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Dictionary of the History of Ideas

Studies of Selected Pivotal Ideas
2 occurrences of Ancients and Moderns in the Eighteenth Century
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2 occurrences of Ancients and Moderns in the Eighteenth Century
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Law and Philosophy. All philosophical systems sub-
scribe to some central idea of causation. In philosophy
as in religion, the notion of causation is either physical
or purposive, or both. At times a mechanistic or deter
ministic theory of causation is held applicable to the
whole of nature, including man. At others, nature is
seen as a total purposive or teleological structure. In
the philosophic beginnings of Western culture, that is
to say, in the teachings of the Pre-Socratics, there is
much evidence that the order of nature is seen as a
regime of legal obligation. “... Anaximander's doc-
trine of the systematic justice of the universe reminds
us that the most important idea in the new philosophy,
that of Cause (aitía) was the same as the idea of Retri-
bution and was transferred from legal to physical ter-
minology” (Jaeger, 1945). Justice rules the world and
the seasons must repay their just debts.

In classical antiquity, apart from the materialistic
atomists, man and nature are clearly separated and the
emphasis shifts from a philosophy of nature to a phi-
losophy of human nature. Theories of causation become
full-fledged, and philosophy starts on the task of ampli-
fying an account of this process which it has never
wearied of. Aristotelian and Stoic ideas of moral obli-
gation entered into Roman cultural life and indirectly
exerted a great influence on the course of the develop-
ment of the Roman Law. Apparently, however, Greek
philosophical notions of causation had little effect on
Greek legal practice, which indeed never developed
a system of general jurisprudential ideas. “Why were
Greek philosophy and Greek law so little influenced
by each other?” (Jones, 1956). Indeed, even Roman
jurists, as distinguished from the philosophers, appear
to have resisted philosophic “indoctrination” until the
end of the classical period (Schulz, 1953).

The Aristotelian doctrine of causation went over into
the medieval religious systems, both Jewish (B. Cohen,
1966) and Christian (Wigmore, 1912) and entered inti-
mately into ecclesiastical law, clerical and lay, partly
through the Canon Law and partly in medieval Jewish
philosophy and rabbinical practice.

Modern philosophical theories of causation have had
a large though usually indirect effect on modern juris-
prudence, especially after the separation of law from
theology on the Continent, and in the theories of phys-
ical and psychological causation of Hobbes, Bacon,
Locke, and Hume in England. The rationalistic epis-
temologies (Descartes, Spinoza, Leibniz) tend toward
ethical determinism (Spinoza) or barely rescue freedom
of will by a palpable device (Descartes). In Leibniz,
trained lawyer and diplomat, the problem of legal
“conditions” was a matter of early concern, and in
Christian von Wolff (1679-1754) the whole deductive
apparatus of rationalism was taken over bodily and
applied to the law. Strangely enough, the rather so-
phisticated theories of ethical determinism developed
by the rationalists found an echo in the primitive
theory of legal liability that a man acts at his peril,


291

and that while religion may look tolerantly on the
ignorant sinner, the early law shows him scant indul-
gence. Its motto was: Qui inscienter peccat, scienter
emendet
(“Who unknowingly sins, knowingly makes
amends”).

Of British empiricism, Hume's view of causation as
based on custom was most congenial to the common
law jurists. Returning to the continent, the Kantian
theory of causation has had but little effect on theories
of causation in law. When we come to the nine-
teenth-century philosophical movements, we find that
theories of causation, particularly those of the philoso-
phers of science (e.g., Bentham, Comte, Mill, Spencer)
reach the daily practice of the law, if at all, only
through the screen of philosophy of law or of juris-
prudence. In sum, philosophy enables the legal philoso-
pher or jurisprudent to amplify and adapt philosophical
theories of causation to general systems of jurispruden-
tial thought. These in turn stimulate legal specialists
or commentators and eventually the ideas filter down
into legal practice.

In contrast to philosophic origins of causation, law
more often takes account of ideas and sentiments of
causation as popularly conceived, even when the law
does not find it necessary to deal directly with causa-
tion as a general juristic idea. And at all times the law
is busily engaged in creating the materials out of which
a body of learning on causation can be created. Begin-
ning with the nineteenth century, this body of theory
comes into existence and jurisprudential ideas of causa-
tion enter directly into the everyday life of the law.