Chapter

Foreseeing Harm Opaquely

Michael Moore

in Placing Blame

Published in print July 2010 | ISBN: 9780199599493
Published online September 2010 | e-ISBN: 9780191594649 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199599493.003.0008
Foreseeing Harm Opaquely

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The law has developed a notion of ‘proximate causation’ to limit the reach of acts that would otherwise be the ‘cause-in-fact’ of some remote harm. A leading legal test of proximate causation is the foreseeability test, according to which a harm is ‘proximate’ (and thus the basis of liability) only if that harm was foreseeable to the defendant at the time that he acted. An old conundrum is raised about this test, in terms of its indeterminacy in the face of different descriptions of what must be foreseeable. The tools of modern philosophy – dealing with referential opacity, referential transparency, failures of substitutivity, failures of existential generalization, types versus tokens, etc. – to make the problem more precise and show it to be intractable for legal theorists.

Keywords: proximate cause; foreseeability; referential opacity; referential transparency; de dicto; de re; facts; events; event-types

Chapter.  16052 words. 

Subjects: Jurisprudence and Philosophy of Law

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