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Placing BlameA Theory of the Criminal Law$
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Michael S. Moore

Print publication date: 2010

Print ISBN-13: 9780199599493

Published to Oxford Scholarship Online: September 2010

DOI: 10.1093/acprof:oso/9780199599493.001.0001

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Foreseeing Harm Opaquely

Foreseeing Harm Opaquely

(p.363) 8 Foreseeing Harm Opaquely
Placing Blame

Michael Moore (Contributor Webpage)

Oxford University Press

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

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