Why did both the Roman and the English law of civil wrongs adopt, and override, causal tests which were embarrassingly, even absurdly, restrictive?
This paper, a token in recognition of a debt to Peter Stein, suggests an answer. Harm-verbs in the active voice drove the law into a causal comer.
A system which imposes liability on a person who does (damages, injures, wounds, breaks, spills) will be forced to define doing narrowly and will have to supplement the liability for doing with another for causing to be done (be damaged, injured, wounded, broken, spilled). This effect becomes stronger as the harm-verb is tied more closely to physical damage. It is stronger for ‘break’ than ‘harm’ itself.[38] Defendants will compel the law to look for the act of breaking. The image of a person doing that act cannot admit much intervention between the defendant’s bodily movements and the thing broken.The seeming absurdities have nothing to do with competitions between concepts of liability different from our own, much less with the pursuit of different socio-economic goals.[39] Litigation was caught up in the implications of the words in which it happened to be conducted. The modern law school, with the help of procedural reforms, is able to debate ideas detached from actional forms. When it looks at the past, it must learn to read the semantic constraints imposed by forms of action precisely as constraints, not as evidence of a different mind-set. However, this shortening of the chain of causation was not thrust upon the law by particular words, only by the choice of harm-verbs in the simple active voice. The Roman story in relation to killing slaves and livestock, for example, cannot be explained as turning on the choice of the word occidere·, it would have worked out in the same way if the draftsman had chosen interficere or nee are.[40] So much has been written of killing that it is helpful to concentrate on something different. This paper chooses burning. This is only a matter of focus. ‘Burning’ represents all active harm-verbs, and ‘causing to be burned’ exemplifies all bringing about of damage. The first section below sets the scene; the second seeks to explain it.