When I was in tenth grade, my friend and I, after long deliberation one fall afternoon, conclusively decided that the word “should” doesn’t really have any discernable meaning. It was only years later, after several years of studying literature and literary theory, that I realized that on that occasion in tenth grade, we had performed a very textbook exercise of semiotics and deconstruction. Today, while researching an intriguing question of “proximate cause” in the breach of contract context, I was again reminded of my tenth-grade semiotic-deconstructive discovery, and glimpsed an answer to the conundrum in the odd place of legal causation. Is the admittedly abstract principle of legal causation an, or even the, answer to philosophical abstractions of semiotics and deconstruction?
A statement from Professor Corbin’s treatise on Contract Law, 11 Corbin on Contracts § 1006, at 59-61, caught my eye this morning and reminded me of my tenth-grade exercise with the word “should”:
Much staring at the letters in a printed volume can turn it into a meaningless blur; and much supposed “thinking” over the relation of “cause and effect” can easily turn it into a mirage in a desert of words.
Very poetic, to be sure, but not very helpful in my quest to provide a partner in my law firm with an answer as to whether the doctrine of proximate cause can help shield our client from liability in one of our cases. Corbin continues:
On the other hand, it is easy to be mistaken in supposing that a word produces the same thought in A that it produces in B; and it has been very common and equally mistaken to suppose that the determination of cause and effect is simple and easy and that result X can always and invariably be traced back to cause A.
Anxiety begins rising at this point as both semiotics and deconstruction enter into my research for this down-to-earth, concrete case in which a substantial sum of money is at stake. But Corbin does not leave me high and dry, for which I am thankful:
The whole law of remedies, both criminal and civil, for crimes, torts, and breaches of contract alike, is based upon the belief that there is uniformity in the sequence of events, in the conduct of men as well as in that of atoms and planets, and that it is possible for men to influence and control the future as well as to predict it. A metaphysician can, no doubt, reduce this belief to a meaningless superstition by merely thinking about it; but the metaphysician’s burnt child will still dread the fire after only one past experience with it, and the metaphysician himself will try to avoid hitting his thumb twice with the same hammer. The living conviction of child and man alike that there is uniformity in the sequence of events, that we can in good measure predict the future from the past, and that we can in some degree ourselves control the future, is all that we are expressing when we assert the relation of cause and effect.
This discussion leads to a practical end for my research of legal causation in a breach of contract setting. “Our only test of ‘causation’, therefore,” writes Corbin, “is foreseeability, based upon uniformity of sequence in our experience.” Hume’s river comes to mind at this point as does Herder’s view of development. For my legal purposes, Corbin concludes helpfully that “[u]nless the defendant’s conduct was such as to make injury more likely, i.e., makes the injury foreseeable as more likely to occur, the punishment of mulcting the defendant does not attain the purpose for which law and remedies exist. Charging him with damages merely shifts the loss without affecting the future by making such inquiries less likely to occur.” Thus, legal causation requires that injury arising from a breach of contract must have been foreseeable at the time of breach to charge it to the breaching party. But does legal causation have wider implications for deconstruction generally? That is something that requires more thought (but not too much, lest as a metaphysician we think any sense out of the concept).