Quoting
David Cheifetz:
Ken,
Steve:
While
it's possible to read the Haig statement to mean that
Lambert JA was referring only to deductive reasoning, not inductive
reasoning, I think that's a too kind reading - not the least because
the case is an early example of the argument that material increase
in risk is a sufficient material contribution to amount to probable
cause. There may have been and may now be some logical content
to the English version of that test. The Canadian version means
nothing or everything (simultaneously).
I
agree that a conclusion reached without the aid of logic isn't
necessarily illogical. But being able to show that it's logical
(inductively or deductively) if you've reached the conclusion
without the aid of either form of logic is different.
What's
left? (We have, of course, the gap the HL leaped in Fairchild.)
That is, it is still possible that conclusion may be logical but
one has no analytically valid basis for saying it probably is.
So, if one says the conclusion "probably" is correct,
one is asserting that proposition based on (ahem) faith.
And
if I can rely on "common sense" inferences not supported
by any form of logic, what's the basis for restricting my reliance
to common sense?
Law
has to (formally) deny that is analytical procedures are based
on, a priori, faith, right? If it admitted that, it would make
law's process no more valid than religion.
In
Haig, the court was dealing with the issue of finding
of factual cause which has to be made on a more probable than
not basis and his ultimate point was an early version of Fairchild
as it was before Barker v Corus "Wilsherised"
(coining a verb) it; that is, that evidence which established
nothing more than that conduct increased the risk of some harm
occurring was evidence that that conduct was a cause of the harm
- an early Canadian leap over Jane Stapleton's gap. I don't think
the case can be read to mean just that the court acknowledged
that evidence wasn't actual proof of cause but would be deemed
to be evidence of actual cause.
