ARISTOTELIAN THEORY
AND CAUSATION:
THE GLOBALIZATION
OF TORT
- Eric Allen Engle1
Instant global communication and
1 Dr.Jur. Eric Allen Engle, JD DEA LLM works as a research aid to Prof. Duncan Kennedy at Harvard Law School Email: erengle@law.harvard.edu
Electronic copy available at: http://ssrn.com/abstract=1424693
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ARISTOTELIAN THEORY AND CAUSATION: THE GLOBALIZATION OF TORT |
INTRODUCTION: LEGAL CONVERGENCE IN GLOBALIZING TORT LAW
Instant global communication and
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
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
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
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
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
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://
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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
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
9 See Hart
and Honoré, Causation in the Law at
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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.
I. CAUSATION ACCORDING TO ARISTOTLE: FOUR TYPES OF CAUSE11
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
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
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
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:
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
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. §§
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
(“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;
Rechtsfähigkeit)
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
The forms of objective fault are the same in common
law and civil law
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
21See, for example, Estonian Law of Obligations, § 104.
22See
Hart and Honoré, Causation in the Law at
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accurately "proximate" cause is Aristotle's causa efficiens23
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
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
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
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
Legal causation, like factual causation, is found
both in common law and civil law and is correctly called causa efficiens in both systems
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
25For
individualizing theories see Hart and Honoré, Causation
in the Law at
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
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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
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
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
28See
Kalmo, 1 Juridica International at
29For
generalizing theories see generally Hart and Honoré, Causation in the Law at
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
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
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
33Id.
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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
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
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
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
37 Hart and Honoré, Causation in the Law at
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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.
CONCLUSIONS
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
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