The Hypothetical Nature of Legal Liability and its Temporal Dimension Towards a Dialogical Approach to Causation in Law (First Explorations)

Résumé En

Inferential approaches to legal liability (including cases of pre-emption), embedded in a dialogical framework yield, so we suggest, a quite intuitive implementation of Armgardt's proposal to respond to Moore's (2010) study of cases of causal overdetermination in Law, provided the deployment of a fully interpreted language as the one of Martin-Löf's (1984) Constructive Type Theory is casted in a dialogical framework-rather than in a possible-world one-, whereby (1) hypothetical judgements (involving non-actualized tokens) can be explicitly distinguished from categorical conditional judgements, (2) tokens of actions can be introduced as explicit denizens of the object-language, (3) actual harm/tort events are analysed as tokens dependent upon tokens of their (putative) causes-i.e. as (multi) functions over tokens of their causes, (4) tokens of actions can be "enriched" with a timing function. The paper will be divided in two main parts.. The first one follows Armgardt's strategy to start by establishing collective Liability and proceed afterwards with the identification of individual Liability. The second main part, proposes a framework for the attribution of individual responsibility with regard to the determination of individual Causation. This second way is led by the rationale that legally liable is the one who caused the damage, individually or in association with others.