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- Title
A NESS CAUSATION BASED CONCEPT FOR IMPUTATION OF HARM IN CRIMINAL LAW.
- Authors
PUPPE, INGEBORG; GROSSE-WILDE, THOMAS
- Abstract
This article discusses the recent development of the concept of causation in criminal law in the common law countries as well as in Germany. It is the aim of this paper to develop a comprehensive concept for legal imputation of harm within criminal law fitting for all cases of natural causation but also institutional processes. We believe that the foundation of such a theory has to be a logically correct concept of the relationship between a single cause and an effect, and a thorough inquiry of the causal chain so that the further requirements of legal imputation can be described as qualities of an instantiated causal process. In the first part the regularity thesis is defended against objections from philosophers and jurists who seek for a more 'robust' concept of causation based on a new singularism; either in some form of physicalism or counterfactualism. It will be demonstrated that the logically correct conception of the relationship between a single cause and an effect is the so-called NESS account (Necessary Element of a Sufficient Set). The NESS test relies entirely on true facts so it is not necessary to employ counterfactual reasoning about so-called 'possible worlds'. While the 'but for'-rule fails in cases of preempted causes and overdetermination, the NESS test solves easily these problems of multicausation. In the second part we show that the NESS test develops its full analytical power if it is properly applied not to an act as a whole' but to its wrongful aspects (wrongful aspect causation). This is the first step in ensuring that liability for causing a certain harm lies within the 'purpose' or the 'scope of the violated duty'. This requirement is fulfilled if all aspects and preconditions for the unlawfulness of the conduct are elements of the minimally sufficient condition for the occurrence of the harm (completeness requirement). Furthermore, the wrongful act has to be connected with the harm by a chain of unlawful states of affairs (continuity requirement).
- Subjects
GERMANY; CRIMINAL law; CAUSATION (Criminal law)
- Publication
University of Western Australia Law Review, 2022, Vol 49, Issue 1, p306
- ISSN
0042-0328
- Publication type
Article