HANS KELSEN

C A U S A L I T Y AND R E T R I B U T I O N

Causality is not, as has been assumed, a thought-form with which the human
consciousness is endowed by natural necessity - what Kant calls an innate
notion (ein angeborener Verstandesbegriff) - but there are periods in the
history of human thought when man did not yet think causally, i.e. when
man was not yet conscious of causality as an absolutely valid law for all
events. The law of causality as a principle of scientific thought first appears at
a relatively high level of mental development. This conception of causality is
thoroughly foreign to the thinking of primitive peoples living to-day. They
interpret nature according to another system than causality, namely according
to social categories. For the primitive man there is not yet any "nature" in
the sense of a connection of elements, which is different from society and
determined by causal laws. What civilized man understands by nature is for
primitive man with his animistic, or more exactly, with his personalistic
perception only a part of his society and therefore governed by the same
laws as the latter. The so-called "Natur-Mensch" - who in truth is a social
being in every relationship - considers that the order of his community,
which is a legal order, likewise governs nature and consequently interprets
nature according to the same fundamental rules as those which determine his
relationship with members of the group. The fundamental norm of primitive
social order, however, is the principle of retribution, which completely
governs the thoroughly socially oriented consciousness of early men. The
interpretation of nature according to the principle of retribution expresses
itself in the actual behavior of primitive man with respect to animals, plants
and inanimate objects, and especially in his religion and his myths.
It was in the natural philosophy of the ancient Greeks that the notion of
causality took shape in the consciousness of man. This philosophy, however,
results from mythical and religious ideas which largely agree with the
mentality of primitive man known to us and in which the idea of retribution
plays the decisive part. For the metamorphosis of the principle of retribution
to the law of causality I can give in this short summary only two examples:
Heraclitus and Democritus.
Heraclitus says - as is well known - that war is the father and king of all
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things. In this war which the elements wage with one another he recognizes a
law of all life, and this universal law, the central idea of his whole philosophy,
is the will of the logos, which means the same as eternal, transcendental
universal all-governing reason. Everything takes place according to this law
which is identified with fate. It is obviously the law of causality. In Heraclitus
the necessity of events, this essential function of causality, is the inviolable
will of a deity which is represented as the personification of reason. The deity
is the expression of the absolute validity of the order in which the will of the
deity is expressed and, as absoluteness, inviolability can only appear as a
quality of a transcendent instance assumed to exist beyond all experience.
This necessity, fate, is expressed by the word eOaapla~ml. The verb laeipolaat
signifies to get a share. Etymology; comes from ola~pLolaat, the root of which
is smer, to allot, in Latin mereo, to merit. The word expressing the causal
necessity therefore originally signified the merited allotment. Someone's fate
is whatever is allotted to him - as reward or punishment. It is presumably the
idea of retribution which leads to the notion of fate as that which is allotted
to one - because of merit or fault - through the inexorable will of a requiting
deity. In fact it is precisely in Heraclitus that the eLtaaOl~u~ is the inviolability
of legal rules and the legal rule is undoubtedly that of retribution. The thor-
oughly normative character of the universal law of Heraclitus - a norm that
one ought to obey, but which through folly is nevertheless occasionally not
obeyed - is evident in the following fragment: "The sun will not go beyond
its measure, (i.e., its prescribed path), but if it does the Erinyes, the helpers
of Dike, know how to capture it". The Erinyes are the well-known spirits of
revenge of the Greek religion and Dike is the Goddess of retribution. The
Orphics call her the "Inexorable", "the judge of those who do not obey
the divine law". The significance of the saying of Heraclitus for the history of
scientific thought lies in the fact that the inviolability of the law of causality,
because of which the sun follows its path, is the compulsion of the Goddess
of Justice, the obligation of the legal norm, a normative necessity. The
inviolability of the universal law does not consist of the fact that it is
always observed; the case of the sun going beyond its measure is not out of
the question. The inviolability consists rather in the fact that a violation of
the law is always and without exception punished because the universal law,
as legal rule, is a norm laying down sanctions, and according to its tenor, a
law of retribution and as such the unshakable will of a deity.
For the Atomists who eliminate consistently from the observation of nature
all theological points of view, the law of nature ceases to be a norm, i.e. the
expression of a will. It becomes the expression of an impersonal objective
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necessity, &u&q,~r/. Democritus recognizes it in the impact and

counter-impact of atoms which dash against one another. All change is only
union and separation of parts, nothing exists but atoms and empty space
and all events take place in the way that the atoms which "are in disaccord
with another" crash against one another in the empty space. In this manner
things appear and disappear. If Democritus understands necessity as impact
and counter-impact of atoms, this signifies that he sees causality in a
phenomenon whose scheme consists of action and reaction. However, this
idea is an analogy to the principle of retribution, which connects an action to
its specific reaction, namely, the fault to the punishment, the merit to the
reward. The fact that the atoms striking against one another in "disaccord"
(just as in Heraclitus things are constantly "at war") and are "joined because
of their opposite behavior" e.g., like fault and punishment, also points in this
direction. Thus, as elements connected by the principle of retribution are
opposite with respect to the direction of their action but nevertheless alike
with respect to their nature, since like is requited with like, according to
Democritus's law of causality among atoms which are "in disaccord" only
like may affect like. A fragment of Democritus reads as follows: "Animals
act together with the same kind of animals - doves with doves, cranes with
cranes and the remaining animals similarly. The same is true for inanimate
things, as can be noticed in the case of grains of seed sifted promiscuously and
and in the case of pebbles in the surf. For in the former instance a whirling
motion of the sieve effects a separation so that lentils go to lentils,
barley corn to barley corn, grains of wheat to grains of wheat,
and in the latter the longish pebbles are driven to the longish ones,
the round ones to the round by the swell of the surf as if the similarity
peculiar to things created a power o f attraction between them." If the magnet
attracts the iron it is because the magnet and the iron consist of the same
kind of atoms. Like fault attracts punishment which fs essentially similar to it,
e.g., murder attracts murder (as blood revenge or death penalty), like merit
attracts praise which is essentially similar to it, the magnet attracts iron
because the latter is "like" the former. And when Aristotle portrayed the
Atomistic law of causality by the words: "They assert that nothing happens
accidentally but that there is a definite cause (Tt aL'rtou) of all which we
assert happens spontaneously or accidentally" and when in Democritus and
also elsewhere in the old natural philosophy cause means oarga, one must not
forget that this word originally meant "fault". The cause is responsible for
the effect. This is the internal connection between the two facts of the law
of causality which has not yet entirely disappeared from contemporary
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thinking in natural science.

II
After the victory of Christianity the idea of causality as an objective law
immanent in nature, as developed in the Atomistic theory, threatens to be
lost in the theological conception of the Middle Ages. The newer natural
science founded by Bacon, Galileo and Kepler, was the first to revive this
idea; but causality is - at least until Hume - considered again as norm since it
is - under the influence of Christian theology - felt to be the expression of a
will, namely of the divine will. Hume's criticism was mainly directed against
the notion which still prevailed in his time that a connection in the things
themselves, an inner connection, exists between cause and effect. But what is
the origin of this idea that the necessity of the connection of canse and
effect is objectively founded and therefore immanent in the causal events,
that the cause produces or attracts the effect, that not only a post hoc but
also a propter hoc exists between both of them? Very probable - as the
development of ancient Greek philosophy shows - it comes from the principle
of retribution. This principle is the expression of a transcendent will
independent of the men subjected to it, of a specifically objective authority
which connects the punishment with the fault, the reward with the merit by
allotting the punishment "on account of" the fault, the reward "on account
of" the merit. As long as the idea of a transcendental authority endowed with
reason and will exists, there can be no difference between the connection of
fault and punishment or reward and merit on the one hand and cause and
effect on the other - in so far as the two pairs can be distinguished at all.
For both cases this connection must be effected by the will of the authority;
just as one may not differentiate between moral law and natural law, as long
as both are considered to be the will of a deity. The latter is the objective tie
which holds cause and effect together, even when the law of causality has
been separated from the principle of retribution. If the criticism of Hume
and Kant transforms the principle of causality from an objectively necessary
connection of cause and effect which is immanent in nature to a subjective
principle of human knowledge, it only frees this principle from one element
which it carries with it as successor to the principle of retribution.
Another element of the notion of causality with which modern physics takes
issue is the thesis that the effect must be equal to the cause. Mach has already
shown this proposition to be completely "empty". The problematic
character of the equation between cause and effect is likewise evident from
the fact that the duality of causality which is characteristic of the popular
428 HANS KELSEN

notion has as premise the idea that one cause has only one effect and that
one effect is traceable only to one cause. But since each cause itself must
again be considered as effect of another cause and each effect as the cause of
a further effect, each point to be causally determined lies in an endless chain
of causality which has the character of a continuum. That we extract from
the continuous chain of innumerable elements only two elements as "the"
cause and "the" effect which is imputed only to this cause is a consequence
of the age-old habit of thinking of nature in terms of the principle of
retribution which connects only a particular event qualified as wrong with
another event - the punishment - likewise precisely determined and clearly
separated chronologically from the first and to which one "imputes" the
other. Starting from the so-called "conditionism", represented by Verworn,
one has put the notion of cause completely aside as useless and has
replaced it by that of "conditions" or "components" of the event.
Similarly the notion of effect has been superseded by that of the "resultants".
However, it is considered necessary especially to indicate one of the
conditions or components of an event as the "decisive" one, so that a
distinction is made between the causes as the collective notion of all
conditions of an effect taken together and the cause in the narrower sense of
the "immediate" or decisive condition of one of the conditioning
circumstances. Consequently, the notion of causality is not really abandoned
but only modified. What is abandoned is simply a part of the idea of causality,
which again may only originate from the sphere of the idea of retribution,
the duality. Here and here alone is this idea in fact incontestable in its place -
one delict, one punishment. The criticism of the law of the causality made by
the so-called conditionism also aims only at separation from the principle of
retribution.
This principle connects its two parts essentially in the sense that one must
chronologically precede the other - first the crime and then the punishment,
first the merit and then the reward. The two parts connected by the principle
of retribution are not reversible. Like inversion, simultaneousness of the two
parts is also inconceivable. The law of causality is, or was, originally
conceived in this way, i.e., by analogy to the principle of retribution, which
connects its two parts in an irreversible chronological sequence, and in this
form it is mainly considered as the fundamental form of natural law. This
idea was no longer maintainable when it was necessary to give up the
assumption of an immanent connection of cause and effect and to replace
the assumption by the notion of a merely functional dependency. The
chronological sequence of the phenomena no longer is contained in this
notion as an essential element. Functional dependency can also exist between
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simultaneous events. However, if there is a relationship of functional

dependency between simultaneous events, they are also invertible.
This modification of the meaning of the law of causality signifies only the
emancipation of causality from retribution.
It is generally assumed that the main blow to the law of causality was dealt
by the recently founded quantum mechanics, the mechanics of the atom-
electron. Its effect on our conception of nature may be formulated as follows:
the laws by which science describes nature and on the basis of which future
events can be foreseen do not express absolute necessity but merely statistical
probability. That is not a replacement of causality by statistical laws but a
modification of the notion of causality. The assumption of a conformability
of events to law remains intact. It is only that instead of the absolute
necessity of the former formulations of the law of causality appears simple
probability, i.e., the assumption that an absolutely necessary connection
exists between cause and effect is replaced by the notion that this connection
is only a probable one. But this result is already the consequence of the
insight that causality is not the expression of a transcendent will and there-
fore not a norm. Only a norm can lay claim to inviolability, for it is not a
statement with regard to reality and therefore can never come into
contradiction with it. Reality, however, as it now appears to human
knowledge, permits no inviolable law as scheme of interpretation. If the
transformation of the notion of the law, the last step of which is the
replacement of absolute necessity by simple statistical probability, is
considered to be a "revolution" of scientific thinking. Its significance lies in
the fact that the most important element is done away with, namely, that
with which the notion of causality was still burdened as a result of the idea
from which this notion gradually emerged: the &v&~,Kr/ i.e., the necessity,
with which At'r~7,the goddess of retribution, punishes the evildoers and at
the same time keeps nature in its prescribed course.

Geneva