Legal Questions And Scientific Answers : Ontological .

Legal Questions and Scientific Answers : Ontological Differences and Epistemic Gapsin the Assessment of Causal RelationsWahlberg, Lena2010Link to publicationCitation for published version (APA):Wahlberg, L. (2010). Legal Questions and Scientific Answers : Ontological Differences and Epistemic Gaps inthe Assessment of Causal Relations. Lund University.Total number of authors:1General rightsUnless other specific re-use rights are stated the following general rights apply:Copyright and moral rights for the publications made accessible in the public portal are retained by the authorsand/or other copyright owners and it is a condition of accessing publications that users recognise and abide by thelegal requirements associated with these rights. Users may download and print one copy of any publication from the public portal for the purpose of private studyor research. You may not further distribute the material or use it for any profit-making activity or commercial gain You may freely distribute the URL identifying the publication in the public portalRead more about Creative commons licenses: https://creativecommons.org/licenses/Take down policyIf you believe that this document breaches copyright please contact us providing details, and we will removeaccess to the work immediately and investigate your claim.LUNDUNIVERSITYPO Box11722100Lund 46462220000

Legal Questions and Scientific AnswersOntological Differences and Epistemic Gaps in theAssessment of Causal RelationsLena Wahlberg1

Legal Questions and Scientific Answers: Ontological Differences andEpistemic Gaps in the Assessment of Causal RelationsLena Wahlberg Lena WahlbergCover Picture: Trichloroethylene Molecule and Scale of Justice, byAnna Jin Hwa Borstam.Printed by Media-Tryck, Lund, November 2010.ISBN 978-91-7473-057-92

For Tobias, Idun and Hannes3

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AcknowledgmentsMany people have in different ways contributed to this thesis. Firstof all, I would like to express my gratitude to my former supervisor,Aleksander Peczenik, who sadly is no longer among us. With hisopen mind, his intellectual lucidity and his broad knowledge,Aleksander was a great source of inspiration.My next expression of gratitude is for the excellent supervisionthat has been provided by Annika Nilsson, at the Department ofLaw, and Johannes Persson, at the Department of Philosophy. Thankyou, Annika, for making such efforts to follow my windingthoughts, for insisting that they are clarified and expressed in anintelligible manner, and for making sure that my focus is on issues ofpractical importance and not governed by theoretical interest alone.Thank you, Johannes, for allowing me the freedom to endeavour andpursue my own intellectual paths, for always taking the time andinterest to listen to my ideas, and for all the comments you havegiven me, which – whereas always humbly expressed – have turnedout to be of such fundamental importance.I have been fortunate enough to be affiliated to both theDepartment of Law and the Department of Philosophy at LundUniversity, and I would like to express my gratitude to all friendsand colleagues at the two departments: thank you! Special thanksmust go to Christian Dahlman, for valuable comments, support andconfidence, to Linda Gröning for inspiring conversations and forbeing such a good friend, to David Reidhav for good suggestionsand interesting discussions, and to Nils-Eric Sahlin for many goodcomments and for supporting and encouraging me during thepursuit of the project. Special thanks also to Ulrika Andersson,Staffan Angere, Niklas Arvidsson, Uta Bindreiter, Ingela Brandt,5

Ingar Brinck, Leila Brännström, Yvonne Bylén, Kerstin Engstrand,Sebastian Enqvist, Bengt Hansson, Jan Hartman, Victoria Höög,Ingvar Johansson, Helena Josefsson, Martin L Jönsson, HenrikLevinsson, Hans Liepack, Bengt Lundell, Anna-Sofia Maurin, Erik JOlsson, Erik Persson, Aleksandra Popovic, Stefan Schubert, RebeccaSchweder, Niklas Selberg, Olle Serin, Ellika Sevelin, Malin Sjöstrand,Robin Stenwall, Caj Strandberg, Martin Sunnqvist, Henrik Thorén,Ann Tobin, Elsa Trolle Önnerfors, Gert Tuwesson, Fredrik vanKesbeeck Andersson, Niklas Vareman, Sacharias Votinius, LinnéaWegerstad, Hjalmar Wennerberg, Anna Wiberg, Gunilla Wiklund,Christoffer Wong, Ola Zetterquist and Maria Öhlin.In 2006 my husband and I spent six months at the Centre forTime in the Department of Philosophy, University of Sydney. Amore inspiring environment is hard to imagine, and the time wespent there and the people we met while doing so have meant a lotto both of us. I would like to express my warmest thanks to ourgenerous and hospitable host, Huw Price. Special thanks also toMark Colyvan for interesting discussions (in Sydney as well as inLund), to John Cusbert for many fun coffee breaks and goodsuggestions on the manuscript, to Brad Weslake for making our visitto Sydney possible to begin with, and to participants at a seminar atthe Centre for many valuable comments on the project.Many thanks to Mårten Schultz for valuable suggestions, andfor an interesting discussion at my final seminar, to Lars Heuman forhelpful comments, to the philosophers of law at the universities ofGöteborg, Stockholm and Uppsala, who on numerous occasionshave commented on my project, to participants in theinterdisciplinary “Risk-Meeting” at Lund University for many goodtalks, and to Paul Robinson who runs Quercus Editorial Service forvaluable comments and for checking and improving my English.Thanks to the Faculty of Humanities and Faculty of Law for theprovision of excellent facilities, and to Stiftelsen Emmy Ekbergsstipendiefond nr. 1, Stiftelsen Erik och Gurli Hultengrens fond för filosofi,Institutet för Rättsvetenskaplig Forskning, Stiftelsen Makarna IngeniörLars Henrik Fornanders fond and STINT - the Swedish Foundation forInternational Cooperation in Research and Higher Education, forgenerous support. Special thanks also to Lina Ahlgren, Anna Jin6

Hwa Borstam, Johan Cederblad, Christina Clementson Kockum,Jenny Jernström, Moa Kindström Dahlin, Ola Olsson, Bengt-GöranStåhl, Henrik Vassback and Kristina Wahlstedt.My most hearty thanks go to my family. Thanks to my parents,Agneta and Gustaf, for all your love, encouragement and help, to mysister, Karin, for your wisdom and your sense of humour, to mybrothers and sister in law, for your words of cheer, and to myparents in law, Synnöve and Åke Hansson, for your assistance andencouragement. Thanks to Idun and Hannes (what a remarkable andhappy coincidence that Tobias and I got both of the two loveliest kidsin the world!) for all the meaning and joy that you bring me.And most of all, to my husband, colleague and best friend:thank you, my dearest Tobias, for the support that you have givenme during these years, for the adventures that we have experiencedtogether and for the many interesting talks that we have had. Thankyou for being there – and for always having been there for me.7

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ContentsAcknowledgments . 51 Introduction . 131.1 Legal Questions and Scientific Answers . 131.2 The EOD Framework (The Framework ofEpistemological and Ontological Differences) . 171.2.1 Epistemological Differences . 171.2.2 Ontological Differences . 211.2.3 Application of the Framework . 271.3 Material, Method and Interdisciplinarity . 321.4 Structure of the Thesis . 412 Legal Ontology and Science . 432.1 Introduction . 432.2. Kinds and Individuals . 432.3 A Distinct Legal Ontology . 452.4 Legal and Scientific Ontology . 512.5 The Relevance of Non-Legal Disciplines toLegal Ontology . 572.6 Conclusions . 653 Legal Questions about Causation . 673.1 Introduction . 679

3.2 Aims, Rules and Questions about Causation . 673.2.1 An Aim of the Law. 673.2.2 Two Legal Questions about Causation . 693.2.3 Aims and Rules . 723.3 Legally Relevant Causes, Effects and CausalRelations . 753.3.1 Causes . 753.3.2 Effects . 793.3.3 Causal Relations . 843.4 Conclusions and Two Hypotheses . 994 Scientific Knowledge of Causation . 1034.1 Introduction . 1034.2 The Aim of Science and Scientific Knowledgeof Causation . 1034.3 Causal Relata . 1064.4 Causal Relations . 1124.4.1 Perceiving Causation . 1124.4.2 Isolated Relations and Relations inGroups . 1144.4.3 Isolated Relations, Relations in Groupsand “True” Causation. 1194.4.4 Isolated Relations, Relations in Groupsand the Scope of Scientific Knowledge . 1224.5 Conclusions . 1245 Ontological Differences . 1275.1 Introduction . 1275.2 Legal and Scientific Causes and Effects . 1275.2.1 Factors of Relevance to the Demarcationof Legal and Scientific Causes and Effects . 1275.2.2 Relations between Legal and ScientificCauses and Effects . 13210

5.3 Legal and Scientific Causal Relations . 1355.3.1 Factors of Relevance to the Demarcationof Legal and Scientific Relations . 1355.3.2 Relations between Legal and ScientificCausal Relations . 1385.3.3 Similarity and Empirical Correlation . 1415.4 Conclusions . 1466 Epistemic gaps . 1496.1 Introduction . 1496.2 Prima Facie Obstacles . 1496.3 The Relevance of Epistemological Differences . 1506.4 The Relevance of Differences between theLegal Questions . 1556.5 Two Inferential Steps . 1576.6 The Establishment of Associations betweenKinds . 1606.6.1 General Limits to the Establishment ofAssociations between Kinds . 1606.6.2 The Relevance of Differences betweenthe Questions . 1656.7 The Establishment of Legally RelevantRelations . 1696.7.1 General Limits to the Establishment ofLegally Relevant Relations. 1696.7.2 The Relevance of Differences betweenthe Questions . 1766.8 Conclusions . 1817 Ontological Adaptations . 1837.1 Introduction . 18311

7.2 The Relevance of Epistemic Considerations toLegal Ontology . 1837.3 The Need for a Holistic Approach . 1907.4 Possible Ontological Adaptations . 1917.4.1 The Retrospective Question and theProspective Question . 1917.4.2 Intrinsic Damage and AbsoluteInstrumental Damage . 1967.4.3 The NESS Test and the But-for Test. 1977.4.4 Relaxing the Causal Requirement . 2007.5 Conclusions . 2058 Summary and Concluding Remarks . 207References . 215Books and Articles . 215Government Bills (Sweden) . 228Table of Cases . 229Australia . 229Sweden . 229United Kingdom. 229United States . 229Table of Statutes . 230European Union . 230Sweden . 230United States . 23012

1 Introduction1.1 Legal Questions and ScientificAnswersTo be effective, laws must be applied to the world. This applicationgives rise to questions about what the world is like and whether theconditions required for legally relevant consequences to ensueprevail. Science is often called upon to assist in answering thesequestions. 1 Prima facie, the structure, and the division of labourinvolved in the use, of scientific knowledge in a legal context looksrather clear. Yet this interdisciplinary meeting gives rise to manyproblems and is a notorious source of frustration for lawyers andscientists alike. The purpose of this monograph is to draw attentionto some of these problems, and to discuss the implications that theyhave and should have on the legal system.On closer inspection, it soon becomes obvious that the use ofscientific knowledge in a legal context is problematic. To begin with,science is not the objective provider of definitive answers that nonscientists sometimes believe it is. Scientific theories are known to beunderdetermined by data; in principle an infinite number of theorieswill be compatible with the same limited set of data, 2 so somethingmore than data is needed to determine which theory should beembraced. As is often pointed out, value judgements are made in“Science” will refer in this monograph to natural science, but much ofwhat is said here applies to other kinds of science, too.2 See Duhem, The Aim and Structure of Physical Theory, 1991 (1906), pp.180 ff. and Quine, “Two Dogmas of Empiricism”, 1951, pp. 39 ff.113