Rethinking Proximate Cause: An Essay in Experimental Jurisprudence

Abstract

Among the oldest debates in legal theory centers on the concept of “proximate cause.” According to formalists, the legal concept of “proximate cause” is the same as the ordinary concept of “cause.” Thus, the legal question of whether a cause is proximate or remote for the purposes of establishing tort liability is an objective matter about the external world determinable by familiar descriptive inquiry. By contrast, the legal realist thinks that issues of proximate causation are normative questions about responsibility. As the realists William Prosser and Robert Keeton put it, “Proximate cause is better called ‘responsible cause’.”

Recent work in cognitive science has afforded us new insights into the way people make causal judgments that were unavailable at the time of the original debate between formalists and realists. We now have access to the results of systematic experimental studies that examine the way people ordinarily think about causation and morality. This work opens up the possibility of a very different approach to understanding the role of causation in the law-one which combines the attractive features of both formalism and realism without accepting their implausible consequences.

About the speaker

Joshua Knobe is Professor of Philosophy and Cognitive Science at Yale. Read more about our speaker.

Scott Shapiro is Charles F. Southmayd Professor of Law and Professor of Philosophy at Yale Law School. Read more about our speaker.

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