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The earliest attacks on this system of causation can be traced back to the i 87os and to efforts of young American philosphers to counter a growing movement in America toward philosophical idealism.
Along with his fellow members of the informal Metaphysical Club, Oliver Wendell Holmes, Jr., "had come very early to share their deep distrust and antagonism to the a priori categories of Kant and the conceptual dialectic of Hegel. A philosophy of law, an analysis of legal history, which was built on Kantian or Hegelian foundations must be repudiated and cast aside."96 Together with future Harvard philosophers William James, Charles Peirce, and Chauncey Wright, Holmes shared membership in the Metaphysical Club with a young instructor at Harvard Law School named Nicholas St. John Green.
In the midst of his Metaphysical Club speculations in 1870, Green published an article in the recently established American Law Review on "Proximate and Remote Cause," which, so far as I know, was by far the earliest direct challenge to orthodox legal notions of objective causation and was not to be repeated for fifty years. Green disputed the fundamental Baconian maxim that the law could objectively distinguish between proximate and remote causes in order to assign legal liability in a nondiscretionary manner. "The phrase 'chain of causation,' . . . embodies a dangerous metaphor," wrote Green.
It raises in the mind an idea of one determinate cause, followed by another determinate cause, created by the first, and that followed by a third created by the second, and so on, one succeeding another till the effect is reached. The causes are pictured as following one upon the other in time, as the links of a chain follow one upon the other in space. There is nothing in nature which corresponds to this. Such an idea is a pure fabrication of the mind.97
There is no single, objective, proximate cause, Green argued. "To every event there are certain antecedents. . . . It is not any one of this set of antecedents taken by itself which is the cause. No one by itself would produce the effect. The true cause is the whole set of antecedents taken together."98
In a passage typical of those that have led historians to see the roots of pragmatism and skepticism in these early speculations of the Metaphysical Club,' Green declared: "When the law has to do with abstract theological belief, it will be time to speculate as to what abstract mystery there may be in causation; but as long as its concern is confined to practical matters it is useless to inquire for mysteries which exist in no other sense than the sense in which every thing is a mystery." 100 "When [courts say that] this damage is remote, it does not flow naturally, it is not proximate," he wrote four years later, "all they mean, and all they can mean, is, that under all the circumstances they think the plaintiff should not recover. They did not arrive at that conclusion themselves by reasoning with those phrases, and by making use of them in their decision they do not render that decision clearer to others." 101
It is important to note nevertheless that Green did not dispute the possibilities of objective causation in the physical sciences, where "there is a search for what may with some propriety, perhaps, be called the proximate cause." In the sciences, he conceded, it was possible to use causation as "not an absolute but a relative term," signifying "the nearest known cause considered in relation to the effect, and in contrast to some more distant cause." 102
Green surveyed the uses of causation in various fields of law to demonstrate how courts manipulated the terms "proximate" and "remote" to accomplish other purposes. In contract cases, courts employed these terms to determine what damages might "reasonably be supposed to have been contemplated by the parties." In negligence cases, "misconduct is called the proximate cause of those results which a prudent foresight might have avoided." But above all, there is "no settled rule" in tort because the determination of causation "often var[ies] in proportion to the misconduct, recklessness, or wantonness of the defendant." 103 In law, moral conceptions constantly intruded upon scientific ones.
Green thus not only anticipated Holmes's famous "prediction theory" of law.104 He also previewed what a half-century later would be the most powerful argument of the Legal Realists against the continued insistence of legal orthodoxy upon the objective character of causation in law: that because judges and jurists inevitably imported moral ideas into their determinations of legal causation, they were making discretionary policy determinations under the guise of doing science.
There are many reasons why the later Legal Realists' critique of causation doctrine largely succeeded while Green's challenge seems to have been ignored. In the realm of ideas, however, one important difference between the two periods stands out. While Green was prepared to concede that the notion of objective causation "may with some propriety" be used in the physical sciences, his Legal Realist successors were to witness an internal challenge to causation in the natural sciences themselves. Without pretensions to scientific foundations, legal conceptions of objective causation became increasingly vulnerable.
Though we may pay tribute to Green's prescience and originality, his direct influence on legal doctrine seems to have been non-existent. If we are to find Green's influence, we must trace it through a more indirect process by which a number of his perceptions were taken up by others and gradually accumulated into a critical whole. Prescient and original as Green was, if he is to be allowed any measure of immortality, it must be either specifically through his effect on Holmes or, more generally, because of his contributions to the development of pragmatism.
Causation and Ideology
The underlying ideological issues in the controversy over legal causation were directly confronted in 1874, four years after Green wrote, by the orthodox treatise writer Francis Wharton. The recent appearance of John Stuart Mill's Autobiography, Wharton wrote, had "revived" the controversy on Causation originally stirred up by the publication of Mill's System of Logic (1843).105 "The doctrine advocated by . . . Mill, that the cause of an event is the sum of all its antecedents," Wharton argued, was "irreconcilable with the principles of Roman and of Anglo-American law." Besides, he maintained, the inevitable result of a doctrine of multiple causation was "communism." 106
Wharton's major argument was that the theory of causation was different in law than it was in the natural sciences. "[P]hysicists who treat all antecedents as causes, and who can only judge of material forces, can afford no aid to jurisprudence when it undertakes to distinguish those conditions which are material, and therefore merely consecutive, from those which are moral and causal." 10' Given the fact that the scientific definition of causation "has not, with rare exceptions, been considered, by Anglo-American courts, to call even for discussion, this shows that so far as concerns practical life, the materialistic view of causation has no ground on which to stand." 108
Thus far, it should be noticed, Wharton's main strategy was simply to dissociate legal causation from scientific causation. There was not yet an attempt to argue that the claims of legal science can or should be grounded on those of the natural sciences. For Wharton, the distinctively legal emphasis on moral causation was connected with the search for a free agency among the multiple anteced- dent causes. By the "levelling of all antecedents to the same parity," but not only failing to "distinguish between physical and moral forces" by also neglecting to "requir[e) that physical forces be directed in conformity with moral law," Mill was "denying man's moral primacy over and responsibility for nature. . . ." 109
The result was the practical communism which this theory of the causal character of all antecedents promotes."110
"Here is a capitalist among these antecedents; he shall be forced to pay." The capitalist, therefore, becomes liable for all disasters of which he is in any sense the condition, and the fact that he thus is held liable, multiplies these disasters. Men become prudent and diligent by the consciousness that they will be made to suffer if they are not prudent and diligent. If they know that they will not be made to suffer for their neglects; if they know that though the true cause of a disaster, they will he passed over in order to reach the capitalist
who is a remoter condition, then they will cease to be prudent. . . . No factory would be built. . . . Making the capitalist liable for everything, therefore, would end in making the capitalist, as well as the non-capitalist, liable for nothing; for there would be soon no capitalist to be found to be sued."'
This seemingly sudden leap that Wharton makes from the technical question of legal causation to his warning of the destruction of capitalism is startling only if one fails to understand the systemic character of legal thought in the late nineteenth century.
Mill himself had attacked the existing doctrine of objective causation because it was associated with German idealist metaphysics, which he later noted was
in these times, the great intellectual support for false doctrines and bad institutions. . . . There never was such an instrument devised for consecrating all deepseated prejudices. It is the main doctrinal pillar of all the areas which impede human improvement. And the chief strength of this false philosophy in the departments of morals and religion lies in the appeal which it is accustomed to make to the evidence of mathematics and of the cognate branches of physical science. I"
Wharton's defense of objective causation and his insistence on a single responsible legal cause were repeated by all late-nineteenth-century treatise writers. For Wharton's generation, the ideas of moral causation and of free agency were still regarded as intelligible and objective a priori categories. That Nicholas St. John Green alone could argue that the confusion of scientific and moral notions was precisely what made legal doctrines about causation unintelligible is evidence of his premature skepticism. In the 187os few were prepared to agree that the infusion of moralism into law made it political. Indeed, it was the amoral that Wharton identified with communism. By the end of the nineteenth century, however, orthodox legal thinkers would begin to downplay the moral element in causation while emphasizing the scientific basis of objective causation in law. As they thereby implicitly conceded their own growing skepticism about the objectivity of moral categories, they also laid themselves open for the final assault on causation by the Legal Realist heirs of Nicholas Green, who could now show not only the illicit moralism of legal causation but the collapse of causation in the natural sciences as well.
There were few occasions before the twentieth century when the ideological problems underlying the question of objective causation burst forth with the clarity of a Green or a Wharton. By and large, orthodox judges and jurists continued to invoke the metaphors of "chains of causation" and "natural and probable consequences" as if these were concepts capable of objective determination.
But the skepticism of Green found another channel: the prediction theory of law articulated by Oliver Wendell Holmes, Jr. There are two separate elements in Holmes's theory. The first, expressed by his famous aphorism from "The Path of the Law" (1897), is that "[t]he prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.""' Indeed, as early as in his Harvard University lectures of 1871-1872, Holmes first expressed a similar idea virtually contemporaneously with Green's, which does suggest a reciprocal influence between Green and Holmes. Above all, Holmes's emphasis on the probabilistic nature of prediction was an effort to deny the claims of the legal system to logical or "mathematical" certainty. 14
But there was another similar but far more practically significant shift to a prediction theory in Holmes's thought: his emphasis on foresight in the law of torts. Not only is Green's influence quite clear here but, as we shall see, the function of foresight in both Green and Holmes was to avoid the problems inherent in any claims to objectivity in legal cause.
A shift to foresight as a substitute for natural sequence had begun to appear in the case law of the 186os. By the early 1870s, there were already "two views," Wharton noted, concerning liability for negligence:
The first view is that a person is liable for all the consequences which flow in ordinary natural sequences from his negligence; the second, that he is liable for all the consequences that could be foreseen as likely to occur. "S
Wharton opposed the foreseeability view and insisted on "ordinary natural sequence" as the basis for determining causation and hence liability. "If the consequence flows from any particular negligence according to ordinary natural sequence, without the intervention of any independent human agency, then such consequence, whether foreseen as. probable or unforeseen, is imputable to the negligence." 116
More than any other writer, Wharton was responsible for clearly formulating the orthodox view of objective causation that would continue to dominate latenineteenth-century legal thought. Only a half century later would legal critics derisively refer to this formula as "negligence in the air." 1 17
By that time, the idea of negligence as a relational concept had completely triumphed, and the notion of objective causation had begun to disintegrate. While he himself was something of a transitional figure with respect to the moralistic foundations of negligence, Wharton basically continued to draw on the earlier notion that it was simply just to hold immoral actors liable for the proximate consequences of their acts.
For the late nineteenth century, one judicial decision stood out as a radical rejection of the idea of objective causation; and every treatise writer, including Wharton, was forced to take a stand on its merits. In Ryan v, New York Central Railroad (1866),118 the New York Court of Appeals had held that a railroad that negligently caused a fire was liable only to the owner of an immediately adjacent house and not to more distant owners whose houses were destroyed by the spreading fire.
The court had employed traditional language in rejecting the claim of the second-house owner. Only the destruction of the first house was the proximate result of the railroad's negligence; all of the remaining injuries were remote, the court declared. Yet, even the use of traditional language offered little comfort to believers in the nondiscretionary and self-executing character of the orthodox categories. The result, limiting liability to the first house, seemed contrary to any commonsense understanding of the difference between proximate and remote consequences. And even more important, the court spent far more time explaining why any other result "would . . . create a liability which would be the destruction of all civilized society." 119
The New York court, judge Thomas Cooley contemptuously noted, was "apparently . . . more influenced in their decision by the fact that the opposite doctrine `would subject to a liability against which no prudence could guard, and to meet which no private fortune would be adequate,' than by a strict regard to the logic of cause and effect." 120
The decision in Ryan is one of many in the period after 1840 limiting the liability of the agents of economic growth, especially the railroad. Yet, the typical judicial strategies for extending entrepreneurial immunity had rarely dealt so cynically with the idea of causation. Even though virtually all judges and jurists of the nineteenth century had also promoted doctrines limiting entrepreneurial liability, the Ryan decision remained an outcast throughout the entire period.'21
The explanation gives us some insight into the relative autonomy of legal ideas. The conception of objective causation was too central to the legitimation of the entire system of private law for it to be abandoned even in the interest of erecting another barrier to entrepreneurial liability. Many judges, to be sure, manipulated the proximate-remote distinction in other cases to limit entrepreneurial liability, but few did so as brazenly as in Ryan, threatening to bring the entire intellectual system into disrepute.
Wharton seems to have come closer than any treatise writer to defending the Ryan decision. While never explicitly endorsing it, he did cite it as illustrative of the slightly different orthodox principle that the intervention of an "independent responsible human agency" relieves a negligent defendant from liability.122 "If a house is properly built, if it is properly watched, if a proper fire apparatus is in operation, it can be prevented, when a fire approaches from a neighboring detached house, from catching the fire." 123 From this Wharton
seems to have concluded that the owner of the second house was, in effect, contributorily negligent and thus produced a break in the chain of causation. But unlike the court in Ryan, even Wharton recognized a Michigan court's assertion that without an intervening cause, "the principle of justice, or sound logic . . . is very obscure, which can exempt the party through whose negligence the first building was burned from equal liability for the burning of the second." 124
Wharton thus sought to absorb the Ryan case into his own orthodox paradigm of objective causation. Indeed, he devoted considerable energy to demonstrating the terrible consequences of failing to relieve entrepreneurs of liability when an intervening cause broke the negligent chain of causation.
"Whether a railroad company is to be liable for all fires of which its locomotives are the occasion," he wrote, "is a question . . . important to the industrial interests of the land.. . ." 125 Unless abutting landowners are "held to be personally responsible for the consequences of placing combustible materials by the side of a railroad," the "noncapitalists" will be "skipped over" and "the rich corporation" will be "attacked." 126
Capital, by this process is either destroyed, or is compelled to shrink from entering into those large operations by which the trade of a nation is built up. We are accustomed to look with apathy at the ruin of great corporations, and to say, "well enough, they have no souls, they can bear it without pain, for they have nothing in them by which pain can be felt." But no corporation can be ruined without bringing ruin to some of the noblest and most meritorious classes of the land. Those who first give the start to such corporations are men of bold and enterprising qualities, kindled, no doubt, in part by self-interest, but in part also by the delight which men of such type feel in generous schemes for the development of public resources, and the extension to new fields of the wealth and industry of the community. Those who come in, in the second place, to lend their means to such enterprises after these enterprises appear to be reliable objects of investment, are the "bloated bond-holders," consisting of professional men of small incomes, and widows and orphans whose support is dependent on the income they draw from the modest means left to them by their friends. Nor is it these alone who are impoverished by the destruction of the corporations of which I here speak. The corporation may itself be soulless, and those investing in it may deserve little sympathy, but those whom it employs are the bone and sinew of the land. There is no railroad, no manufacturing company that does not spend three-fourths of its income in the employment of labor. When the corporation's income ceases, then the labor is dismissed. We hear sometimes of the cruelty of the eviction of laborers from their cottages at a landlord's caprice. But there are no evictions which approach in vastness and bitterness to those which are caused by the stoppage of railway improvements or of manufacturing corporations; in few cases is there such misery to the laboring classes worked, as when one of these great institutions is closed. I think I may, therefore, safely say that the question before us relates eminently to the industrial interests.127