Author(s): Ioana Curt / Language(s): Romanian
Issue: 01/2012
The present study has set its aim to surpass the Romanian doctrine’s standstill
regarding causation, especially by analyzing the manner in which other legal systems
have established it. The article explores the conception of causation, which is fundamental
to ascribing moral and legal responsibility for events. One should, however, consider that
causation, in terms of its criminal law meaning, has to be distinguished from its
philosophical roots. A person cannot be held liable for any event unless he or she did
cause it and, we should add immediately, cause it in the legal sense.
In the first part of this article the author discusses different aspects regarding
causation’s place within the topographic scheme of criminal offences. In addition to the
act or omission committed by the agent, specific consequences provided by the criminal
law norm must take place. Therefore, the causal connection between the act and such
consequences represents an institution worth examining, prior to considering the issues
of unlawfulness, guilt and social danger. Analyzing the domain of causation we have
emphasized that it is restricted to the so-called crimes of harmful consequences, which
are similar to the result offences in the continental criminal law systems.
The legal commentators and the courts have tried to address the conundrum of
causation and ascription of responsibility through various theories and models. Moving
on, the article uncovers the omissions and shortcomings of different causation related
theories elaborated throughout the years, namely the equivalence theory, the adequate
cause theory and the relevant cause theory.
While some theories still retain the normative ascription criteria within their concept
of causation, others have externalized them into theories of legal and moral ascription of
blameworthiness to a factually causal behavior, the term mostly used nowadays for this
kind of approach being objective ascription. Dissecting this concept implies a two-staged
algorithm: creating a non permissible risk for the protected social values and the
materialization of that risk into a legally referred to consequence.
The author examines the first stage of the above mentioned algorithm, pointing out
its three cornerstones i.e. the permissible risk, the lack of creation of a legally relevant
danger and the diminished risk. The permissible risk emerged due to the fact that society accepted a number of dangerous activities as socially adequate risks because, based on a
balancing of costs and benefits it is commonly seen as more beneficial to society to run
these risks and try to contain them as much as feasible, than not to have their benefits
and have no risks. Consequently, the author deals with the concept regarding the lack of
creation of a legally relevant danger, also known as “an inexistent risk” in continental
law. Generally speaking, as long as a person acts lawfully, any consequences arising
from that lawfu
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