Liability Under Uncertain Causation? Four Talmudic Answers to a Contemporary Tort Dilemma

Abstract

The question of whether to impose tort liability in cases of increased risk is an evidentiary issue that has been of concern to legal scholars, particularly in the field of tort law, for thousands of years. In contemporary Western tort law, the issue is most often of concern in medical malpractice cases and in cases of environmental pollution and exposure to toxins, such as radiation or asbestos. This issue, which is subsumed under the topic of uncertain or probabilistic causation, was also of great interest to Jewish legal scholars and courts already many years ago.

We present four models for uncertain causation, derived from the literature and from court rulings, both in contemporary tort law and in Talmudic law, and examine each case vis-à-vis the goals of tort law. Although at times we tend to think that portions of Talmudic law are outdated and incapable of shedding light on contemporary law, at least not directly, one should note that a school of thought within Talmudic law devised an approach to the problem of tort liability under uncertainty that contemporary tort law began to consider as a possibility only in the last twenty years.

Can contemporary tort law learn from Talmudic law in this issue? We argue that although it seems that both Talmudic law and contemporary tort law favored the same four models and reached similar results in some of the models, one should be careful in comparing solutions from different legal systems — religious and secular — facing similar problems but dealing with them with different means. We also show how specifics of legal cultures shape their analysis even where their results are similar. There is a significant conceptual difference between Talmudic law and contemporary tort law regarding both the theory of torts and the goals of adjudication. The difference between the legal systems is revealed by careful analysis of the various models within Talmudic law, in their legal, economic, and cultural context.

Keywords: tort law, Jewish law, evidence law, uncertain causation, probabilistic causation, comparative law

JEL Classification: Z00