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,
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.
