Editorial

• Author: Ben Mitchell
• Pages: 11-14

EDITORIAL

In the year since the Editorial Board published the last volume of the

Trinity College Law Review, Ireland and the wider world have faced

numerous events and challenges, some of them decades old but others of a

more recent vintage. In responding to these, politicians, bureaucrats,

journalists and citizens frequently resort to the language of law and turn to

the legal system and legislation for answers.

In our society, almost all actions have a legal context and law is the

medium through which economic, social and political change is

channelled. It is of some concern therefore that, at times, the law and the

legal system generally remain shrouded in mystery for much of the

citizenry. By way of example, the Presidential election, one of the major

acts of democracy that took place in Ireland over the last twelve months,

was characterised by uncertainty within the electorate and, occasionally,

the candidates over the scope of the President’s powers.

The last few years have seen the populace become economically

literate, as austerity becomes the normality and those with some expertise

engage in public discourse. For law to become popularly intelligible in the

same way requires academics, practitioners and students to lead national

debate on legal issues. However, students have an extra responsibility to

understand and engage with the law, as many of us will be able to take this

knowledge into careers outside the legal system. That responsibility to

examine and question the law should drive us to read beyond the confines

of what we study for a degree. This Law Review has always sought to

inspire such inquisitiveness and I hope this volume will therefore be of

interest not only to academics, practitioners and the general public, but

also, most importantly, to students.

Sarah Fulham-McQuillan opens this volume with her article

Hypothesising a Hypothetical on a Probable Basis: Can This be Factual

Cause in Medical Negligence? In it she addresses the conceptual

framework underlying the test for causation in medical negligence cases.

She analyses the extent to which the law relies on the hypothetical

alternative situation, in which the breach of duty did not occur, generated

by the ‘but for’ test. She argues that this has lead to a dilution of causation

principles that threatens the proper understanding of factual causation in

tort law.