Difference-making in causation: what lawyers can learn from scientists and vice versa

Explanations in the sciences is a widely studied topic. Different accounts have been proposed and new variaties of those accounts are still popping up. One of the main paradigms in explanation studies is causation. Proponents of causal explanations have defined a range of different types of causation: contrastive, mechanistic, interventionist, probabilistic, etc. Within this topic a large scope of sciences are being studies to learn about explanation and causation. In an era where law and justice is depending more and more on scientific input such as DNA- and fiber-analysis, ballistic reports or forensic sciences, it can be profitable to use the knowledge we have about causation in the sciences to compare it with laywers’ and judges’ understanding of causal explanations. The specific problem I want to focus on is the relevancy of causal conditions of an outcome. Human behavior or an event can be described in a number of different ways, but the key is to find the relevant description. A person's conduct or a natural event or process can always be described in a number of different ways, but only certain descriptions of an alleged cause are crucial in legal proceedings. In a legal context the causal link between two events must be described as a link between particular aspects of those events. Michael Strevens has a suggestion to distinguish relevant from irrelevant causes in an explanatory process. In his kairetic account, he uses the unificationist account to deal with the notion of difference-making in his causal account. Strevens argues that an explanation consists of giving the correct causal details. Some details need to be omitted or distorted while others are crucial. The unificationist, he says, can handle this by showing that including or excluding some details elevates the degree of unification. To help causal approaches deal with this relevance-question, Strevens claims that only parts of the causal network that made a difference to whether or not an event happens are relevant. For Strevens, a set of conditions is sufficient for the occurrence of an event, just in case the conditions jointly entail the causal production of that event. To determine whether or not a condition is a difference-maker, Strevens has set up an eliminative procedure. In my presentation I will elaborate on this procedure and apply it to reasoning processes in legal contexts. The results from this test will form the starting point of a comparison between the use of causation in law and in the sciences