On The Causal Relationship Of Tort In The Analysis Of Positivism

From the fairly causal relationship between the civil law system and the Anglo-American legal system,the theory of causality between law and effect is always in the long-term dispute and inconclusive situation.Although the theory is endless,the present situation of the causal relationship identification is not solved:the causality and the fault,the damage result and the behavior and other constituent elements exist the function overlap,the judicial practice which adding the policy consideration causes the losing of causal relation objective position,the new tort case appearance whichcauses the original causal theory model no longer adapting.The innovation of theory can not only focus on the solution of existing problems and modify the theory,to solve the difficult dilemma of causal relationship is to ask the right question first.The confusion of the function of causality and fault is the result of the entry of value judgment into constitutive system,and causality should insist on pure objectivity and eliminate subjective position.With Hume and Muller as representatives,the author expounds that the theory of causality of philosophy brings the important revelation to the law,that is,the objective inevitability of causality in the empirical standpoint is not proved,and the uncertainty of the objective position of causality in the existing theory of tort law is the same as that of the empirical ones.In the course of analyzing positivism's theory towards,Austen,Kelson and Hart draw the similarities and research methods of the three theories and the research standpoint,and argue that the objective causal relationship can be expressed by means of the external observer's perspective,descriptive language and eliminatingmoral value judgment.In combination of the constitutive elements of tort law,the substitution between fault and causality function and the malpractice in judicial practice,should absorb the theoretical inspiration of causality in Analysis of positivism jurisprudence:under the guidance of systematic theory,the objectivity of causality should be adhered,The problem of the constitutive elements's function betweenfault and the causation should be solved;the function of the value judgment assumed by causality should be borne by other constitutive elements.