Causation: Law and Science Compared
Science and law have different functions but share striking similarities. Both purport to provide rational, reasoned, independent, unbiased processes concerned with the objective assessment of evidence. There are also striking differences. Scientific assertions compared with determinations of legal causation have the following characteristics:
- they are population-based, not individual; general not particular;
- they are probabilistic, not deterministic;
- they are generally expressed as the refutation of the hypothesis and not a finding of fact or proof of an allegation;
- the evidence is not exhaustive, whereas an adjudication is determined according to the evidence available.
- science is not as concerned with finality as is law. There is no res judicata or collateral estoppel in science. Continuing scrutiny is always available and the jury can be brought back in at any time when new data becomes available.
The major distinction between legal determinations and scientific assertions lies in the concept of certainty. The legal concept of causation is deterministic: it is an expression of the fiction of certainty, an absolute concept. The scientific concept of causation is probabilistic: it is an expression of the uncertainty of truth, an asymptotic concept.
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