- Eric Allen Engle1

Instant global communication and world-wide trade and travel have broken down legal barriers despite historical and linguistic differences in differing legal systems leading to a remarkably uniform globalized system of tort law. The common law and civil law of torts reach similar results because they must address and resolve the same basic fact patterns. However, the parallels between the common law and civil law of tort are much greater than mere factual convergence: the same legal theories appear in each system, notably Aristotelian concepts of causation, as well as foreseeability, the adequacy theory, and economic analysis of law. More often than not, even the same basic blackletter rules of tort liability are found in common law and civil law. Similar fact-patterns and the same basic theories led to the development of strikingly similar rules in both the common law and civilianist tort, even in a field of national law and even in a field where the facts are inevitably indeterminate. This paper shows how common law and civilian law of tort converged to common outcomes both de facto and de jure drawing on laws and concepts from the U.S., Germany, Estonia, and France.

1 Dr.Jur. Eric Allen Engle, JD DEA LLM works as a research aid to Prof. Duncan Kennedy at Harvard Law School Email: [email protected]

Electronic copy available at: http://ssrn.com/abstract=1424693




Instant global communication and world-wide trade and travel have broken down legal barriers despite historical and linguistic differences in the differing legal systems. The result? A remarkably uniform globalized system of tort law. The common law and civil law of torts reach similar results because they must address and resolve the same basic fact patterns. However, the parallels between the common law and civil law of tort2 are much greater than mere factual convergence: the same legal theories appear in each system, notably Aristotelian concepts of causation, as well as foreseeability, the adequacy theory, and economic analysis of law. More often than not, even the same basic black-letter rules of tort liability are found in common law and civil law. This contentious conclusion of rule convergence is compelled by an observation of the basic black-letter rules in both systems. Similar fact-patterns and the same basic theories led to the development of strikingly similar rules in both the common law and civilianist tort, even in a field of national law and even in a field where the facts are inevitably indeterminate.

Tort law is the doctrinal (superstructural) expression of material facts, notably the relationships of productive forces - economic actors and actions. The law of tort seeks to rationalize, justify and explain the relations of production.3 Convergence of tort law is an emergent property of the global legal system, a demonstrable confirmation of a weak version of Gunther Teubner's thesis that law is a self-organizing system4 and of Volkmar Gessner's thesis that legal certainty is an emergent property of legal systems5 Emergence is the idea

2See H.L.A. Hart and Tony Honoré, Causation in the Law at 441 (Oxford, Clarendon 2002). H.L.A. Hart chances across these but doesn’t seem to inquire into the reasons or extent of that convergence.

3For an expose and critique (in my opinion, unconvincing) of the base-superstructure distinction see Duncan Kennedy, Antonio Gramsci and the Legal System, VI ALSA Forum 1, 32 (1979) online

a t h t t p : / / d u n c a n k e n n e d y . n e t / d o c u m e n t s / P h o t o % 2 0 a r t i c l e s / Antonio%20Gramsci%20and%20The%20Legal%20System.pdf (visited Sept 1, 2009).

4See Gunther Teubner, Law as an Autopoietic System (Oxford Blackwell 1993) (Zenon Bankowski, ed.)( Anne Bankowska and Ruth Adler, trans).

5See Volkmar Gessner, Emerging Legal Certainty: Empirical Studies on the Globalization of Law

(Aldershot Ashgate 1998).

Electronic copy available at: http://ssrn.com/abstract=1424693

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of those spontaneous coherent structures emerges naturally from processes. Evolution itself is a good example of emergence: stronger more adaptive species survive, weaker ones do not. Autopoeisis and emergence clearly are characteristics of globalized tort law. Unlike Duncan Kennedy6 and, I believe, like Teubner,7 I do not take the position that law is autonomous or even relatively-autonomous to other social sciences or the economic base on which legal superstructures are built. Rather, global convergence of national private law of tort tends to confirm that law (superstructure) and market (base) are in a dialectical relation. The observed facts of emergent legal convergence however do not prove or disprove the hypothesis that base generally determines superstructure: both the productive forces (base) and the rationalizing justificatory superstructure lead to the same outcome - convergence of distinct private law systems.

The autonomy of interpretation of different national laws or different legal systems is axiomatic. So how did a remarkably uniform globalized tort law come into being -- in the absence of any central dictates such as those often recommended by the European Union toward harmonization of different national laws?

A. Practical Bases of Convergence of Different Legal Systems to Common Rules and Outcomes

Legal convergence is the idea that different legal systems converge to common outcomes, and even common rules, as a result of increased communications, comparative law, and the fact that the underlying problems facing any legal system are similar or even the same. To explain the rise of the remarkably uniform globalized system of private tort law one might be tempted

6See generally Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought,

55Hastings L J 1031 (2004), online at http://duncankennedy.net/documents/ The%20Disenchantment%20of%20Logically%20Formal%20Legal%20Rationality.pdf (visited Sept 20, 2009).

7See generally Gunther Teubner, Breaking Frames: Economic Globalisation and the Emergence of Lex Mercatoria, 5 § V in Eur J Social Theory 199, 217 (2002).

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to point to the common Roman law origins of both the common law8 and the civil law. Saxon custom was after all "only" unwritten ius commune and always existed in parallel with Roman/Royal central written law. But that argument only goes so far. After all, Roman law never had to deal with the problems of industrial production and the various injuries produced by assembly lines, automobiles, or hazardous chemicals. I argue that the rules evolved towards convergence only in part from common historical origins and philosophical concepts. Common law and civil law converged de jure and de facto for mostly practical reasons such as the revolution in communications and transportation. That is, here, the economic base and the justificatory superstructure both led to legal convergence. Hence, the global convergence of tort law neither proves nor refutes the autonomy or dependence of the legal superstructure with respect to the economic base (forces of production).

1.De Jure Convergence

De jure legal convergence -- in a field of great factual uncertainty -- arose due to greatly increased communication which led to more and deeper comparison of legal theories and problems between the two major secular legal systems. Increased communication enabled legal scholars first to compare foreign doctrinal theories in legal scholarship and then even the opinions of their judges in the cases. Ultimately, the judiciary also took up comparative methods. At the same time, de jure convergence also arose out of the logical desire to reduce transaction costs by creating legal certainty so that producers and consumers would face roughly similar expectations and outcomes anywhere they choose to do business in the globalized marketplace.

2. De Facto Convergence

De facto, common law and civilian tort law converged because the same basic fact patterns are the basis of the cases whether in common law or civil law

8 See generally Encyclopedia Brittanica, Common Law (2009) online at http:// www.britannica.com/EBchecked/topic/128386/common-law/40224/The-origin -of-the- common-law (visited Sept 10, 2009).

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-- each system faced factually similar problems. Increased trade and social interaction also led to de facto legal convergence because constantly recurring fact patterns and transnational torts required solutions, preferably uniform solutions.

B. Theoretical Bases of Legal Convergence

Theoretical explanations for the convergence can be found in economic theory and philosophy. We can best understand the convergence of theories of causation in tort law by considering the policy goals which the now globalized tort law seeks to fulfill. Tort law is a mirror of economic policies. Economic policy seeks to use law to protect existing wealth and where possible to permit and encourage the creation of new wealth. Convergence in tort law also arose out of common philosophical ideas about causation. Just as the legal imputation of causation reflects economic ideas, the factual determination that an event did or did not result in a legally imputable damage is a mirror of philosophical ideas about causation. Together, economic and philosophical perspectives on causation in tort rationalize and structure the legal system and explain how tort law has converged into an essentially globalized system with strikingly similar rationales, rules, and outcomes whether in the global center in countries such as the U.S., France, and Germany or in the global periphery in countries like Estonia.

C. Examples of Converged Rules

Examples of the convergence of tort law are seen wherever one compares common law and civil law. For example, natural restitution and specific performance are special remedies; the ordinary remedy is money damages; the objective of tort law is to restore the status quo ante - and that is all true whether in common law or civil law. Causation, too, is treated similarly both in common and in civil law. First, we examine to see if there is the necessary factual causation and then, if factual causation is found, we then look to see whether

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there is also sufficient legal causation, generally using theories of foreseeability9 which in turn usually rely on economic cost-benefit analysis. The distribution of the burden of proof in both common law and civil law is also remarkably similar: plaintiffs generally bear the burden of proof, though this burden shifts rebuttably upon presentation of prima facie evidence. Likewise, defenses to the existence of the tort must be proven by the defendant in both common law and civil law. The proof of damages similarly is on the shoulders of the plaintiff, just as exonerations from the damage must be proven by the defendant in both systems. Pure economic losses are generally not admitted as a basis for compensation in tort10 in both the common law and the civil law. This list of close convergences could be easily expanded.

The question isn't so much where the common law and civil law reach the same results, or even when they use the same rules or theoretical justifications. Rather the question is where they diverge. The most immediately evident example of lack of de facto harmonization of globalizing tort law is punitive damages. Punitive damages are generally rejected in the civil law but remain a key feature of U.S. tort law. Punitive damages are rejected in the civilianist systems because the purpose of tort law is prevention and compensation, not punishment. Punitive damages still exist in the U.S. but have been rejected by other common law countries. Punitive damages lead to over-litigation by over- compensating the injured party and result in over-litigation in the U.S. -- the proverbial "ambulance chaser". I predict, and hope, that punitive damages will gradually be legislated out of existence in the common law. Tort law is simply inefficient as a form of social insurance and should be supplemented by mandatory insurance schemes, whether administered privately, publicly or in a mixed public-private partnership. Punitive damages in fact function as a hidden (over) compensation to lawyers and thus would be better done away with and replaced with costs and fees born by parties as, the “English rule”. A

9 See Hart and Honoré, Causation in the Law at 254-290 (cited in note 2). 10See Hart and Honoré, Causation in the Law at 309 (cited in note 2).

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related divergence is the question of court costs and lawyers' fees. In the civil law the losing party ordinarily pays the court costs and fees, whereas in the U.S. common law each party ordinarily bears their own costs.


Causation is one of the most complex and unclear aspects of tort law. However, common law and civil law reach surprisingly similar legal solutions about the problem of causation despite the fact that the problem of causation in tort law is, at least in theory, factually indeterminate. Legal convergence in tort law was not merely a pragmatic result of economic facts. It was also implicit in common philosophical presuppositions about causality in national law which influenced tort law in both common law and civil law countries and provided the basic superstructural framework for legal convergence.

Aristotle describes four types of causation and is taken as the starting point because it is the historically earliest well known study of causality.12 Formal cause, material cause, efficient cause and final cause. We see each of these types of causation in both common and civil law of tort. Aristotle's four-fold conception of causality seems the best theoretical basis to rationalize the fact of legal convergence of common law and civil law of tort in practice. The common law and civil law started from common concepts of causation and then iterated those concepts through similar economic and policy filters all the while comparing each other's rules and theories more and more intensely due to radically intensifying trade. The result was a remarkably uniform globalized tort law. A common philosophical base, projected through similar economic concepts, harmonized de facto in by commerce and communication, and de jure by more-and-more intensive comparative legal theory explains the rise of a globally harmonized private law, even in an area of fundamental factual uncertainty.

11For an extensive survey of essays on Aristotle in law see Richard Brooks & James Murphy, Aristotle and Modern Law, (Dartmouth Ashgate 2003).

12Aristotle Metaphysics, 1.3.11.

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A. Aristotle's Formal Cause: The Form of Action, here, Tort

Aristotle defines formal causation as the structural shape (form) of the cause.13 In common law we see the concept of formal cause reflected most clearly in the common law forms of action - the writs.14 That is, the formal cause is the tort in its entirety, i.e. all the elements of the cause of action in whatever form one brings: historically, trespass on case, trespass vi et armis, etc.; today, strict liability, negligence, intentional tort -- i.e. the different theories of liability. Of course, the civil law, like the common law, structures law as formulae (logical sequents) and models proofs of law on Euclidean geometric theorems.15 This can be seen in the idea, whether in common law and civil law, that each cause of action consists of a variety of elements to be proven on the basis of various legal axioms and postulates16 (e.g. actori incombit probatio). Common philosophical and methodological assumptions helped to generate global legal convergence in tort.

1.Elements of a Tort.

The formal definition of tort in the common law is: a) the existence of a legal duty and b) the breach of the legal duty owed to the plaintiff by the defendant, b) which in turn factually and c) legally caused e) a resulting damage to the plaintiff -- duty, breach, cause in fact, proximate cause, and damages - with f) any defenses to plead and proven by the defendant. In logical terms: a*b*c*d*e*(-f) = T. In this notation * is the functor of conjunction, - is negation and = is strict implication.

13Stanford Encyclopedia of Philosophy, Aristotle on Causality, First published Wed, Jan 11, 2006; substantive revision Tue, Apr 22, 2008 online at http:// plato.stanford.edu/entries/aristotle- causality/ (visited Sept 21, 2009).

14See F. W. Maitland, The Forms of Action at Common Law, (1909) online at: http://www.fordham.edu/halsall/basis/maitland-formsofaction.html (visited Sept 11, 2009).

15Richard K. Neumann, A Preliminary Inquiry into the Art of Critique, 40 Hst L J 725 (1989). (“law school teachers often bemoan students’ inability to organize their thoughts into the type of argument that, like a Euclidean proof, substantiates each sub-conclusion in a logical progression until the ultimate conclusion becomes inevitable.”).

16The moving party bears the burden of the proof.

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In civil law a very similar structure reveals itself with the key elements being: a wrongful/negligent act, which legally and factually causes the damages to the defendant.17 So, for example, according to the Estonian Law of Obligations, general legal liability in tort arises from;

i.an objective fact pattern (Sachverhalt; Objektiivne teokoosseis) which is

ii.a breach of the law

iii.and which is wrongful (whether negligent, intentional, or due to strict liability).18

Which also are the elements of tort in French law.19

Just as in the common law, each element of the tort must be proved by the plaintiff successively. If any element of the tort is absent then the defendant is not liable. The general principle of law, actori incombit probatio is found both in the common law and in the civil law. Although, perhaps the question of duty is divergent, since the common law generally presumes there is "no duty" absent a social relation based on formal status (the historical view) or a contract (the contemporary view). However both are now subsumed under the concept of foreseeability (that the plaintiff knew or should have known that they ought to have acted toward the plaintiff as a reasonably prudent person).

2. Tortuous Act - (Tatbestand, Teo õigusvastasus).

A key element in the civil law of tort is a wrongful act which is the basis of damages. The act must be wrongful that is there must be some sense of fault (faute20, Schuld, süü).

17§ 823 Schadensersatzpflicht (1) Wer vorsätzlich oder fahrlässig das Leben, den Körper, die Gesundheit, die Freiheit, das Eigentum oder ein sonstiges Recht eines anderen widerrechtlich verletzt, ist dem anderen zum Ersatz des daraus entstehenden Schadens verpflichtet.“

18Estonian Law of Obligations, Chapter 53. §§ 1043-1055.

19See generally Stefanie Kleinmanns, née Samland, National legal systems on tort liability, Jurawelt (2001), online at http://www.jurawelt.com/studenten/ skripten/eur/6891 (visited Sept 15, 2009).

20Art 1382, Code Civil Francais, Créé par Loi 1804-02-09 promulgée le 19 février 1804.

(“Tout fait quelconque de l”homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé à le réparer.” (All acts whatsoever of a person which cause damage to another obligate the person who is at fault to repair the damage to the injured party). (Fault based liability)).

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3. Fault

Fault as an element of tort in civil law consists of two branches:

(i)Objective fault (failure to comply with the legal norm)

(ii)Subjective legal capacity to be at fault (legal capacity;


Thus, for example, the tortuous acts of the insane and small children do not give rise to the legal liability because they do not have the subjective capacity to be at fault. Objective fault (usually, negligence) is the breach of the law. Subjective fault is the capacity of the tortfeasor to know that the act was wrongful; the tortfeasor knew or could (not should) have known that the act was wrongful -- awareness, or ability to be aware of the legal obligation.

The forms of objective fault are the same in common law and civil law -- intent (Vorsatz, tahtlus), negligence (Fahrlässigkeit, hooletus), and strict liability.21

If the tort itself is the formal cause of action what about the other three elements of Aristotle's causal scheme Aristotle's conceptions of material cause (causa materialis) and efficient cause (causa efficiens) both appear very clearly in common law and civil law alike. The question of causation in torts, whether in common law or civilian law, consists of a two step analysis corresponding exactly to the Aristotelian distinction between material and efficient causation: Factual causation (haftungsbegrundende kausalitaet - faktilise kausaalseose) and legal causation (haftungsausfuellende kausalitaet - normatiivse kausalseose tuvastamine). Each of these types of causation corresponds to one of the Aristotelian types of causation. Cause in fact (causa condicio sine qua non) is Aristotle's material causation -- the "but for" causality.22 Legal causation, sometimes quite properly called "efficient" causation or a bit less

21See, for example, Estonian Law of Obligations, § 104.

22See Hart and Honoré, Causation in the Law at 109-121 (cited in note 2).

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accurately "proximate" cause is Aristotle's causa efficiens23 -- the event most recent in time without which this particular damage would not have arisen. We now look at each of these types of causation in tort.

B. Aristotle's Causa Materialis: Cause in fact - Conditio sine qua non formel

Several synonyms to express the same concept exist to express different forms of causation in the common law and civil law alike. The common law refers to cause in fact, factual cause, and causa sine qua non, all of which are synonymous and indicate that which Aristotle called material cause. The exact same concept of factual causation exists for example in German law where it is known as haftungsbegrundende Kausalität, and, synonymously as condicio sine qua non formel -- "but for causality". In Estonian law too the same concept exists and is expressed with synonymous terms faktiline kausaalseos or vältimatu tingimus (factual cause; inevitable pre-condtion).

The essential idea of factual causation is that the act in question was, as a matter of fact, a necessary event without which the damage would not, in fact, have arisen -- a cause, in fact. Of course, the chain of causation can be traced back infinitely, and so there are many factual causes of any tort. At the same time however, there are also other events which are clearly not factual causes, and in all events the determination of the cause in fact does not necessarily lead to the finding of legal liability. The cause must not only be a necessary precondition it must also be a sufficient condition, that is the legal, i.e. efficient cause.

C. Aristotle's Causa Efficiens: Proximate cause/ legal cause/ Efficient Cause (Haftungsausfüllende Kausalität; Normatiivne kausaalseos)

In the case of proximate cause, again, we see several synonymous terms used in all the legal systems to indicate that which Aristotle designated as causa efficiens -- legal cause. In German law this is called Haftungsausfüllende

23 Id at 438.

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Kausalität . In Estonian law too the concept exists and is referred to as normatiivne kausaalseos.24

The idea of factual cause is that the cause of damages must have been a necessary cause that is, a cause without which the damages would never have resulted. At the same time, the idea of legal cause is that the cause of damages must also have been sufficient -- that is, the cause must have been on its own adequate to generate the damages. That is, by using Aristotle's concepts of causa materialis (necessary causation) and causa efficiens (sufficient cause) we can avoid much of the supposed indeterminacy in contemporary legal thinking about tort law.

Legal causation, like factual causation, is found both in common law and civil law and is correctly called causa efficiens in both systems -- Aristotle's idea of efficient causation appears in the law here. Historically there was theoretical divergence in the treatment of legal cause in the common law and the civil law. However, the theories underlying the rules of legal causation are clearly converging and this is sketched below.

1.Individualizing Theories.

Historically, civil law differentiated between generalizing theories of legal causation and individualizing theories. Individualizing theories were essentially split, in turn, between preventive theories which looked retrospectively at causation, and contrasted those with possibility theories which look at causation ex ante. 25Individualizing theories are on the decline in the civil law26 and do not appear to have influenced the common law.27

24See, for example, Hent Kalmo, How Comparable are Legal Concepts? The Case of Causation.-

Juridica International at 45-54, (2006).

25For individualizing theories see Hart and Honoré, Causation in the Law at 431-464 (cited in note 2).

26Hart and Honoré, Causation in the Law at 477 (cited in note 2).

27See generally Margus Kingisepp, Causal theories and the law of obligations, at 154-160 (Juridica Abstract No 3 2003).

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a)Inevitability Theory (necessary cause).28 Inevitability theory, an individualizing theory, argues that the cause must have somehow inevitably led to the damages. The inevitability theory asks whether, in concrete terms, the condition inevitably increased the likelihood of the occurrence of the tort. That seems to be merely a reiteration of the cause-in-fact inquiry - which explains the decline of the inevitability theory (necessary causation) as a justification for the determination of legal causation.

b)Possibility Theories. Possibility theory takes the perspective of the situation ex ante, i.e. prior to the tort. Again the inquiry is whether the behavior of the tortfeasor objectively increased the probability of the injury. Its' similarity to the inquiry into cause-in-fact explains why it is less and less relied upon as a theory for liability.

2.Generalizing Theories

Rather than looking at the behavior of the individual to determine whether

legal causation obtains, generalizing theories look at the tort law as a system in the society as a whole. Generalizing theories29 can be considered as associative, correlative, and probabilistic; they look to a general correspondence between the act and the consequence. The best considered generalizing theories rely on the idea of David Hume that we cannot prove a cause deductively due to the nature of reality -- just because all observed crows have been black does not mean that the next observed crow will also be black. Thus, rather than causation, Hume speaks of correspondence, the idea that causation doesn't really exist, only 100% observed correlations. Hans Kelsen implicitly takes up this view and argues that we ought to we speak of causal imputation30 rather than cause because the legal conclusion is just that -- a legal conclusion, not an

28See Kalmo, 1 Juridica International at 45-54 (cited in note 24).

29For generalizing theories see generally Hart and Honoré, Causation in the Law at 465-497 (cited in note 2).

30Hans Kelsen, “Causality and Imputation” in What is Justice? Justice, Law and Politics in the Mirror of Science, Collected Essays by Hans Kelsen 347 (Berkeley/Los Angeles 1957).

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inevitable natural factual effect. Legal liability is an imputed consequence of an observed pattern where we presume future observed sequences of action and consequence will continue to reflect past observances.

The two leading generalizing theories are the normative goal theory, which is falling into disuse and the theory of adequacy, which has emerged as the dominant theory of legal cause.31

a)Normative goal theory.32 The theory of the norm's goals (Normzweck; normi eesmärgi teooria)33 is a generalizing theory. According to the theory of the norm's goals, a cause is considered adequate (that is, will be legally imputed to the tortfeasor) only where holding the tortfeasor liable for breach of the norm would in fact serve the purposes which the norm seeks to fulfill. De facto, though not under that name, the normative goal theory is taken up in the common law under the rubric of policy analysis and teleology -- though I have not seen the term for this theory of civil law used in the common law. The normative goal theory seems to be of declining importance in the civilianist legal system.

b)Adequacy Theory (Adäquanztheorie, Adekvaatsusteooria). Civil law's influence on the common law. The best known generalizing theory is adequacy theory, a theory which originated in civil law and which has since been admitted by at least some common law courts as a basis for determining proximate causation in common law.

For adequacy theory (Adäquanztheroie) the essential question is whether the defendant's act increased the likelihood of the objective occurrence of the damage. The causal adequacy must be intellectually calculable -- that is, the causal adequation must be reasonably foreseeable -- and here appears, in civil law, the noted common law concept of foreseeability.

31See generally Hart and Honoré, Causation in the Law at 477. (Hart seems to agree with my hypothesis that the normative goal theory (Normzweck) will be increasingly seen as a complement to the adequacy theory.).

32See generally Kalmo, 1 Juridica International at 45-54 (cited in note 24).


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c) Foreseeability Theory (Vorhersehbarkeit, Kahju ettenähtavuse teooria). Common Law's Influence on Civil Law. The rule of foreseeability, also known as the contemplation rule, is recognized world-wide and is found in both continental-European and the common law legal systems. This theory postulates that the tortfeasor must compensate those damages which he knew or could have known would result from his or her wrongful action. The foreseeability rule of damages appeared first in the common law and has since been taken up in the civil law as well. The logic of the foreseeability theory is that each person must be held accountable for those cases where s/he could have calculated the possibility of damages and their extent. Thus the tortfeasor would only be liable for those damages which a reasonably prudent person could have foreseen, and not those which s/he should have foreseen.34

Just as the adequacy theory has been taken up in common law, so too has foreseeability been taken up in civil law. The civil law considers foreseeability in determining whether the cause was adequate, and the common law has considered and appears to have accepted adequacy theory as a test to determine the existence of proximate cause. Each legal system has dialectically converged to common theories and rules.

d) Economic Analysis of Law (Law and Economics). Economic analysis of law also tries to explain causation in tort law. One key method in economic analysis of law is the use of cost-benefit analyses to determine where liability should fall. Economic analysis of law places the accent on the roles of actors as market participants rather than the question of cause as a matter of fact. Calabresi, for example, looks both at the tortfeasor and injured party and the roles that they play or could play in foreseeing, preventing, and remedying damages.35 Essentially Calabresi places the burden of accident prevention on the shoulders of s/he who could most easily prevent the damage. Posner36 for

34See Oliver Wendell Holmes, Jr., The Common Law (1909).

35See Guido Calabresi Guido & A.D. Melamed, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, 85 Harv L Rev at 1089 (1972).

36See generally Richard A. Posner, Economic Analysis of Law (Little Brown 1973).

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his part brings the idea of foreseeability as the basis for liability to tort -- again, without regard to the question of who did or didn't cause the damage. The preventive function of tort, rather than the compensatory one, takes the foreground in their view because that is the most effective at creation and preservation of wealth for the society as a whole.

D. Aristotle's Teleological Cause

Aristotle's final category of causation is teleological causality also known as final cause (causa finalis). The final cause of a thing is the goal towards which the thing naturally tends, its end, its purpose. For example, the teleology of an acorn is a tree; the teleology of a boy is a man. Teleological interpretation, also referred to as purposive interpretation, is fairly well known among jurists and is simply the idea that a law must be interpreted in such a manner so that it attains the goal the legislator had in enacting it. Aristotle's teleological conception of causality helps us to understand how to resolve complex problems of tort law by considering the finalities which tort law serves. By decomposing the cause of action in tort into factual and legal causes and by considering the ends to which the law serves (teleology) we obtain better resolution of the complex and inherently uncertain problems of causation such as cases of multiple tortfeasors, multiple victims, contributory negligence, and uncertainty as to cause or extent of damages.

Due to factual uncertainties the problem of causation in law is inevitably indeterminate, at least in theory. We can imagine cases of multiple tortfeasors, multiple victims, uncertainty as to causation (strange chemicals with uncertain properties, multiple gunshots), and uncertainty as to contributory factors by the plaintiff which led to their injury.37 To add to the uncertainty is the practical fact that sometimes people lie. From all this we can easily imagine problems to which there is more than one fair solution -- or problems to which we find no fair solution.

37 Hart and Honoré, Causation in the Law at 205-249 (cited in note 2).

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That leads us however to an unexpected paradox. Although causal uncertainty is inevitable, tort law in the civilian and common law have converged not only to the same outcomes but also to the same theories of liability and even the same rules. This strange constellation is explained in the conclusion which follows.


Philosophical, economic, and natural science perspectives complement each other and contextualize our comprehension of causality in law. Any of those perspectives in isolation cannot effectively explain how law treats or should treat causation because they do not consider the specific problems and goals and methods of the law. However, taken together, they provide the needed comprehensive theoretical framework for applying legal rules, goals, and interpretive methods. In turn, foreseeability, prevention, compensation, and cost-benefit analysis are also only partial solutions to the problems of causal indeterminacy. Any of those methods in isolation would be inadequate to answer the problem of causality. However, these partial solutions, contextualized by complementary economic and philosophical perspectives, work together to shape a remarkably harmonized global system of tort law, even in the face of factual uncertainty. Civil law and common law have dialectically converged toward teleological solutions to the questions of causation in tort.

Today we can speak of a globally harmonized tort law. Not only outcomes, but also theory and even black letter rules of law have converged in both the common law and civil law to teleological solutions which consider economic and philosophical concepts as well as foreign law to distinguish factual from legal causation using remarkably similar rules and presumptions as to burdens of proof and the functions and finalities of tort law. This globally harmonized system resulted from:

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i.Similar fact patterns before the various national courts

ii.Increased global communications which led to increased comparison of ideas and laws between different legal systems

iii.Increased global trade which compelled the creation of harmonized solutions as a practical matter to reduce transaction costs and increase legal certainty.

These factual developments were then mirrored doctrinally in the rise of the ideas of foreseeability and the adequacy theory to create a unitary global framework for tort law resting ultimately on Aristotelian ideas about causality, law and justice.

The rise of a globally harmonized private law of torts verifies a weak form of the theses of Gunther Teubner, that law is a self-developing (but not autonomous) system and of Volkmar Gessner, that legal certainty is an emergent property of law - autopoiesis and emergence. Whether in the global "center" (countries like the U.S., France, and Germany) or the developing "periphery" (countries like Estonia) the reality is a very real global convergence of private national law and thus the efforts of the E.U. toward legal harmonization of Member State's national laws are not Quixotic. They may even be superfluous and unnecessary which is the final surprising implication of this remarkable little study.