Probabilistic causation: elements for a critique of a concept

Abstract

The concept of causation has been the subject of a considerable number of theoretical inquiries in Brazilian Private law, many of which defends either a more flexible approach in specific hypotheses or its outright elimination. New types of causation have also been developed, such as probabilistic, alternative and causation by presumption. Based on mathematical evidence and comparisons with other civil liability models, especially the German one, this paper holds that the notion of probabilistic causation is inadequate. The paper also supports the residual use of expressions such as “alternative causation” or “causation by presumption”, which are concepts that have been debated in Brazilian legal scholarship since the 1950s. The most relevant nineteenth- and twentieth-century German theories regarding causality are examined in an effort to demonstrate the fortuitous nature of the new instances of causality. Discourse in favor of a more flexible approach toward causation cannot transform civil liability into an instrument of distributive justice.