An Academic Commentary On The Intellectual History Of Causation In Law

Causation, which is one of the most important subjects in human's cognition, is an inevitable problem in our study under the realm of natural science and philosophy. The more we know about the causation, the well we can understand the world. We even can make a conclusion that every scientific question boils down to the question of causation.Causation is also of great importance in legal field. There will be no obligation in torts or contract or criminal law without the test of causation, which is the bond between fact and legal responsibility and the prerequisite of the legal responsibility.But we must admit that causation is a very complicated question and resides in manifold cases, which cause great trouble in dealing with the issue of obligation. In order to solve this causation-conundrum, people in continent law and common law system have done hardy efforts for over a century. But up until today, none of the legal causation theories sprung up in the past century can perfectly solve this conundrum. Each theory, on one hand, reveals some nature of causation, but on the other hand, is confronted with the exception to which it is not applicable. So it is unnecessary for us to contrive new theory for causation. It is time to coordinate these theories and apprehend the fundamental nature of causation, so as to reveal the kernel of this puzzle and offer a suitable approach to handling the issue of obligation.It is for only one hundred year or more that people have study legal causation problem comprehensively. But the concept of causation has come to existence in the age of Roman law and ancient common law. In Roman law, the causation was depicted as"In jure non remota causa, sed proxima, spectator"that means what we need is not the remote causation but the proximate one, which obviously correlated causation with obligation tightly and clarified the proximate causation was the only suitable one when imposing legal obligation. Francis Bacon has made profound comments about legal causation in his famous book——the maxims of law——published in 1596, which was the first treatise about causation in common law history. In this book he indicated that only the direct causation is practicable in law field.In the industrial era, Torts enjoyed a remarkable development, which led to the progress of the causation theories to which the issue of obligation that is an important factor in torts law is close related. But those causation theories were imbued with conceptualism which is the magisterial school before the 20th century.The theories about torts in common law influenced by conceptualism have produced lots of theories about legal causation, among which are these main theories such as condition sine qua none,probable or nature result,substantial factor and direct result and apparent safety. Necessary condition, which is described as"condition sine qua none"in civil law or"but-for rule"in common law, is considered as the common standard when judging the existence of the legal causation. There is a classic formula in necessary condition theory that is"the plaintiff could have not suffered the damage but for the infringement of the defendant"which means the legal causation exists only when the infringement of the defendant constitutes the necessary condition for the plaintiff's damage. The theory of"probable or nature result", which is first proposed by Bohlen, one of the famous scholar in torts, in 1901, figures out that those who do wrong would only take responsibility for the damage that is probable or nature. And"substantial factor theory", built up by professor Jeremiah Smith in 1911, which was of great significance in America law history and adopted by"The Restatement of Tort Law"and"The Second Restatement of Tort Law"as the fundamental doctrine in judging the existence of legal causation, indicates that the standard of legal causation is whether the action of defendant constitutes the substantial factor leading to the damage of the plaintiff. And professor Beale was the first person comprehensively expounded the"direct result"and"apparent safety"theory. He figured out that"direct result"means the legal result should be confined to the proximate one which is immediate both in logic and in cause-result sequence, while"apparent safety"means when the defendant's positive action contributes to apparent safety situation, the court usually would stop imposing duty on him. But Professor Edgerton criticized Beale's theory severely and systemically. Their argument marked a significant event in the history of American Torts law. On the basis of his criticism of Beale, professor Edgerton proposed a new standard named"The Average justice felling", and he insisted that the justly attachable cause is the only criterion in judging the proximate cause.Beside the condition theory that is similar to the"condition sine qua none theory"in common law, the continent law, which is under the reign of conceptualism for a long time, has two more important causation theories called"adequate causation"and"the purpose of statute". In"adequate causation theory", causation consists of two factors. One is that the incident should be an indispensable condition, which is just necessary condition, of the damage; the other is this incident materially fortifies the possibility of the occurrence of the damage. Von Kries, who proposed the"adequate causation"theory, pointed out that indispensable condition or other necessary condition is about causation, while the adequacy is about inadequacy or contingency which should be assessed in individual cases rather than according to universal doctrine. This theory exerted a profound influence to the member countries of the continent law system, such as Japan, Korea, and Taiwan region of china where it is regarded as the mainstream. But indeed, the estimation of adequacy in adequate causation theory is kind of arbitrary which would cause the abuse of law. To rectify this limitation, a new theory named"the purpose of statute"was produced which is aimed to strictly limit the use of law. This theory put forward an idea that compensation depends on the purpose of statute because of two essential reasons: for one thing, whether a person should take responsibility for the damage is actually a legal question which needs to be answered by the purpose of law; for another, the content of adequate causation theory is so arbitrary that it is difficult to calculate the suitable compensation. The"purpose of statute theory"emerged in the 1940s while scholar in common law has used the similar theory with proficiency early in 1909.Legal realism, opposed to the conceptualism during the intellectual history of law and developed both in America and Europe, has brought brand-new concepts into the torts law and produced some special legal causation theories. The most seminal one was proposed by Professor Leon Green, the famous pioneer in the legal realism campaign in America. He pointed out that causation used as a legal conception should be considered only in the first stage of the investigation, which is the fact-investigation. And he insisted causation was only about sheer fact. The other factors or functions of causation in common understanding actually belongs to the task of stage two—make certain the suitable bound of the compensation, which was not supposed to be called"causation"according to its nothing-about-fact nature. In the theory of legal realism, the first stage when investigating a case is so-called fact-investigation, of which the task is explore the existence of causation, while the second stage is so-called legal-investigation, of which the task is impose responsibility according to law. Beside Leon Green, Fleming James also stands for legal realism when systemically studying his"foreseeability theory". Professor Rosco.Pound, with a clear aim to replace statute explanation by public policy, even take"general social safety"as the standard of the estimation of causation. Jurisprudence of economic analysis, which has made contribution to the development of legal realism, also takes the same position on legal causation issue.After 1950s, Jurisprudence of conceptualism impacted by the legal realism campaign has developed into new jurisprudence of analysis, of which Hart is a representative scholar who has also contributed a lot to legal causation conundrum. Hart and his colleague Aonore proposed a new theory about causation which has a broader bound about causation. This is a synthetic theory which has combined technique of conceptualism and the policy of legal realism and coordinated the logic and the fact and the policy. Also, Hart and Aonore put emphasis on the importance of common sense in estimating causation, which is the reason why their theory is also been named"common sense causation". Later, Richard Epstein further classified legal causation into four categories named"causal paradigms", that is strength,fright,force and dangerous condition, and Epstein was confident that these four categories can solve all legal causation problems. Professor Richard W. Wright, who is a splendid scholar in jurisprudence of conceptualism, further develops the NESS doctrine in estimating causation proposed by Hart and Aonore. His theory which is affected by both conceptualism and legal realism is so comprehensive and material that almost cover all the causation cases thus far.The purpose of studying history is to give us guidance on our life and research. With the review of all the causation theories in the history, we can make some basic conclusion. Firstly, the so-called fact in law field is actually the subjective fact which is on the basis of the judge's own examination and judgment about the evidence. We even can say that, in law field, every"fact"is subjective and there is no objective fact. Secondly, because of the limitation in human's ability, no evidence can reproduce the real fact or event, which means that the deviation from the real fact is inevitable. So the so-called legal causation is just an inexact and subjective reflection of the objective cause-result in human's mind. Since that the objective fact is beyond human's perception, the issue of obligation is supposed to depend on public policy. By virtue of human's psychological custom to pursue fairness and equity, the consideration of the public policy always embodies the extensively accepted moral criterion, which is the basic reason why fault is a fundamental factor in the consideration of obligation.