Luo Xiang: The truth is never as simple as you think

Night reading and opening the book are beneficial.

Since Professor Luo Xiang, the "sober joker in the world", has become popular on the Internet, in addition to his deep achievements and solid knowledge reserves in his profession, what is more popular is his philosophical golden sentences.

Recently, Luo Xiang published a new book, The Paradox of Law, which provides a feast of thinking around 14 types of classic opposing cases.

Reading this book, you will understand the underlying logic of the law and understand the hot controversies on the Internet that can never be stopped.

Most importantly, it will give you a whole new way of thinking.

This finitude reminds us to learn to be humble, not to attach unmarginal values to the things we value, and to learn to accept the relative rationality of opposing views, so as to enrich our understanding of the big picture.

Socrates famously said:"There's only one thing I know, and that's that I don't know anything. ”It also seems to be a paradox, but this paradox makes him a wise man. True wisdom is to admit that you don't have wisdom and to humbly accept your shortcomings.

Law is a small branch of the social sciences, and paradoxes abound, such as the familiar prisoner's dilemma. As a criminal law scholar, I actually have blind spots in a lot of legal knowledge, and I actually need to be popularized even more as a self-proclaimed law popularizer. Due to the limitation of knowledge, I have mainly selected some paradoxes in criminal law in this book to share with you**.

I can't provide answers to these paradoxes, I can only present the thought process. I hope that in this process of thinking and thinking, I can exercise my thinking, recognize the limitations of reason, get out of the hedgehog-style thinking arbitrariness, and accept the fox-style diversity and tolerance.

Now, embark on a paradoxical journey of law to find your answers.

Causality: It cannot be assumed but must be assumed

Causation in criminal law refers to the objective connection between the harmful act and the harmful result. In almost all complex cases, we can see the unfathomable depth of causal judgment.

One day in September 2020, Wang drove his wife to see his 3-year-old daughter. On the road, the two had an argument, and his wife Li, who was sitting in the back seat, opened the car door and jumped in.

According to the judgment documents, the reason for the quarrel between the two was that the wife wanted to go out to eat hot pot and refused to visit her daughter. Wang found that his wife had jumped out of the car, immediately stopped to check, and dialed 120 for first aid. However, after the doctor arrived at the scene, he found that Li's head fell to the ground, and he died on the spot due to severe head injury. Wang took the initiative to surrender to the police station. The court held that Wang's conduct constituted the crime of negligence causing death due to overconfident negligence, and that considering that Wang had reached a settlement agreement with the victim's family and obtained written forgiveness, and voluntarily pleaded guilty and accepted punishment, he could be given a lenient punishment in accordance with law. The court finally ruled that the defendant Wang was guilty of negligence causing death and was sentenced to two years imprisonment with a three-year probation.

In this case, is there a causal relationship between Wang's quarrel and his wife's death?

First, a prerequisite for causation to be established is that it must be a harmful act, not any act. It cannot include the usual behaviors that people often engage in in their daily lives.

Zhang Yizha villain "stabbed Zhang Er to death";Zhang San used his afterglow to glance at Zhang Si to death;Zhang Wu persuaded Zhang Liu to participate in the Big Stomach King competition and strangled him to death;Zhang Qi asked Zhang Ba to take the plane, hoping that the plane would fall, and sure enough, the plane crashed. None of this is causal, as none of these are harmful acts.

In the case of Li jumping out of the car, the quarrel should generally not be regarded as a harmful act, because quarrels between husband and wife are relatively common. But if you do it during a fight, it can be considered a harmful act.

Secondly, causation is divided into de facto causation and legal causation, and only the latter is the basis for pursuing criminal responsibility.

His wife Zhang Jiu set fire to the abandoned thatched house at home, but her husband Zhang Shi ran into the fire because all his private money was hidden in the thatched house. Zhang Shi was burned to death, is there a causal relationship between Zhang Jiu and Zhang Shi's death?

The condition saysIt is believed that if there is no former there is no latter, then the former is a condition of the latter. However, according to this reasoning logic, Zhang San's murder and his mother also have a causal relationship with the murder. If she hadn't given birth to this son, the murder would not have appeared, and naturally it would not have caused harm to the world. Looking at it this way, there seems to be something reasonable about the system of continuous sitting in ancient China. However, in modern criminal law theory, it is clear that the conditional punishment is too broad and must be limited.

Quite causality saysThe conditional theory is qualified to a certain extent. According to this theory, the condition can only be said to be "de facto causal relationship", and under the premise of factual causal relationship, a certain amount of screening is required, which is also the so-called equivalence to derive "legal causal relationship". Equivalence is actually a kind of probability judgment, and only according to the experience of general social life, the behavior has a high probability of triggering the result. In other words,Among the many conditions that lead to the outcome occurring, choose those that are most probability-oriented. Therefore, the theory of considerable causality is also known as the theory of important conditions.

For example, Zhang San asked Li Si to come to dinner, and Li Si was hit by a car on the road and died, is there a high probability of being hit by a car and dying?No. But Zhang San knocked Li Si unconscious in winter, and he was frozen to death that night, so what about the probability of people who were in a coma on a winter night freezing to death?Nature is a high-probability event, so there is a causal relationship.

Finally, the link is an objective one that does not take into account the subjective will of the perpetrator.

The most typical case is the case of anomalous constitution. Zhang San stabbed Li Si with a knife, and Li Si was slightly injured, but Li Si had hemophilia and bled incessantly. In this case, it is impossible for Zhang San to know that Li Si had hemophilia, but this does not affect the causal relationship between the stabbing behavior and the result of death, after all, it was you who stabbed him and induced his illness. Li Si has hemophilia This is an objective fact, and this fact, coupled with the trigger for being stabbed, leads to a high probability of death. Of course, the existence of a causal relationship does not necessarily mean that criminal responsibility must be borne, because conviction and sentencing also consider whether there is intentional or negligent subjective aspects.

Illustration for this article: Unsplash

So, it is noted that there are three premises for causality:

First, the causal relationship must be the relationship between the harmful act and the result. If it doesn't even count as a harmful act, then there is no need to discuss cause and effect at all;

Second, the legal causal relationship is screened out in terms of factual causation;

Third, causality is objective and does not depend on the subjective thoughts of the person.

In the car jumping case, if Wang simply quarreled with his wife, this should not be found to be a harmful act, then there could be no causal relationship;But if Wang slapped his wife during the quarrel and his wife jumped out of the car, then the causal relationship between the harmful behavior and the result needs to be considered, that is, whether the car jump is a high-probability event or a low-probability event.

Since causality is objective, it cannot be subjectively assumed.

Zhang San was about to be executed, but Li Si killed Zhang San one minute before his execution. On the surface, if it were not for Zhang San's behavior, Li Si would also have been executed. So it is obviously absurd to say that there is no causal relationship between the deaths of Li Si and Zhang San. According to this logic, any causal relationship that causes death can be denied, because people eventually die. You will find that there must be a definite point in time and space when a person dies. A second of life is also life.

In the above-mentioned case of killing a condemned prisoner, Li Si's actions allowed Zhang San to live for one minute, so of course there is a causal relationship.

But someone raised a reverse case: Zhang San asked Li Si to travel to the beach and wanted to poison him. Li Si excitedly took the morning bus to the beach. Arriving at the beach 24 hours later, Zhang San poisoned Li Si, who was still immersed in the sweetness of love, at a candlelit dinner. Later, it was discovered that when Li Siyi left the house, the whole family, including five dogs, was killed by the enemy.

In this case, is there a causal relationship between Zhang San's poisoning and Li Si's death?If Zhang San hadn't invited Li Si to the beach, Li Si might have died a long time ago. It was precisely because Zhang San wanted to poison Li Si that Li Si lived a few more days. Does Li Si still want to thank Zhang San?

This conclusion is of course also absurd, which reminds us once again that causality is objective, no one has the ability to assume causality, people cannot go back to the past, and what has already passed is irreversible.

There's a very old movie, How Good Life Is, older than most of us are. Whenever I get discouraged and depressed, I think of this movie. The protagonist, George, feels that his life is full of failures, meaningless, and not as good as not being born.

George was deaf in his left ear and could not join the army to serve the country, and was going to go out to school to see the world, but his father died suddenly and could only spend his life in a small town. The company that was struggling to stay up was on the verge of bankruptcy one day, and George was ready to commit suicide by jumping into the river before Christmas. At this time, God sent angels to save him and make him understand how miserable the world would be without Him. It is because of his integrity and goodness that he has helped many people and kept the town from becoming a center of depravity. When his brother fell into the water when he was nine years old, he came to his rescue, causing him to become deaf in his earsThe owner of the pharmacy mistakenly dispensed poison as a cure, and he did not hesitate to be scolded by the boss to correct it in timeIn order to save his father's company, he gave up the opportunity to go to college to his younger brother;He refused to pay ten times the high salary, so that the residents of the town lived in new houses with good quality and low prices.

This movie always reminds me that we don't have the ability to assume cause and effect, we can't go back to the past, we can't go back to the future, we can only use the present as a gift, do things well in the here and now, and everyone's little kindness will make the world a better place.

Thus, criminal law theory holds that the concept of "presumed causation" is meaningless and can lead to the misconception that causation is only a pure assumption.

Attentive students will find a small problem, the condition of factual causation says -If there is no former, there is no latter, isn't it also a hypothesis?If causality cannot be assumed, why should it be assumed?

Zhang San shot and killed Wang Wu, and Wang Wu died. Was Wang Wu killed by Zhang San?If Zhang San hadn't shot, would Wang Wu have died?It's hard to say, because guns don't necessarily kill people. In addition, how do you know that if Zhang San doesn't shoot, Wang ** will die due to other accidents. For example, before Zhang San aimed and shot, Wang Wu suddenly remembered the sadness of his girlfriend breaking up with him and committed suicide by jumping into the river.

Don't think that this is just theoretical nonsense, the reality of negligent crimes is more complicated.

On the evening of October 10, 2019, the bridge deck of a viaduct in Wuxi overturned, and a vehicle fell, and the overturned bridge deck pressed the normal vehicles underneath. Caused 3 dead and 2 wounded. The next day, the Wuxi Municipal People's ** Office reported that after preliminary analysis, the rollover accident was caused by the overloading of the transport vehicle. Is there a causal relationship between driver overloading and bridge collapse?If the big trucks were not overloaded, would it be possible for the bridge not to collapse?Can you go back in time and assume all this?After all, what happened has already happened.

In a large number of traffic accident cases, you will hear similar justifications. When the defendant Zhang San drove his car to a certain intersection, he found rainwater manhole covers scattered on the road. However, due to the failure to take measures due to speeding (the speed limit on this section of the road is 60 kilometers per hour, and the defendant's speed is higher than 77 kilometers per hour), the vehicle lost control after rolling into the manhole cover, causing it to rush through the separation zone into the auxiliary road, and collided with the car driven by Yang X who was driving normally and Liu X and others who were driving normally on bicycles, resulting in three deaths and two injuries. The traffic management department determined that the defendant Zhang San was fully responsible for the accident. The court later sentenced him to three years' imprisonment with a three-year suspended sentence for the crime of causing a traffic accident.

In this case, the court found that Zhang San violated traffic laws and drove over the speed limit, which led to the accident. But the question is, how to determine that there is a causal relationship between speeding and the accidentThe defense lawyer asked for an investigative experiment, in which we drove at the same speed on the same road section to measure the trajectory of the vehicle. For example, arranging driverless vehicles, or simply modeling and processing on a computer.

Will the judge accept this argument?Would you agree to this kind of reconnaissance experiment?Probably not.

More than 10 years ago, I once encountered a case where A, B, C, and D were about to extort money and plan to attack the driver of a large truck with two vehicles left and right, trying to force the driver of the large truck to stop. The car on the left suddenly forced to drive in front of the big truck and tried to force the driver to stop, but the driver was driving too fast and knocked the left car into a ditch, and the car caught fire. The right car stopped, and A and B got out of the car and were about to run to rescue their accomplices C and D in the left car, but they met the driver of the big truck, and the two sides started fighting. In the end, the driver of the left car, C, climbed out of the car, but Ding, who was in the same car, was burned to death because the fire was too big.

The driver was charged with manslaughter on the grounds that if he had not obstructed the firefighting, Ding would not have been burned to death, and the driver said he did not know there were other people in the car. According to the public prosecution, if the driver knew that there were people in the car, it was an intentional crime, and since he did not know that there were people in the car, it was at least negligent death. The question here is, there is evidence that the fire was very large at that time, and if the driver had not fought them, A and B would have been able to rescue D in time?Do you think the driver is guilty of negligence causing death?

Regarding the causality of this case,There are three possible ways to judge.

One is the elevated danger theory, which presumes a causal relationship between the act and the outcome as long as the act causes the danger.

Of course, the danger here must be the danger that is socially prohibited, not the danger that is socially tolerated, which is not a legal hazard. We live in a dangerous world, where danger and opportunity are two sides of the same coin, and without danger there is no opportunity. Artificial intelligence such as autonomous driving technology is certainly dangerous, but the law cannot prohibit all dangers, only those that society does not tolerate. For example, Zhang San has developed an autonomous driving technology, and its algorithm rules are to protect the high but not the short, the rich but not the poor, and the officials but not the people. Passengers with IQ 120 and 80 can sacrifice 80 to protect students with 120, 985 and 211, and 211 to protect 985.

The second position is the theory of the possibility of consequence avoidance, which is that if the duty of care is fulfilled and the outcome may be prevented, then there is a causal relationship.

Zhang San's wife suffered from mental illness, and the disease attack slashed Zhang San's mother-in-law with a knife, Zhang San did not stop it, but gloated, opened a certain station to see the short **, and finally the mother-in-law fell in a pool of blood. As a guardian, Zhang San, if he stops his wife's behavior in time, it will not cause a big disaster. Zhang San's failure to stop the omission has a causal relationship with the outcome of death. However, it is always impossible to completely eliminate doubts in the judgment of probability. Causality itself is a theory of probability, not necessity. The elevated danger theory emphasizes the error of the behavior itself, while the theory of the possibility of outcome avoidance emphasizes the error of the outcome.

The third position is a compromise theory, also known as the high probability theory of outcome avoidance, which is to judge according to the law of probabilityIf he fulfills his obligations, as in the case of Zhang San's speeding case, if he did not exceed the speed limit at that time, there is a high probability that death will not occur.

This is actually a reference to the English philosopher Hume's theory of causality, according to Hume's position, nothing known can infer the unknown. Because causality is only a descriptive one, a summary and induction of known experience, or in other words, any causal relationship is only a probabilistic speculation.

In the end, the court adopted a compromise and said that the fire was very large, and even if it did not hinder the rescue, there was a high probability that Ding could not be rescued, so it held that the driver did not constitute a crime.

It seems,Causality cannot be assumed, but it seems that it must be assumed.

When we say that causality cannot be assumed, we emphasize that it cannot go back to the past in disregard of objective laws, while when we say that causality can be hypothetically reasoned, the emphasis is on the objective attribution of causality based on current empirical facts.

As we said earlier, the main basis of punishment is retribution, not prevention, and it is revenge for existing sins, not prevention and control of pre-existing sins. If only prevention is taken as the orientation of punishment, then in order to deter crime, the judicial organs can arbitrarily catch a scapegoat to take the blame, so as to establish a glorious image of the judicial organs that all cases will be solved and the legal net will be tight, and the general public will be deterred. However, this clearly violates the most basic common sense of impunity.

Causation is concerned with the relationship between the harmful act that has already occurred and the result, so it is naturally judged on the basis of retribution. Only those acts that seriously hurt people's righteous feelings can be considered to have a legal causal relationship with the harmful results, and the causal relationship must not be set because of the need for prevention.

For example, if a robber takes a hostage, and a policeman shoots the hostage to death out of malice, although the robber's taking behavior has a certain relationship with the death of the hostage, the death of the hostage is mainly related to the police. It would be clearly unfair to hold robbers responsible for the death of the hostages in order to warn future robbers and prevent kidnapping.

Retribution is a simple concept of justice for the public, and when multiple causes are intertwined, only those causes that are highly likely to cause harmful results according to human empirical rules have criminal law significance. According to our simple feelings, if an action independently leads to the result, then it should be considered that the action caused the result, and cannot be traced back indefinitely to the previous condition.

Zhang San called Li Si to dinner, but Li Si suffered a car accident on the road. In the rule of thumb, Li Si was hit by a car and killed, not killed by Zhang San, so Zhang San's invitation and Li Si's death are at best only a de facto causal relationship, and there is no legal causal relationship. In fact, any Zhang San will only feel guilty when he encounters such a situation, but he will not be so guilty as to go to the public security organ and surrender himself.

Looking back at the cases just now, in fact, they are all empirical judgments, looking at the probability of such empirical facts occurring. If the probability is high, such as the probability of bridge collapse due to overload, and it does not violate the laws of science, nor does it violate the sum of human experience, then there is a causal relationship.

Another example is Zhang San, who was speeding in the above-mentioned traffic accident case, if the result of speeding and death is a high-probability event, which does not violate the sum of human experience, of course, there is a causal relationship. Another example is the refusal to fight the fire, where the fire was so large that the probability that A and B would be able to rescue D was very low, and in this case, the apparent delay of the truck driver fighting with A and B had no causal relationship to D's death.

Causality is difficult to determine, but the determination of causality should not be discarded and "sin versus non-sin" should be made pure luck.

Causality is an empirical judgment.

Causality cannot be assumed, because causality is objective, and we cannot ignore objective laws to arbitrarily look back on the past and create a causal relationship that cannot exist.

But causality seems to have to be hypothesized again, because causality is essentially an empirical judgment, it is not an absolutely perfect judgment, but only an empirical certainty.

Dentist Zhang San performed an operation to remove two of his molars under full anesthesia, resulting in the patient's death from heart failure during anesthesia. Before the operation, the patient had told Zhang San that he had some heart problems, but Zhang San did not ask an internist to examine the patient as required by the medical regulations. It turned out that routine medical examinations could not detect the patient's heart disease;However, if an internal medical examination is performed, it can at least delay the patient's death by several hours or even days, because the examination will inevitably take a certain amount of time.

Is there a causal relationship between Zhang San and the patient's death?

The true and false paradoxes that are more brain-burning than reasoning, Luo Xiang's "work of spiritual internal friction", "The Paradox of Law" uses 14 popular cases to diverge from multiple perspectives to help improve thinking and cognition. Other books teach you knowledge, and this book gives you wisdom.

Click the link to buy this book: "[Self-operated Free Shipping] The Paradox of Law Golden Sentence Printed and Signed Edition Luo Xiang 2023 New Work of Law Popularization Details of the Rule of Law Lecture Notes on Criminal Law" (Guomai Culture, Production, Luo Xiang) [Abstract Book Review Sample] - JD Books.