> To return to the beginning of your argument, you begin by apparently
> stating that once you have wronged someone, you supposedly are responsible
> for whatever happens to them, regardless of whether or not your wrong
> contributed to the later occurrences.


I don't think I did. I said that if a loss would not have been suffered
but for the commission of one or more wrongs, each wrongdoer is jointly
liable for the loss, even if in respect of each wrong individually the
loss would have been suffered anyway because of the wrong of someone else.

> On the other hand, you proceed to argue that there is causation (or
> something else, unnamed and unelaborated?), using Mackie's (and others')
> attempts to salvage the but-for test by applying it in the aggregate. I
> recall your having rejected Mackie's aggregate approach. Perhaps I
> misread (I'd have to go back and check). In any event, if you then or now
> accept Mackie's argument, you are in really big trouble, since, as many
> have pointed out, the aggregate but-for test is wildly inaccurate and
> over-inclusive, in addition to being illogical (A did not contribute to
> the death, nor did B, but in the aggregate they did.)

I said, and say in my book, that although I am perfectly satisfied with
Mackie's answer to the "uncaused cause" objection, it is of no relevance
to the law. I am certainly not arguing for the 'targeted but for' idea. My
understanding is that Jane Stapleton no longer subscribes to that (I
apologise in advance if that is a misunderstanding).

Third (a huge error
> which is mitigated by reliance on the NESS causal sets idea in the
> comments), you limit the aggregate to those conditions that prevent other
> conditions from being but-for causes, you stilll have the problem of not
> being able to distinguish duplicative causation from preemptive causation.
> Eg, assume the dog is dead from the first stab before the second stab
> occurs, or the decedent drank a fatal dose of poison for which there is no
> antidote an instant before his head was chopped off. You seem to argue
> below ('stuffed dog has value') that the non-causer should still be liable
> for wrong of causing the death and all consequential damages. The law is
> clearly to the contrary. There would be no tort liability. There might
> be criminal liability, for attempted murder (attempted dogicide?), but
> that is a different wrong, in terms of specification and nature (public
> versus private).
>

No I don't argue that.

First, stabbing my dead dog is still a tort with respect to me. So
stabbing my dead dog is a trespass, although as dead dogs have no value
and as no loss suffered is consequent upon the wrong of stabbing a dead
dog, any damages are nominal. For a claim in trespass to succeed it has
never been required that consequential loss is shown.

The second mistake, in my opinion, is in your phrase "the wrong of causing
the death". That is not the wrong. The wrong is not constituted by the
state of affairs which exists now of the dog being dead. The wrong is
constituted by stabbing the dog. The loss the plaintiff suffers is
consequent upon the stabbing of the (live) dog, something which only the
fist stabber did. So applying the test I set out at the start, the first
dog-stabber will be liable for the consequential loss, but not the second.


> I agree that in your mortar and brick example, which involves the most
> difficult causation scenario, overdetermined negative causation, both
> omissions to supply were causes. The NESS analysis explains this. As you
> admit, the but-for analysis does not, unless you apply the bankrupt
> aggregate-but-for test.
>

I don't agree. If the builder himself had forgotten to order the mortar,
he would have no claim against the supplier of bricks for any
consequential loss because any loss suffered was not the caused by a
wrong. NESS leads to the result that the builder’s loss is still 'caused'
by the failure to supply bricks even where the builder had no mortar
because of his own idiocy. This is wrong. A 'fix' then needs to be
incorporated by those who subscribe to NESS, so that the loss is not
recoverable under a separate "legal cause" principle where the loss “would
have happened anyway.” The “would have happened anyway” principle only
applies where it would have happened anyway because of a non-wrong. This
Byzantine analysis leads me to conclude that something has gone badly
awry.

> We may indeed have legally recognized wrongs that do not involve any
> 'consequential loss' in the sense of physical or economic or even
> emotional harm. Assault, battery and false imprisonment are examples, as
> is a breach of contract. In those instances, nevertheless, there is not
> 'wronging in the air'. The conduct must cause some defined legally
> cognizable injury, to honor, dignity, autonomy, reputation, etc. Other
> torts, most notably negligence and the strict liability torts, do require
> some consequential loss.

No. The tort itself does not require loss. Some torts are actionable per
se and some are not. Torts which are not actionable per se are still torts
even where no loss is shown: they are just not of the actionable kind.
Loss goes to actionability, not wrongfulness. Similarly, the expiry of a
limitation period may mean that a tort is no longer actionable, but that
doesn’t prevent it from being a tort. That occurs when the duty owed to
another is breached.

We can see the truth of this from, for example, causing loss to a third
party by unlawful means where unlawful means may be constituted by a tort
which is not actionable by the victim.

Assume the independently sufficient stab wounds
> were the result of negligence rather than intent. Did each defendant
> commit a wrong regardless of any consequential loss?

Absolutely they did, see above.

> If you think so, I
think you have departed from the actual law.

No I haven’t: see above. You are confusing wrongfulness and actionability.

I should add that when I said that lawyers have nothing to teach
philosophers about causation, I didn’t mean that you (or anyone else)
individually couldn’t teach philosophers a thing or two about the
philosophy of causation. I mean that the law itself gives us no special
insights on this matter, and the idea that it does is, in my view, created
by misunderstandings about the law.
best
Rob