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Dictionary of the History of Ideas

Studies of Selected Pivotal Ideas
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7 occurrences of Dictionary of the History of Ideas
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While causation is an idea of general consequence
in religion and philosophy, it is a term of more special-
ized meaning in science, in history, and in law. In
science, causation is largely a principle of explanation
and prediction. For history, when admitted at all, it
is a vast abstraction that succeeds only minimally in
ordering the complexities of observed human behavior.
In law, the idea is at once highly theoretical as the
most general justification for the imposition of liability,
and severely practical as a means for assigning legal
responsibility in the individual case. Law views causa-
tion as related both to the order of nature and to the
nature of justice. In the first, causation plays a central
role in the determination of legal facts; in the second,
causation emerges as a leading component of the idea


of responsibility. Each of these roles is indefinitely
complex. Their combination is the history of the idea
of causation in law.

Law and Religion. Causation is a leading motif in
most religions: the ways in which the world comes into
existence and is sustained, and the modes by which
man may discharge religious obligation. Each notion
involves a theory of causation. A religion's cosmology
issues in its science, primitive or advanced; the obliga-
tions imposed on man by his religion are his first law.
All the ramifications of the idea of causation in religious
history have this dual character. Causation is either
physical or purposive, according as its referent is na-
ture or human conduct. Causation in law retains the
two strands, though its concern is much more with
human action than with the order of physical events.

In the history of Western religion, God is said to
have caused the world to come into existence and to
govern it through his laws (note the legal reference).
In the Bible, the cosmogonic account of the origin of
the universe is scant and primitive; the laws governing
man are detailed and sophisticated, so much so that
the original document comes to be known as the Book
of the Law (Torah, in Hebrew). There was an early
development of a widespread casuistic activity which
has never ceased to occupy the Hebraic religions.
Religious law concerns itself with the limits of human
obligation or responsibility, and inherent in all such
legislation or decision is a notion of causation. It is
usually assumed that a man is responsible for the state
of affairs which he has caused. The extent to which
he may be held responsible for events he has not caused
is a matter of deep and continuing perplexity.

Out of this religious practice grew one major strand
of the idea of causation in law. And since law becomes
separated from religion, if at all, only in the late matu-
rity of religion, it is easy to see how important religious
beliefs in the matter of causation are to legal develop-
ment. In brief, religion bequeaths to law the notion
of moral responsibility for man's interventions in the
regular course of nature and for impositions of his will
upon nature and society. It may or may not hold him
responsible for what he does in a state of divine mad-
ness, atē, karma, or fate. “Not I was the cause of this
act,” said Agamemnon, “but Zeus and the Erinys who
walks in darkness: they it was who in the assembly
put wild atē in my understanding, on that day when
I arbitrarily took Achilles' prize” (Dodds, 1957). A
modern pleader might say, “Not guilty because of
temporary insanity.”

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
(“Who unknowingly sins, knowingly makes

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.

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.

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.

Causation in Modern Law. In modern law, legal
personality has expanded to include almost all adult
human beings, but liability is curtailed in comparison
with the broad coverage usually attributed to primitive
law. Today, common learning states that defendant
cannot be charged with responsibility for a wrong
unless his conduct has physically caused the wrong and
unless the law deems this cause to have been proximate.
The use of the idea that among all the physical ante-
cedents of an event, one or a few may be discerned
as “proximate” is apparently due to medieval philoso-
phers, notably to Saint Thomas Aquinas. Its use in
English law is usually laid to Sir Francis Bacon: “The
law looks to the proximate, and not to the remote
cause” (In jure non remota causa, sed proxima spec-
tatur; Maxims,
Reg. I [1596]).

In the nineteenth century, English and American law
used the idea of causation, primarily in tort law, as
a means of restricting responsibility for the growing
rate of accidents and the large amount of property
damage accompanying the industrial revolution. In the
early cases, causation and other devices, especially the
doctrines of intervening cause, contributory negli-
gence, and voluntary assumption of risk, served to
relieve from liability many of those who in a simple
agricultural system would normally be held responsible
for loss of life or damage to property that resulted from
their acts. Naive ideas of physical causation alone
would have saddled growing industry and trans-
portation with most of the responsibility for the harms
flowing from these activities. It was in this emergency
that notions of proximate causation and intervening
cause were invoked, and harmful behavior which nor-
mally might be taken as the physical cause of injury
was increasingly held not to have caused the injury
“proximately” or not to have been a “substantial fac-
tor” in the injury or not to have been the “natural
and probable consequence” of the defendant's acts.
Hence arose the important distinction between physi-
cal causation and legal causation which has been the
subject of thousands of decisions in all the advanced
industrial countries and particularly in England and
in the United States.

The idea of physical causation has been enriched
by scientific learning on the nature of cause. In the
eighteenth century, the idea of physical cause and
effect as a phenomenon of probability made itself felt
in the law. Particularly in the matter of proof, the law
began to accept the notion that a given cause can never
unequivocally be assigned as the responsible agent of
an effect, but at best only a probability judgment can
be made. This learning was revived in the twentieth
century and cases and commentaries began to state
physical causation in terms of probability theory.

At best, physical causation came to be recognized
as only a conditio sine qua non of liability. If plaintiff
is unable to establish physical causation, then this view
holds he is subject to non-suit. If plaintiff does establish
physical causation, then he must go on to show that
the defendant's harmful conduct was the “proximate”
or “legal” cause of the injury. Causation in law thus
became a matter of legal policy, a device for selecting
out those chains of physical causation to which liability
would or would not attach. Causation in law came to
be frankly recognized as legal policy; not causation
at all but judicial policies respecting liability.

Examination of cases shows that for the same series
of acts, liability may be held to be based on causation
or not, depending upon whether the defendant is found
to have intended the harm, has been negligent, or is
innocent of any wrongful state of mind. This seemed
to show not causation, but a judicial policy of assessing
liability on the state of mind of the defendant rather
than on the chain of causation set up by his conduct.
Numerous other policies, such as liability for ultra-
hazardous activities, or for faulty products are cast in
terms of causation.

Contemporary learning on causation has a very ex-
tensive examination in a recent work called Causation


in the Law by H. L. A. Hart and A. M. Honoré. The
authors espouse the theory that causation in law is an
essentially nonphilosophical, profession-oriented de-
vice, heavily charged with common sense ideas on
current meanings of causation. Paradoxically, it takes
a philosophical theory (the “ordinary language” philo-
sophical outlook) to establish this thesis. The idea itself
is old, and arises not only from a general antiphilo-
sophical bias extant from Roman law times, but in the
nature of the case from the way in which philosophical
ideas become homogenized with a discipline that ab-
sorbs them. We should not take too seriously the pro-
testations of experts in the field of causation in law
that their special doctrines have little to do with phi-
losophy. “The lawyer cannot afford to adventure him-
self with philosophers in the logical and metaphysical
controversies that beset the idea of cause,” says Sir
Frederick Pollock (1887). However, we must remember
that it is the normal fate of philosophy as the parent
of the sciences to suffer repudiation by its children.

A very sophisticated formulation of the nature of
legal causation relying explicitly on the philosophy of
science is found in the work of Morris and Felix
Cohen (Cohen and Cohen, 1951). Of peculiar interest
is Felix Cohen's application of field theory and cultural
relativity to the notion of causation in law (1950).

Legal causation is concerned not only with the ques-
tion of who or what caused harm, but also with the
extent of harm to be attributed to the defendant's act.
A man's careless toss of an unextinguished match may
burn down an entire ship and her cargo. Since almost
all modern theory on legal causation has centered on
the law of negligence, the issue comes to be framed
as one of determining whether the defendant should
have foreseen that he was creating an unreasonable
risk of harm. This thought construct, “the reasonable
man,” is created and endowed with a set of physical,
psychological, and moral awarenesses and responses
that correspond to average opinion, as seen by courts
and commentators, on how a reasonably prudent per-
son of ordinary ability should conduct his affairs.

At times, this reasonable man turns out to be singu-
larly obtuse; at others he is charged with almost divine
prescience. Writers on legal causation attempt both to
shape the course of legal decision on the basis of a
rich conglomerate of causation theories, and, after the
fact, try to analyze out of the cases principles of deci-
sion which they offer as guides to future developments
of the law.

The law of negligence is the birthplace of all modern
sophisticated theories of causation. From there, the
theories diffuse throughout the rest of the law of torts,
thence to contracts, particularly on the question of
extent of damage to be attributed to a breaching de
fendant, and to the law of crimes, where, not the extent
of harm, but the relation between the forbidden harm
and the criminal conduct is the issue (Hall, 1947).

Conclusion. Millennia intervene between the death
of a boy accidentally impaled on a javelin hurled by
Olympic games athletes in ancient Greece and a mod-
ern spectator struck on the head by a flying puck in
a hockey arena. But the determination of legal causa-
tion is still as difficult in either case. Today the specta-
tor at the hockey game is said to have “legally” caused
his own harm by “voluntary assumption of the risk.”
The Greeks said the boy caused his own death by
running upon the javelin.

Modern doctrine attempts to ease the burden of the
individual human being immediately or directly caus-
ing injury by shifting loss on those more able to pay
or more likely to be able to pass the loss on by in-
surance and thence ultimately to the consuming public
in the form of higher prices.

Thus we see that while physical causation is still
thought to be basic, it is the notion of purposive causa-
tion, and of legal policy (the law's purposes) that mod-
ern lawyers think of when the idea of legal causation
comes to mind.


B. Cohen, Jewish and Roman Law (New York, 1966), Vol.
II, Ch. XVII, “The Principle of Causation.” F. S. Cohen,
“Field Theory and Judicial Logic,” Yale Law Journal, 59
(1950), 251-59. M. R. Cohen, The Meaning of Human His-
(LaSalle, Ill., 1947), pp. 105-61. M. R. Cohen and
F. S. Cohen, Readings in Jurisprudence and Legal Philosophy
(New York, 1951), pp. 233-68. T. A. Cowan, Essays in the
Law of Torts
(Newark, N.J., 1961), pp. 12-18. E. R. Dodds,
The Greeks and the Irrational (Berkeley, 1951). K. Engisch,
Die Kausalität als Merkmal der strafrechtlichen Tatbestände
(Tübingen, 1931). L. Green, Rationale of Proximate Cause
(Kansas City, Mo., 1927). Nicholas St. John Green, “Proxi-
mate and Remote Cause,” American Law Review, 4, No.
2 (Jan. 1870), 201-16. J. Hall, General Principles of Criminal
(Indianapolis, 1947), pp. 256-66. H. L. A. Hart and
A. M. Honoré, Causation in the Law (Oxford, 1959). W.
Jaeger, Paideia: The Ideals of Greek Culture, trans. Gilbert
Highet, 3 vols. (New York, 1939-44), Vol. I (2nd ed. 1945),
p. 158. J. W. Jones, The Law and Legal Theory of the Greeks:
An Introduction
(Oxford, 1956), p. 292. F. H. Lawson, Neg-
ligence in the Civil Law,
with Introduction (Oxford, 1950).
C. Morris, Torts (Brooklyn, 1953), Ch. VII. E. Nagel, The
Structure of Science
(New York, 1961), Ch. X. C. S. Peirce,
“Proximate Cause and Effect,” in Baldwin's Dictionary of
Philosophy and Psychology
(London, 1901-05), II, 373.
T. F. T. Plucknett, A Concise History of the Common Law
(Boston, 1956a); idem, “Law,” Encyclopedia Americana
(New York, 1956b), 17, 89. R. Pound, Jurisprudence, 5 vols.
(St. Paul, Minn., 1959), IV, 508-25, has extensive references.
W. L. Prosser, The Law of Torts, 2nd ed. (St. Paul, Minn.,


1955), Chs. 8 and 9. F. Schulz, History of Roman Legal
(Oxford, 1953), pp. 69, 135, 295. Saint Thomas
Aquinas, Summa theologiae, Ia, 14, 13. J. B. Thayer, Lex
(Cambridge, 1929). J. Wigmore, Select Cases on the
Law of Torts
(Boston, 1912), I, 764ff.


[See also Law, Ancient Roman, Common; Legal Respon-