Causality and Equity Judgement: from Certainty to Mere Possibility

Abstract

The variety of theories about causality shows off the difficulty of establishing a sufficient concept of the institute. The ontological character of the causal connection makes its legal definition problematic, since the deontological nature of Law implies in the inadequacy of its instruments to characterize that relation. The analysis of the main theories about causality, understood as the most usually treated by the doctrine, allows to visualize the deficiency of the legal treatment given to the institute, especially with the expansion of the hypotheses of objective civil liability, in which fault no longer operates as a refractory element to identify the damage author. Through theoretical-bibliographic and jurisprudential research, it is exposed how civil liability evolution and its objectification process, obliterating the fault element as a limiting factor in the identification chain of the damage author, culminates in the need of a better legal concept of causality, due to its centrality in the imputation regime. The axiological and teleological character of the civil liability rules ends up bringing foreign elements to the conceptualization of causality institute, in attempt to meet an equity sense. It is admitted, therefore, the causality verification even when uncertain, satisfying the imputation with its probability or even the mere possibility of its occurrence, especially with the objective of supporting the victim as a measure of justice.