A nose can be a curious thing: so too causation.
I
In his Pensées (1669), published from an array of notes following his death, Blaise Pascal expressed a characteristically interesting view about Cleopatra’s nose: if it ‘had been shorter’, he said, ‘the whole face of the world would have been changed’.
In 32 BC, the Senate listened, open-mouthed, as Octavian read aloud Mark Antony’s will (or, at least, that is what he told them it was). Antony intended to leave vast legacies to his children borne to him by Cleopatra; declared that Caesarion, the son of Cleopatra and Julius Caesar, would become Caesar’s heir; and confirmed that Antony should be buried with Cleopatra in her family’s great mausoleum in Alexandria. This, so the story goes, was what finally turned the Roman people against Antony. Octavian saw his opportunity. A year later, in 31 BC, Cleopatra’s fleet fought alongside Mark Antony’s at the Battle of Actium: when she retreated, Antony followed. Octavian, victorious, would change his name to Augustus four years later, and so began the Roman Empire.
On Pascal’s provocative reasoning, all of this was down to a woman’s nose, an attribute Roman sensibility connected with beauty, nobility, and strength of character: without it, the logic proceeds, Cleopatra would not have captivated two triumvirs, borne them children, and provided Octavian with the leverage he needed to establish supremacy.
Pascal’s example was not an entirely serious one (in another nose-related aphorism he had pronounced that ‘sneezing absorbs all the functions of the soul’). In fact, shortly before introducing Cleopatra’s nose, he had agreed with Corneille’s Medea that the cause of love was not a lone facial feature but an inexpressible je ne sais quoi (Medée, II.v): for Pascal, it showed ‘fully the vanity of man’ that love’s cause, ‘so small an object that we cannot recognise it’, could somehow remain a mystery even though its effect was to ‘agitate … a whole country, princes, armies, the entire world’. Pascal’s (serious) point was that much of human life is a result not of personal virtue but of an ‘infinite string of contingencies’, whether or not they are identifiable; not to recognise this was arrogant and vain (Three Discourses on the Condition of the Great, I).
While other historians identify other causes for the political conflicts that characterised the declining years of the Roman Republic, can it be said that Pascal was wrong to attribute historical significance to a nose?
II
In What is History? (1961), E.H. Carr considers another question of causation, adopting L. Paul’s description of it as ‘rummaging in the rag-bag of observed facts’. He sees the dual task of the modern historian as ‘discovering the few significant facts and turning them into facts of history, and of discarding the many insignificant facts as unhistorical’. For him, it is ‘heresy’ to argue that history is about compiling the ‘maximum number of irrefutable and objective facts’: anyone who succumbs to this approach might as well ‘take up stamp-collecting’.
Carr tells the story of Jones, who had been to a party and drunk more than usual. He drove home in a car with brakes which, it turned out, were defective. He went round a bend with notoriously bad visibility. He crashed into and killed Robinson, who was crossing the road to buy cigarettes at the corner-shop. Was the accident caused by the driver’s semi-intoxicated condition? Or the defective breaks? Or the blind corner? Was it a combination of these? If we include the chances and contingencies of everyday life, why do we not say that Robinson’s tobacco addiction was the cause of his death? Why not include the manufacturer of the car? Or the invention of the internal combustion engine? Or Robinson’s parents? Or evolution? Or, for that matter, the Big Bang?
For Carr, the historian selects from the ‘infinite ocean of facts’ those which can be rationally explained. Other facts and other sequences of cause and effect ‘have to be rejected as accidental’, as the historian ‘can do nothing’ with them, and they have ‘no meaning either for the past or for the present’. So far as Jones’ accident is concerned:
‘… it made sense to suppose that the curbing of alcoholic indulgence in drivers, or a stricter control over the condition of brakes, or an improvement in the siting of roads, might serve the end of reducing the number of traffic fatalities. But it made no sense at all to suppose that the number of traffic fatalities could be reduced by preventing people from smoking cigarettes.’
As for noses, he accepts that they might represent an example of the:
‘… accidents which modified the course of history. It is futile to attempt to spirit them away, or to pretend that in some way or other they had no effect. On the other hand, in so far as they were accidental, they do not enter into any rational interpretation of history, or into the historian’s hierarchy of significant causes.’
While Cleopatra’s nose was relevant to Pascal because it showed human history is contingent on even the smallest details of physiognomy, it is irrelevant to Carr: for him, unless a fact allows a lesson to be learned or a broader conclusion to be drawn, it is not a significant cause, and should be left out of account. Who is right? What is causation and what is a cause?
III
Causation arises for consideration in both criminal and civil law. The criminal law’s concern is to ascribe responsibility or culpability for a particular result (for example, death). The lawyer, like most people, believes that human actions have causes which are, in principle, ascertainable. Hart and Honoré, still the leading academic work on the subject, concludes (broadly speaking) that causation involves the application of common-sense reasoning, having regard to the context. This is not always straightforward. In Hughes [2013] UKSC 56, [2013] 4 All ER 613, at [20], Lord Hughes and Lord Toulson warned that:
‘… the meaning of causation is heavily context-specific and … Parliament (or in some cases the courts) may apply different legal rules of causation in different situations. Accordingly it is not always safe to suppose that there is a settled or “stable” concept of causation which can be applied in every case’
Wallace [2018] EWCA Crim 690, [2018] 2 Cr App R 22 provides an example. D threw a glass of sulphuric acid in the face of V, her partner. V was left disfigured, visually impaired, completely paralysed, and in a permanent state of constant physical and psychological pain which doctors could not treat. V returned to Belgium, where he lived, and applied for euthanasia, which is permitted under Belgian law. The request for euthanasia was voluntary and satisfied the necessary legal requirements. In January 2017, 15 months or so after the attack, doctors ended V’s life by inserting drugs into his heart. Was D’s act capable of being a cause of V’s death? The trial judge concluded that it was not ‘if one is to accord proper respect to the decision and actions of persons with free will acting autonomously’. The Court of Appeal disagreed, finding that V’s and the doctors’ actions ‘were a direct response to the inflicted injuries and to the circumstances created by them for which the defendant was responsible’: they held that the essential question on legal causation is whether the accused’s acts can fairly be said to have made a significant (i.e. more than minimal) contribution to the victim’s death.
In simple terms, the question of causation in criminal law usually involves two stages:
(1) The first is a factual inquiry to establish if the consequence in question would not have happened ‘but for’ the defendant’s conduct (factual causation, or causa sine qua non). If the consequence would have happened anyway, the defendant’s conduct cannot properly be regarded as a cause. This is only a starting point: it is described in Simester and Sullivan as a ‘rule of thumb’.
(2) The second is a common-sense, policy-laden question about whether the defendant should be held responsible for the consequence (known variously as legal causation, proximate cause, effective cause or causa causans). The defendant’s conduct must have contributed in a ‘more than minimal’ way to be a legal cause, although it need not be the only cause, or even the principal one. Hart and Honoré observes that the ‘notion that a cause is essentially something which interferes with or intervenes in the course of events which would normally take place, is central to our common-sense concept of crime’. Here common sense is intuition by another name.
There is another important principle. Generally speaking, a defendant will not be regarded as having caused a consequence if there was a novus actus interveniens (a new intervening act) sufficient to break the chain of causation between the original act and the consequence in question. Whilst the original act may remain a factual cause (‘but for’ the act, the consequence may not have occurred), the intervening act may supplant it as the legal cause. The intervening act may be the act of a third party, an act of the victim, or an unforeseen natural event (sometimes called an ‘act of God’). It is, however, important to note that no intervening act can break the chain of causation if it merely complements or aggravates the effects of D’s initial conduct. The chain of causation is broken only where the effect of the intervening act is so overwhelming that the defendant’s conduct is relegated to the status of mere background.
The novus actus interveniens principle would have no effect if, for example, A’s driving caused B to drive dangerously and fatally kill V. While B’s act is voluntary, it is not independent of the act of A.
IV
Thus, whether a fact is a relevant cause depends, ultimately, on the purpose of the inquiry. Cleopatra’s nose mattered to Blaise Pascal because it was a simple way of expressing the vagaries of human existence; it was irrelevant and irrational to E.H. Carr because it allowed no lessons to be learned and no wider conclusions to be drawn. In a criminal case, causation is not just a matter of fact: legal causation is the mechanism used to make a value judgment for the purpose of allocating culpability.
Postscript: It has not escaped the notice of numismatists that on contemporary silver tetradrachms, in keeping with Hellenistic custom, Cleopatra appears to have been made to resemble Mark Antony, whose face appeared on the other side of the coin. Antony himself had an ‘aquiline’ nose (Plutarch, Life of Antony, IV). It follows that the cause of Cleopatra’s nose, or at least the one history has attributed to her, may in fact have been Antony’s own.
