Causation in Law in Historical Perspective.
We
have seen that highly advanced systems of law such
as the
Greek and Roman were able to get along with
only the most primitive
theories of causation. This
invites a word of explanation. Greek juristic
practice
was at all times at the mercy of the vagaries of oratori-
cal appeal. Causation as a logical and
integral part of
legal responsibility received scant attention. The
Roman law, like the Common law, was a legal system
whose theoretical ideas
were shaped mainly in practice
and largely dependent on the exigencies of
the avail-
able forms of action. All that
Roman jurisprudence
seemed to need in terms of a general idea of
causation
was the rule that injuries that were compensable under
the
lex Aquilia had to be
“direct” (Thayer, 1929). All
else was taken care of
in the more informal procedures
of the edictal law.
The early common law is believed to have been a
system of strict liability
where the question of whether
the defendant intended the harm he caused or
was in
a negligent state of mind is irrelevant. Hence, only
physical
causation seems to be in issue. Such defense
is exceptional. The absence of
physical causation would
plainly show that the plaintiff did not know what
he
was about or was ignorant of who or what caused his
injuries. Primitive systems of law are apt to be particu-
larly harsh on one who starts up the
machinery of law
and does not prevail. Hence, physical causation,
while
always relevant, could largely be taken for granted.
Nor do the
primitive systems of law take much account
of purposive causation, that is,
the question of whether
the defendant intends the series of consequences
which
flow from his act or is culpably negligent in initiating
them.
Indeed, the whole question of causation is blan-
keted in primitive law either by the rigidity of its
procedures
or by the overwhelming importance it
attaches to responsibility as flowing
solely from im-
memorial and therefore
unexceptionable custom.
In the matured systems of law of the Western world,
legal liability begins
in tort and crime, which are
scarcely distinguishable. Legal capacity and
respon-
sibility rest in the
collective unit of the kin. It alone
is recognized as a legal entity and it
is responsible for
the harm caused by its members. Causation,
therefore,
is in the kin.
When the legal unit became the adult male citizen
or freeman the notion of
“collective” causation or
responsibility was
continued. For the head of the
patriarchal family was responsible for a
numerous
retinue of human beings who themselves had only
limited legal
personality. A large body of legal imposi-
tions developed against many who could in no reason-
able interpretation of the term be held to have
“caused” the harm.
