Causality and Imputation (Kelsen)
The function of imputation in the context of legal science and law itself, based on analogy and contrast with causality. By taking this approach, he can identify the difference between legal and natural science and legal and social phenomena.
The distinct formal structure of imputation in law. This allows him to identify the difference between legal and moral norms.
Central imputation, later called as Zuschreibung, which binds the fact with the organ.
Peripheral imputation, which Kelsen defines as a link between fact and a sanction. It has the structure: when A, then ought to B.
The following paragraphs present the evolution of the relationship between causality and imputation. They begin by outlining the historical background and then giving general remarks about causality and imputation in Kelsen’s theory. Finally, the two last paragraphs focus on two distinct types of imputation, central and peripheral, and their relationship to causality with regard to the evolution of Kelsen’s thoughts.
The genesis of Kelsen’s imputation has a historical background. The problem, later labeled “imputation” by Samuel von Pufendorf, was first noted by Plato in Timaeus and then by Aristotle in Nicomachean Ethics. It was bound with the question of how certain facts should be ascribed (imputed) to a certain person: for instance, the damage caused by an animal can be imputed to the animal’s owner, although it lacks a direct causal link. Pufendorf developed this idea as a series of logical links in the sphere of freedom. Hence, imputation was the answer to the question of free will in a world determined by causality. Finally, the most famous concept of imputation was introduced by Immanuel Kant in The Metaphysics of Morals, where Kant perceives responsibility for an event as a condition of imputation. Therefore, while the causality rule enables truth to be achieved, imputation allows justice to be achieved.
Imputation and Causality: General Remarks
Kelsen first devotes his attention to the problem of causality and imputation in his habilitation Hauptprobleme der Staatsrechtslehre (HP), in a phase called critical constructivism (Paulson 1996). Later, as Kelsen progressed into his next, most famous Neokantian phase with his book: Pure Theory of Law, he began to distinguish two types of imputation: central and peripheral. At this time, peripheral imputation was the crucial element of Kelsen’s theory, parallel to causality, which was understood by Kant as a category which enables cognition. Later, Kelsen’s view on imputation became more skeptical, and this could be seen in his article Kausalität und Zurechnung from 1954. In his skeptical phase, as the General Theory of Norms (ATN), central imputation lost its significance; peripheral imputation remained a relic of Neokantian influences and lost its coherence.
Causality in Kelsen’s Theory
As a starting point, Kelsen draws a distinction between natural and social science. While the former is ruled by the principle of causality, the latter is perceived from the causal normative point of view, depending on whether a human is perceived as a part of nature or part of society. In this context, Kelsen describes the different types of usage of the term “law.” In nature, the task of law is to explain reality, the is sphere; however, in normative meaning, law is used to establish ought. Hence, while reality is ruled by the principle of causality, the normative sphere is ruled by the principle of imputation. From this observation stems the main methodological assumption of Kelsen’s theory: the duality of is and ought. As a result, Kelsen criticizes any attempt to explain the nature of law as a fact of the causal world; for him, the rule which is applicable in this context is imputation. Kelsen had several reasons to reject causality in legal norms. He admitted that imputation can be parallel to causality, but in most cases, the lawmaker has to identify one link as being the most important of all those in a causal chain. Furthermore, sometimes legal liability can occur without causality. According to Kelsen, omission is such a case, since the cause must be bound with a change of activity. Omission belongs to the broader category of cases in which liability is dependent not on the action of the agent but on the result which occurred in reality. Kelsen believed that lack of activity excludes the cause; the effect is the result of other factors. Moreover, Kelsen argues that the effect can be a result of many causal chains. In this context, Kelsen and the doctrine (Hruschka 1991, 45–54; Renzikowski 2002, 259–60) list further differences between causality and imputation.
Differences Between Causality and Imputation
In causality, the causes are equal, while in imputation, some causes stand out.
Propositions based on the causality principle can be falsified, while legal norms based on imputation cannot.
Causal links are infinite, while imputative links are not: one factor is privileged by the lawmaker. In this context, Kelsen distinguishes the endpoint of imputation, which is a certain human’s behavior described in norm as the source of responsibility.
Imputation relies on will, in the case of the lawmaker, while causality does not.
Causality has a dynamic character, one which concerns movement and change in the physical world, while imputation is static.
Causality concerns objective processes, while imputation depends on the arbitrary decision of the lawmaker.
In Kelsen’s theory two competing conceptions can be observed: (1) the Kantian tradition and (2) Hume’s tradition. Both conceptions will be presented only to the extent used by Kelsen, and it must be noted that Kelsen treated them as being rather superficial.
In the Kantian tradition, causality has an epistemological function. Having a priori categories allows empirical material from the senses to be organized, thus allowing the phenomenal world to be cognized. However, Kelsen does not examine causality in this sense in any great depth; he only does so as long as he finds Kant’s terminology useful and as long as causality helps him to explain peripheral imputation in the context of the cognition of legal norms.
Later Kelsen began to favor David Hume’s conception of causality over the Kantian approach. Hume believed that causal links only project to the future that which has been gathered from experience, based on the principle of habit. In Society and Nature, Kelsen analyzes the causality principle in detail in Hume’s tradition. Kelsen notes that “primitive” men did not recognize the principle of causality. They believed that the world was based on the retribution principle, which is similar to imputation, stating that a reward is appropriate for good deeds and punishment for bad ones. For instance, an illness should be regarded as a punishment for a past misdeed. Therefore, the facts are not linked by the retribution principle by causality. Such a world was full of spirits and gods: if lightning struck or a tree did not bear fruit, it was attributed to the anger of the god responsible for thunder or the one living in the tree. As human beings were part of this order, there was no sharp distinction between human beings and objects. When this distinction later arose, in Ancient Greece, the ability to objectively explain natural events demanded the conceptualization of the causality rule. This moment could be regarded as the birth of scientific thought. In causality, the links between facts can be of a necessary character. This necessary character can be a result of the belief in absolute will, which was the case in the Middle Ages; however, this absolute will of God was later substituted by the necessity of human cognition. After the Enlightenment, causality became a very popular device in empirical science, as well as in psychology, sociology, and law, which were treated as empirical areas. Kelsen develops this idea further in Kausalität und Zurechnung. Not only does he analyze causality in Hume’s tradition, but he also tries to support his view by recalling scientific discoveries in the field of Physics, particularly in quantum mechanics. Kelsen recalls such names as Planck, Bohr, Schrödinger, and Heisenberg, whose uncertainty principle serves Kelsen to support the thesis that causality and imputation are of the same character: both signify only probability, with the difference only lying in the degree of uncertainty. While causality is bound with more certain events, imputation indicates less certainty. The two rules are not contradictory but are perceived as merely two distinct modes of interpretation, i.e., according to natural or social rules. While nature is bound with determinism caused by a causal indefinite chain of events, the normative world indicates freedom guaranteed by the endpoint of imputation. For Kelsen, imputation and freedom are strictly bound together. Freedom (free will) defined not as the absence of causality but rather as existence of the final point of imputation (human’s behavior) is associated with responsibility.
Central Imputation and Causality
Kelsen’s primary idea about imputation appeared in his habilitation, which signifies the first phase – critical constructivism. This primary idea of imputation bore the qualities of both central and peripheral imputation: while its structure resembles that of central imputation, Kelsen also ascribes to its functions reserved for peripheral imputation, such as its importance in the program of legal science. Later, Kelsen divides primary imputation into two types: central, which accounts for the links between several organs, and peripheral, which is crucial for legal science. Central imputation acts as a link between the fact and the organ. Hence this type of imputation resembles the classical idea, where the fact was ascribed to the person. Kelsen adapted this idea to the legal realm, substituting the physical person with the legal entity: a legal organ or a state. In addition, the subject of his imputation is different: placing the emphasis on duty, rather than on responsibility, as given in classical imputation. The other difference is that while classical imputation concerns past events, central imputation concerns all the events which occur at the time when the norm is valid. Such a change in emphasis has an impact on the relationship between imputation and causality. However, the link between central imputation and causality is far from clear. In order to clarify these relations, the elements of imputation, such as organ and fact, shall be analyzed in the following paragraphs.
Kelsen defines law as the will of state. The will is perceived in the ought realm as the assumption that is the norm is valid, which is the result of the will of the state. Consequently, Kelsen changes the perspective. Instead of inferring: “if something is the will of the state, it is imputed to the state,” the inference: “if something is imputed to the state, it is the will of the state” is valid. Hence, for Kelsen “will of the state” is an anthropomorphic expression of ought (Paulson 1990, 27–28). In such a schema, the state is the endpoint of imputation, to which all the particular lines of imputations are drawn. The particular lines of imputation are bound with the activity of the organs, which are perceived as points of imputation. The will of the state is distinct from the will of the organs; if this were not the case, the president’s veto would mean that this will contradicts itself. Central imputation is expressed by the rule of imputation. Such a rule exists in the norm, which indicates that the will of the state exists to consider certain facts, such as the activity of the state. Thus, imputation allows the cognition of law, because it can ultimately be interpreted as the will of the state (Paulson 2004, 101).
Such approach has a flaw. Kelsen notes that in the lawmaking process, the norms which would express the rule of imputation do not exist. Such a norm would have to consist of the will of the state in making the law, which would lead to the construction of a “will of the will.” In Kelsen’s habilitation, this remark compels him to propose the lawmaking process as occurring outside of the sphere of legal interest. Perhaps this incompleteness of the theory later forced Kelsen to adopt the concept of the hierarchical structure of law (Stufenbau), with its core principle being its formal links between norms: these links being formal in the sense that they are based on the competence, rather than on the content, of the norm, as in the case of morality. While it is possible to infer the lower norms “do not kill” or “help the neighbor” from the norm “Thou shalt love thy neighbor as thyself” in morality, such an operation is impossible in the case of law. The constitution gives Parliament the competence to pass statutes, and statutes grant the competence to pass ordinance. All steps in the process, apart from the first and the last, are of both lawmaking and law-applying character. Finally, central imputation has been eliminated in the General Theory of Norms.
As the two are analogous, how exactly does causality resemble central imputation? Firstly, the resemblance lies in the structure. Both causality and Zuschreibung are based on the metaphor of the chain. In both cases, there are certain points (nexus) which are linked. In the case of causality, these are certain facts, while in case of imputation, these are facts and points of imputation (organs and state). However, the main factor which should determine whether such an analogy is justified is their function. The function of causality is to explain some events which occur in nature. In case of imputation, the function is normative: to prescribe certain forms of behavior or duty to the subject. However, contrary to classical imputation, which concerned responsibility, these two functions do not seem to be sufficiently similar. The genesis of classical imputation was founded on the observation that some facts cannot be ascribed to the person based on the rule of causality; therefore, a new rule needed to be provided. This ground vanishes in the case of central imputation. The causal chain is by no means the alternative rule for links between organs. It is worth noting that this analogy was justified in the habilitation because Kelsen considered only one type of imputation and ascribed it a second function. Imputation in HP was proposed as the factor which allows law to be cognized. In this sense, imputation from HP can be considered as analogical to causality: while causality explains reality, imputation allows law to be cognized. However, later Kelsen ascribed this function to peripheral imputation.
It can be seen that for Kelsen, imputation had an analogical character to causality, in the sense of the role it plays in legal science. Namely, it allows law to be cognized. While in his first book (HP), Kelsen proposes that imputation plays this role and has the structure of central imputation, and he does not distinguish between central and peripheral imputation, he later attributes the function of legal cognition to peripheral imputation. When this function, legal cognition, is not clearly stated, central imputation loses its analogical character to causality.
Peripheral Imputation and Causality
Peripheral imputation appears in the evolution of Kelsen’s views. After writing his habilitation, Kelsen improved his theory, supplementing it with his famous basic norm and the hierarchical structure of norms (Stufenbau). He also created a distinction between central and peripheral imputation. According to Kelsen, peripheral imputation binds two facts, which resembles the concept of causality. The difference between imputation and causality lies in the nature of the link. While the causal link is ruled by necessity (if A then is B), the imputation is ruled by ought (if A then ought B). The expression “ought” in the norm highlights peripheral imputation. Facts A and B can be distinguished; thus, the first breaks some sort of norm, for example, murdering a man, while the second is the act of coercion derived from the empowered organ. Such empowerment is believed to be the most important component of the second fact bound by imputation (Paulson 1988). It is also the component which is characteristic of legal norms only. Kelsen develops this idea by introducing the concept of the reconstructed ideal form of the legal norm (Paulson 1988). Such a norm binds the description of the delict and sanction, and since it is addressed to the organ, it is characteristic of law, thus distinguishing law from morality and other normative systems.
One has the cognition of a legal norm.
The cognition of a legal norm is only possible if the category of normative imputation is presupposed.
Therefore the normative imputation is presupposed.
This argument allows us to assume that peripheral imputation is analogical to causality but in a more profound way, as seen in the category allowing cognition. In Kant’s Critique of Pure Reason, causality was perceived in similar way: as a category which enables empirical material to be organized as phenomena, or rather, the final product of our cognition. Imputation has a similar function in law, in that it allows alogical legal material to be represented as legal norms. The transcendental argument is intersubjective and valid only for those who acknowledge the existence of law. For example, the anarchist would deem such an argument as invalid by rejecting the first premise. The argument also has a flaw, namely, that it can only be valid if there are no competing theories to the Pure Theory of Law (Paulson 1992, 331). Since there are many such theories, the second premise is deprived of necessity.
Later Kelsen rejected Neokantian themes. In his final book, General Theory of Norms, the function of imputation is simplified and limited only to the first aspect: as a link between two facts. As such an imputation exists in both legal and moral norms, the two cannot be distinguished from one another in this regard. Also, Kelsen states that the imputation is of the same logical character to causality. Imputation and causality could be understood as implication, which binds either true-false facts or normative facts. The nature of imputation in the General Theory of Norms may also be bound with pragmatism; in such an interpretation, imputation would allow legal norms to be differentiated from other statements, and such a function would explain how the legal norms are recognized, even though they are not formulated as norms. Obviously the context of such a statement is decisive, e.g., the statement is found in the penal code. However, as Kelsen is unable to account for the separation of facts and normativity, he needs to find this justification in the normative sphere. Imputation might be such an indicator, one which suggests that a certain statement is of a normative character (Zalewska 2016, 162).
Other conceptions perceive the function of the imputation as the transformation of meaning (Jackson 1987, 229–235; van Alphen 1993, 169–175). When in court, the parties tell stories which reconstruct some aspect of the fact and are then transformed into the legal sphere. Imputation adds legal meaning to the reconstructed fact, and this can be perceived as the rule for how a normative character can be attributed to the fact. However, it must be borne in mind that in the General Theory of Norms, Kelsen perceived imputation as universal for both legal and moral norms. Fortunately, the conception of the transformation of meaning seems to work also in the context of moral norms. Some facts can be transformed into the moral sphere.
Kelsen’s claim that imputation and causality are two interpretation schemes might support all the readings.
With the imputation being common for both the legal and moral spheres, another difficulty arises. In the Neokantian phase, imputation was bound with empowerment of the organ to impose the sanction. As such a construction is impossible in morality, Kelsen simplifies his concept, stating that imputation binds the fact with sanction. As a result, in the skeptical phase, imputation cannot be used to distinguish legal from moral norms.
In the General Theory of Norms, Kelsen still perceives imputation as analogical to causality. However, Kelsen attributes them the same logical character, with the difference lying in their function. Causality binds the facts and allows them to be recognized. Imputation either allows legal norms to be recognized in the linguistic sphere or serves as the rule which allows fact to be transformed into the normative sphere: The first interpretation can serve legal science as a demonstration of how to distinguish norms from other statements, while the second is more bound with legal practice.
Hans Kelsen’s concept of imputation is his original construction. Although it may resemble traditional imputation, its functions and the manner by which it fits into the pure theory of law allow Kelsen to reach a new quality. While central imputation explains the law-applying process, peripheral imputation is an essential component of Kelsen’s theory: it creates a sharp distinction between factual and normative phenomena, as well as between law and morality, except in the General Theory of Norms. Kelsen perceives imputation as analogical to causality, and both types of imputation resemble causality. However, do they resemble each other sufficiently to discuss the analogy between them? While the accuracy of this analogy may be disputable in the case of central imputation, it is sound in the case of peripheral imputation.
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