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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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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


293

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).