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The Causal Theory of Law

Published online by Cambridge University Press:  16 January 2009

S. C. Coval  and
J. C. Smith
J. C. Smith
Affiliation:
Professors in the Department of Philosophy and the Faculty of Law respectively of theUniversity of British Columbia.
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Extract

I. Introduction

The Philosophy of the law has largely accepted that laws are rules although it still struggles with the completeness of that paradigm. Nevertheles there has been no clear analysis for the law of what a rule is and what it entails. This paper is an attempt to do that.

Type
Articles
Information
The Cambridge Law Journal , Volume 36 , Issue 1 , April 1977 , pp. 110 - 151
Copyright
Copyright © Cambridge Law Journal and Contributors 1977

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References

1 Dworkin, R. M., “The Model of Rules” (1967–68)Google Scholar 35 U.Chi.L.Rev. 14; Hughes, G. B. J., “Rules, Policy and Decision Making” (1967–68)Google Scholar 77 Yale L.J. 411; Raz, J., “Legal Principles and the Limits of the Law” (1971–72) 81 Yale L.J. 823.Google Scholar

2 That jurisprudence has produced descriptions of some of the relations among rules cannot be denied. What it has not done is show the implications from any given rule to at least some members of the remaining body of rules, and vice versa. This sort of interrelationship is a necessary condition for a system and will be one of the main objects of this paper to elucidate.

3 Hart, H. L. A., “Positivism and the Separation of Law and Morals” (1957–58) 71 Harv.L.Rev. 593Google Scholar; Fuller, L., “Positivism and Fidelity to Law—A Reply to Professor Hart” (1957–58) 71 Harv.L.Rev. 630.Google Scholar

4 Supra, note 1.

5 Supra, note 1.

6 See for example “Legal Education and Public Policy: Professional Training in the Public Interest” (1942–43) 52 Yale L.J. 203, 242.Google Scholar The statement “a contextually oriented jurisprudence is a built-in device for maintaining the ever-precarious balance between rigidifying tendencies and the openness of mind required to keep in contact with the stream of new emergents in the life of society” (1966–67) 19 U.Flor.L.Rev. 486, 500 reflects the disjunction which Mcdougal and Lasswell see between stability and teleological change.

7 See Rawls, John, “Two Concepts of Rules” (1955) 64 Phil.Rev. 3Google Scholar; Lyons, D., Forms and Limits of Utilitarianism (Oxford, 1965)Google Scholar; Smart, J. C., “Extreme and Restricted Utilitarianism” (1956) 6 Phil.Quart. 344.Google Scholar

8 There was actually such a case. The case of the “red–neck” Sheriff and the death–bed promise are other examples of the same form.

9 H. L. A. Hart calls this feature the recognition feature of the law; J. L. Austin has been taken wrongly to have held that acts such as promising were constituted entirely by a “performatory” act, that is, constituted entirely by their invoking feature; hence, mistaken talk as in Searle's, J.Speech Acts (Cambridge, 1969)CrossRefGoogle Scholar, of an act as being constitutive of some larger act. We think it better to speak of certain acts as being the invocation of a practice or some larger act since it displays more clearly its role within the full setting of the practice.

10 See the causal parallel of this in the rule which is to follow.

11 In Paul Grice's etymon article, “Meaning” (1957)Google Scholar Phil.Rev. 377, the seeds of a causal theory of meaning were firmly planted. Since then the evidence has grown that meaning is actually to be so analysed. Schiffer's, Stephen recent book, Meaning (Oxford University Press, 1972)Google Scholar, would take one through the subtleties of the theory as it stands today and also through some of the relevant literature since Grice's first piece.

12 Criminal Code, R.S.C. 1970, Chap. C-34, ss. 12 and 13. At common law there is an irrebuttable presumption that children under a certain age (the age has fluctuated) cannot commit a crime. Above this age, and up to a further age limit, the presumption may be rebutted by showing that the child had the requisite mental capacity. Children are not liable for intentional torts unless they understand the nature of their actions. Tillander v. Gosselin (1966) 60 D.L.R. (2d) 18.Google Scholar Nor are they liable in negligence unless they are old enough to realise the nature of the risk which they create, Walmsley v. Humenick [1954] 2 D.L.R. 232Google Scholar; McHale v. Watson (1966) 115 C.L.R. 199.Google Scholar

13 The Criminal Code, R.S.C. 1970, Chap. C.34, s. 16; Smith, J. C. and Hogan, B., Criminal Law (3rd ed., 1973), p. 130Google Scholar; and Williams, G., Criminal Law (2d ed. 1961) p. 428.Google Scholar For civil liability in regards to intentional torts see Morriss v. Marsden [1952] 1 All E.R. 925Google Scholar; Phillips v. Soloway (1956) 6 D.L.R.(2d) 570.Google ScholarMcGuire v. Almy, 8 N.E. 2d 760 1937.Google Scholar (Mass.). See Buckley v. Smith Trans–port [1946] 4 D.L.R. 721Google Scholar; and Slattery v. Haley [1923] 3 D.L.R. 156Google Scholar regarding negligence and insanity.

14 The Queen v. Cottle [1958]Google Scholar N.Z.L.R. 999, R. v.Charlson [1955] 1 All E.R. 859Google Scholar, Bratty v. A.–G. for Northern Ireland [1963]Google Scholar A.C. 386. Where automatism intersects with insanity it is treated as a defence of insanity; where it intersects with intoxication it is the defence of intoxication. Only where it is caused by neither of these does it lie as a separate defencex and grant a complete acquittal. R. v. Hartridge (1966) 57 D.L.R. (2d) 332.Google Scholar

15 D.P.P. for Northern Ireland v. Lynch [1975]Google Scholar A.C. 653, Abbott v. The Queen [1976] 3 W.L.R. 462Google Scholar (P.C.), Subramaniam v. Public Prosecutor [1956] 1 W.L.R. 965.Google Scholar The Criminal Code, R.S.C. 1970, Chap. C-34, s. 17. Smith and Hogan, supra note 13 at pp. 164–171. Williams, supra note 13 at pp. 751–769.

16 Beaver v. R. [1957]Google Scholar S.C.R. 531. (Canadian position.)

17 Smith and Hogan, supra note 13 at pp. 148–154. (English position.)

18 In the law of torts a mistake of fact can negate: intent, and if the mistake is a reasonable one, there would be no basis for liability in negligence.

19 The Queen v. Tolson (1889) 23 Q.B.D. 168. In Canada see s. 254 (2) (a) of the Criminal Code where the same rule applies as an exception to the general proposition that only an honest belief is required.

20 Negligent mistake of fact is not a defence in England. R. v. King [1963] 3 All E.R. 561.Google ScholarR. v. Gould [1968] 2 Q.B. 65Google Scholar, although it may be in Canada. Beaver v. R., supra note 16.

21 Director of Public Prosecutions v. Beard [1920]Google Scholar A.C. 479, D.P.P. v. Majewski [1976] 2 W.L.R. 623Google Scholar, Smith and Hogan, supra note 13 at pp. 151–157.

22 The basis of contractual liability is the voluntary creation of contractual obligations. People enter into contracts because they believe that participation in the practice will achieve desired ends. Voluntariness, therefore, lies at the heart of the causal link between the R and the C of the law of contract. Infancy and insanity can affect voluntariness by rendering persons incapable of functioning as full rational agents. A contract entered into under undue influence or duress has not been made voluntarily. Misrepresentation and mistake also can affect voluntariness and consequently responsibility where, if the true facts were known, the contract would not have been made. Where both parties to a contract no longer consider it beneficial they can agree to rescind the contract. If a contracting party, in spite of one of the above factors, still desires to retain the benefit of the contract by complying with it, then the causal link between R and C will still be present. If, however, the factor which negates voluntariness also negates or changes the person's desire to maintain the contractual relationship, the foundation of the causal link will be missing. The law of contract consequently considers most contracts where voluntariness is so affected to be voidable (with some exceptions) rather than void. Because the wishes of the other contracting party are equally relevant, however, the contract will generally only be voidable where the other contracting party is responsible for the factor affecting voluntariness (duress, undue influence, mistake and misrepresentation), is aware of it (insanity and mistake), or should be aware or make inquiries (infancy). It is because of the interest of the other party that courts are reluctant to intervene in a contract where one party has been mistaken and the other party is neither responsible for or knew of the mistake.

23 Lim Chin Aik v. The Queen [1963]Google Scholar A.C. 160, 174–175.

24 Guest, A. G., Anson's Law of Contract (23rd ed., 1969) 453Google Scholar; Cheshire, G. C., Fifoot, C. H. S., and Furmston, M. P., Law of Contract (8th ed., 1972)Google Scholar 540.

25 Maritime National Fish, Ltd. v. Ocean Trawlers, Ltd. [1935]Google Scholar A.C. 524. Denmark Productions, Ltd. v. Boscobel Productions, Ltd. [1968] 3 W.L.R. 841.Google Scholar

26 Supra note 13 at pp. 746–747. See also The Queen v. Bamber, 5 Q.B. 279, 114 E.R. 1254, Hardcastle v. Bielly [1892] 1 Q.B. 709. Model Penal Code, s. 201(1) (Proposed Official Draft, 1962).Google Scholar

27 Holder v. Holder [1968] 1 All E.R. 665, 672.Google Scholar

28 This is known as the “but for” test. For a detailed analysis see Hart, H. L. A. and Honoré, A. M., Causation in the Law (1959)Google Scholar Ch. 5.

29 McWilliams v. Sir William Arrol and Co., Ltd. [1962] 1 W.L.R. 295.Google Scholar

30 Abbott v. Middleton, 7 H.L.C. 67, 114, 11 E.R. 28, 46. Mitchell v. Torup (1766) Parker 227, 233, 145 E.R. 764, 766. River Wear Commissioners v. Adamson (1877) 2 A.C. 743, 764–765. Victoria City v. Bishop of Vancouver Island [1921] 2 A.C. 384, 387.Google Scholar

31 Historically three principal rules of statutory interpretation have developed, the Mischief Rules or the Rule in Heydon's Case (1584) 3 Co.Rep. 7a, 76 E.R. 637, the Literal or Plain Meaning Rule, or the Rule in the Sussex Peerage Case (1844) 11 Cl. and F. 85, 8. E.R. 1034, and the Golden Rule, or the Rule in Grey v. Pearson (1857) 6 H.L.C. 64, 10 E.R. 1216. The Literal Meaning Rule was enunciated to prevent what were considered to be excessive judicial modifications of statutes under the Mischief Rule, and the Golden Rule was developed to escape the restraints of the Literal Meaning Rule. The Mischief and Golden Rules require statutes to be interpreted according to their objectives, and the Literal Meaning Rule places restraints on this exercise.

32 Driedger, E. A., in The Construction of Statutes (1974)Google Scholar 67 states, “Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.”

33 S. 11, Interpretation Act, R.S.C., 1970, c. 1–23.

34 Tedla v. Ellman, 19 N.E. 2d 987, 280 N.Y. 124 1939.Google Scholar

35 Idem at p. 991.

36 See Kitson (1955) 39 C.A.R. 66Google Scholar for an example of where the defence of necessity was neither raised nor applied. The court appeared to reach the ridiculous conclusion that it is better to risk one's life rather than to stop a car when one is impaired, and thus break the law.

37 Williams, supra note 13 at pp. 722 and 731.

38 S. 3.02 (Proposed Official Draft, 1962).

39 “The Defence of Necessity” (1953)Google Scholar 6 Current Legal Problems 216.

40 (1801) 3 C.Rob. 240 at 266, 165 E.R. 450 at 459.

41 Supra, note 39 at p. 224.

42 One is not liable in torts for causingdamage to property in order to preserve life. See Manor and Co. Ltd. v. M.V. “Sir John Crosbie” (1966) 52 D.L.R. (2d) 48.Google Scholar (Where the risk is only to property and not to lives, the loss may be treated differently. See Vincent v. Lake Erie Transportation Co., 124 N.W. 221). Since the civil side of the law justifies the destruction of property to save lives, it cannot be considered even to be a civil wrong to do so.

43 [1973] C.L.J. 81.

44 Riggs v. Palmer, 115 N.Y. 506; 22 N.E. 188 1889.

45 Coval and Smith supra note 43 at p. 99. See also Gutteridge, H. C., “Abuse of Rights” (1933–35) 5 C.L.J. 22.Google Scholar

46 (1964) 46 D.L.R. (2d) 750.

47 Idem at p. 755.

48 (1971) 17 D.L.R. (3d) 128, affirming (1970) 16 D.L.R. (3d) 143.

49 R.S.M., 1970, c. P-50.

50 [1974] 4 W.W.R. 394.

51 (1975) 75 C.L.L.C. 14, 286, at 15, 306.

52 Idem at p. 15, 308.

53 Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza Inc. (1968)Google Scholar 88 S.Ct. 1601, 391 U.S. 308, Lioyd Corporation Ltd. v. Tanner (1972) 401 U.S. 551.Google Scholar

54 Supra, note 51 at pp. 15, 313.

55 [1972] A.C. 877.

56 [1929] A.C. 358.

57 Supra, note 55 at pp. 893 and 898.

58 [1975] 3 All E.R. 901, 907.

59 394 P. 2d 921.

60 Supra, note 59 at p. 922.

61 Idem.

62 Idem.

63 Idem at p. 923.

64 Idem at p. 924.

65 Idem at p. 926.

66 This view is taken by Kadish, M. R. and Kadish, S. H. in Discretion to Disobey (1973), p. 37Google Scholar, and by Davis, K. C. in Discretionary Justice (1969).Google Scholar

67 There is some dispute whether long disuse will eventually have the effect of repealing a law. Scottish law appears to recognise this doctrine. See M'Ara v. Edinburgh (1912–13) 10 Scot.L.R. 829.Google Scholar According to Leigh v. Kent (1789) 3 T.R. 362, 364; 100 E.R. 621, 622 and White v. Boot (1788) 2 T.R. 274, 275; 100 E.R, 149 no such doctrine exists in the law of England. It was recognised in Porter's Appeals, 30 Penn. St.Rep. 496, 499 but later denied in State of Florida v. Egan, 387 So. 2d 1, and Mckeorin v. State, 124 S.W. 2d 19. We would not argue that long disuse results in the repeal of such acts, but only that such acts no longer give rise to obligations

68 Most legal theorists assume a necessary relationship between law and obligation. In Smith, J. C., Legal Obligation (Athlone Press of the University of London, 1976)Google Scholar, extensive arguments show why this is not the case.

69 Supra, note 3.

70 Idem at p. 619.

71 Idem at p. 661.

72 The Times, 6 April 1960Google Scholar, quoted in Millner, M. A., “apartheid And The South African Courts” (1961) 14 Current Legal Problems 280, 304.CrossRefGoogle Scholar

73 Supra note 1.

74 A beginning is made on the reduction of legal principles to various generalisations and sets of exceptions in our paper Some Structural Properties of Legal Decisions, supra note 43.

75 Supra note 1.