Notre Dame Law School NDLScholarship Natural Law Forum 1-1-1961 Books Reviewed Roger Hancock Felice Battaglia Edgar Bodenheimer Thomas Broden Jr. Follow this and additional works at: http://scholarship.law.nd.edu/nd_naturallaw_forum Part of the Law Commons Recommended Citation Hancock, Roger; Battaglia, Felice; Bodenheimer, Edgar; and Broden, Thomas Jr., "Books Reviewed" (1961). Natural Law Forum. Paper 66. http://scholarship.law.nd.edu/nd_naturallaw_forum/66 This Book Review is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Natural Law Forum by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. BOOKS REVIEWED CAUSATION IN THE LAW. By H. L. A. Hart and A. M. Honor6. Oxford: The Clarendon Press, 1959. Pp. xxxii, 454. 55s. In this work Professor H. L. A. Hart, well known in Britain and America for his work in legal and moral philosophy, has collaborated with A. M. Honor6 in a careful and comprehensive study of causality in legal theory and practice. The authors have worked on the subject a number of years, earlier versions of some parts having appeared in joint articles in the Law Quarterly Review (1956). The authors have two main aims: (1) to explain our ordinary "common sense notions" of causality and show how these notions are widely used in law, and (2) to examine and criticize a "whole trend in legal thought" concerning causality, especially influential in the United States, which seeks to clarify and simplify the concept of causality. The two aims are closely related. In explaining ordinary notions of causality and showing their use in law the authors are (in part) trying to answer the objection that traditional ways of thinking about causality are hopelessly obscure or otherwise inadequate, and must be drastically revised. And in criticizing the modem theories the authors are trying to show that these theories blur or ignore important principles and distinctions embedded in our ordinary ways of thinking and recognized by courts. This is not to say that the authors completely reject the modem theories in favor of any tradi- tional theory of causality. They agree that much of the legal discussion of causality in the past has been "clouded over by metaphor." And in some ways they consider the modem theories a real advance. (In the following discussion I will try to show how far the authors go in admitting one basic clarification urged by the modem theorists, namely, the "bifurcation" of causal issues into factual and normative questions.) But in general spirit the work is conservative and cautionary, confident that common-sense notions (properly understood) can guide legal decisions, and suspicious of attempts to revise these notions radically in favor of allegedly scientific theories. In the following discussion I shall try, first, to summarize the argument of the book. Secondly, I shall consider some problems in the authors' analysis of ordinary causal concepts. And third, I shall comment on the criticism of the recent (American) theories of causality. Part I ("The Analysis of Causal Concepts") opens with a critical discussion of the analysis of causality in Hume and Mill (ch. 1), moves on to a dis- cussion of ordinary concepts of causality and responsibility (ch. 2 and 3), and NATURAL LAW FORUM discusses critically the modern theories. The central purpose of this Part is to analyze ordinary notions of causality; these are contrasted, on the one hand, with the philosophical theories of Hume and Mill, and on the other hand with the modern theories. The authors begin, in Ch. 1, by asking why lawyers have found the "phil- osophical discussion of causation" unhelpful. And the answer is, roughly stated, that philosophers traditionally have been concerned with causality in science, largely ignoring problems of causality in practical and moral contexts. To be sure, in examining philosophical theories of causality the authors consider only Hume and John Stuart Mill - in part, of course, because of their very great influence in modern philosophical discussions of causality, but also, perhaps, because the authors feel that a helpful philosophical discussion of causality is to be found, if at all, in empiricist philosophers such as Hume and Mill. One could argue, indeed, that if a philosophical theory of causality is to be helpful to lawyers it must be an empirical theory to this extent: it must define "causality" in such a way that statements asserting a causal relation can be supported or refuted by ordinary factual evidence. Presumably the problem of causality in the law is, in part, the problem of picking out the cause from among all the antecedents of an event: to be useful, a theory must give guidance to this pro- cess. It goes without saying that theories such as that of Leibniz, who held that "in metaphysical rigor" there are no causes at all but only concomitants, or F. H. Bradley's theory that the notion of causality is self-contradictory, are ir- relevant to law. A more interesting case is Kant's theory of causality. For Kant, causality is strictly a scientific concept, applicable exclusively to physical pro- cesses. Hence, as the authors point out in a later section, German legal theorists attempting to use the Kantian theory are forced into a curious position, name- ly, that "in considering whether a human actor has caused harm only the actor's physical movements may be regarded as relevant, not his state of mind: once it is found that such movements were the cause of harm the question whether the act was deliberate, mistaken, or accidental is relevant only to the question of fault or mens rea."l But even as applied to physical processes, Kant's theory does little to guide particular causal investigations. The authors praise Hume and Mill for having "swept away much lumber" traditionally encumbering the notion of causality, such as the notion of "un- observable forces or powers," and for having noticed that there is an intimate connection between particular causal judgments and generalizations asserting an invariable sequence. And Mill, in particular, is commended for noticing the ordinary distinction between the cause and other factors which are merely "neces- sary conditions." Mill's analysis is given a sympathetic treatment but criticized on several counts. The two most important objections are the following. (1) Mill (following Hume) was justified in stressing the rtle of generalizations asserting regular sequence; in many cases when we say that A caused B, part of our meaning is that events like A have invariably been followed by events like B. When we say that the sun warmed the stone - that this is a case of propter hoc and not simply post hoc - part of our meaning is that invariably in our ex- 1. HART and HONORi, CAUSATION IN THE LAW 385 (1959). ROGER HANCOCK perience bodies exposed to heat become warmer. But Mill overstated the case; there is a type of causation where generalizations do not play this r6le. These are cases of "interpersonal transactions" as the authors call them, cases where we say that a person caused another to act in a certain way by persuasion, threat, inducement, etc. Suppose A threatens to shoot B unless B gives over his money, which B then does. We should say that A made B give over his money, but in saying this we do not mean that in similar cases B, or anyone else, in- variably gives up his money. (2) Mill (again following Hume and the tradi- tional philosophical discussion of causality) concentrates on "explanatory con- texts" where, given an event, our search for the cause is a search for some un- known factor. But this ignores the "attributive inquiries" frequent in law - contexts where we know all the factors and in a sense clearly understand how an event happened, but are puzzled as to whether this or that factor is the cause. (This distinction prefigures the authors' later discussion of the "bifurca- tion" of causal questions.) In Ch. 2 the authors attempt a kind of reversal in the analysis of causality by treating everyday human actions as the starting point; the "central" or "basic" meaning of causality is found not in the language of science or in the demands of metaphysical rigor, but in the everyday language in which people are said to "push, pull, bend, twist, break, injure" things and other persons. From this basic meaning others are derived by analogy or metaphor. Two of these de- rived meanings are especially relevant to law: (1) "causing" in the sense of inducing, persuading, threatening, etc., someone to act, and (2) "causing" in the sense of providing or failing to provide an opportunity, as in causing a loss by carelessly leaving the door unlocked and thus allowing a theft to occur, or caus- ing loss to a manufacturer by failing to deliver the machinery as promised. In Ch. 3 the authors embark on a discussion of responsibility and raise the im- portant question of how we set limits to the consequences of an act, limits be- yond which we no longer consider the agent as the cause and hence as responsible. Chapter 4 introduces the modem theory, held in the most radical form by Leon Green. As the authors describe it this theory asserts that the question "Did A cause B?" means (if it is clear) two things: (1) would B have hap- pened if A had not acted as he did? (the sine qua non test) and (2) should A be held responsible or liable for B? The first question is considered to be a straightforward factual question, while the second is considered to be a "policy" question to be decided by appeal to legal policy, justice, or expediency.