An 'Extended But-For' Test for the Causal Relation in the Law of Obligations

Abstract

This article explores the question of what character relations must have before the orthodox law of obligations will describe them as ‘causal’ relations. The article does not purport to identify the metaphysical nature of ‘causation’. Instead it provides a non-reductive account of what is essential before the law has described the relation between a specific factor and the existence of a particular indivisible phenomenon as ‘causal’. Section 1 presents a simple test for this relation—an ‘extended but-for test’—that can be deployed in a straightforward way without engaging with theoretically complex and often problematic accounts of causation based on the notion of sufficient sets, such as Wright’s NESS account. Section 2 demonstrates how important principles relating to the separateness of a legal entity and to legal responsibility can resolve theoretical puzzles and in turn illuminate why the orthodox law of obligations does not choose to describe as ‘causal’ a relation wider than the one identified in this article.