Cause as a Term of General Significance.
The legal
word “cause” and the Roman law causa are terms of
ancient usage (Plucknett, 1956a).
These terms meant
(and still mean) variously the right which the
injured
party asserts, or the form of judicial redress, or the
justification by either party for his course of conduct.
Indeed, this idea
of cause, whose essence is caught up
in the ordinary word
“because,” is the primary and
ubiquitous meaning of
“cause” (Plucknett, 1956b). The
plaintiff or
petitioner pleads his “cause of action.” The
defendant is called on to “show cause” why the ma-
chinery of the law should not move against
him. In
the Civil Law and vestigially in the Common Law,
the plaintiff
may be required to establish a good
“cause” why a
promise should be enforced, as for
example in a gift made in contemplation
of death
(causa mortis). “Without
just cause” is a legal catch
phrase traditional with many forms
and modes of judi-
cial process.
Needless to say, these are pristine and basic meanings
of the term
“cause.” When, late in the development
of both
matured systems of law (common and modern
civil law), students of legal
theory attempted to form
a comprehensive theory of causation in law, they
framed the
idea of causation from three familiar fac-
tors.
These are physical causation; the subjective state
of mind of the agent in
pursuing a goal or purpose;
and the policies of the law underlying its
decisions in
awarding or withholding redress. These three elements
may
be stated as part of the plaintiff's prima facie
case.
He must show physical causation by the defendant. In
addition,
he may be called on to show that the defend-
ant intentionally or negligently caused the harm.
Finally, he may
have to demonstrate that it is the law's
policy to regard the defendant's
behavior as just
“cause” for redress.
The mode by which legal causation is differentiated
from causation as a
philosophical idea can be illustrated
simply. In law, if you cause an
injury, you may be held
responsible. Conversely, if you happen to be
held
legally responsible, the law is apt to say you
“caused”
the injury. Most of the apparently limitless
debate on
the nature of legal causation originates in this simple
conversion of the idea. There is little scholarly agree-
ment on the nature of legal causation. Opinion
ranges
all the way from the assertion that causation underlies
all
legal phenomena to the denial that causation is a
necessary or even a
defensible notion in the realm of
legal liability. In between these
extremes, causation
theories proliferate, and their examination and
defense
continues to be the subject of a vast literature in the
present century.
