Thirty-one years on the bench: legal causation is not physical causation, and should not be
I was a judge for thirty-one years in Pakistan, the last ten as a sessions judge. In retirement I am reading the jurisprudence I skimmed as a young lawyer, and causation is where philosophy and my old courtroom meet most uncomfortably.
Every death has countless causes. The man who stabbed the victim, the shopkeeper who sold him the knife, the doctor whose treatment was slow, the victim's own weak heart, the oxygen in the air. A physicist would say they are all part of the causal history. The court must pick one or two and say: this caused the death, for the purposes of liability.
Common law begins with the "but for" test (would the harm have happened but for the act?) and then narrows it with ideas like intervening acts. H. L. A. Hart and Tony Honoré argued in Causation in the Law (1959) that these are not arbitrary policy choices but reflect ordinary common-sense causal concepts, especially the special weight we give to free, deliberate human acts.
The fiqh tradition draws a related line between the direct agent, the mubāshir, and the one who is only an indirect cause, the mutasabbib. The well-known maxim, later codified in the Ottoman Majalla, says that where the two come together, liability attaches to the direct agent. And the indirect causer is generally liable only if he transgressed.
My question: is legal causation a selection from real causes, or a moral judgement wearing causal clothing? I am no longer sure, after a career of using it.