the normative ascription criteria within their concept of causation, others have externalized them into theories of legal and moral ascription of blameworthiness to a factually causal behavior, the term mostly used nowadays for this kind of approach being objective ascription. Dissecting this concept implies a two-staged algorithm: creating a non permissible risk for the protected social values and the materialization of that risk into a legally referred to consequence. The author examines the first stage of the above mentioned algorithm, pointing out its three cornerstones i.e. the permissible risk, the lack of creation of a legally relevant danger and the diminished risk. The permissible risk emerged due to the fact that society accepted a number of dangerous activities as socially adequate risks because, based on a balancing of costs and benefits it is commonly seen as more beneficial to society to run these risks and try to contain them as much as feasible, than not to have their benefits and have no risks. Consequently, the author deals with the concept regarding the lack of creation of a legally relevant danger, also known as “an inexistent risk” in continental law. Generally speaking, as long as a person acts lawfully, any consequences arising from that lawfu

  • Issue Year: VIII/2012
  • Issue No: 01
  • Page Range: 23-53
  • Page Count: 31
  • Language: Romanian