Proximate and Remote Cause
(American Law Review, vol.4, p.201)IN JURE non remota causa, sed proxima, spectator, is the first of Lord Bacon's "Maxims of the Law." An unsuccessful search for this maxim has been made in the civil law. It does not appear to have been used in the English law prior to Lord Bacon's time. As he plainly intimates that some of the maxims were original with him, this was probably one of that number... In the 2d Aphorism of the 2d book of the "Novum Organon," he says, "It is a correct position that true knowledge is knowledge by causes." He adopts Aristotle's division of causes. "And causes again are not improperly distributed into four kinds: the material, the formal, the efficient, and the final." He confines all philosophy to the search for the proximate cause. These are his words: "But of these, the final cause rather corrupts than advances the sciences, except such as have to do with human action. The discovery of the formal is despaired of. The efficient and the material [as they are investigated, that is as remote causes] are slight and superficial, and contribute little if anything to true and active science." That is, he leaves nothing for the investigation of science but the proximate cause as distinguished from the remote... The maxim then, as used by Bacon, is but the assertion of the general principle of philosophical inquiry. He uses the word cause in the broad signification which it has in the writings of Aristotle and his commentators, the schoolmen, that is, as nearly synonymous with the word reason. The examples cited by him, by way of illustration, prove this. They show that the law deals with definite reasons, and is not led into uncertain speculation. They are no authority for the maxim as now commonly used. But is not the maxim capable of a more exact application? What is the precise thing which is a proximate cause to be searched out, and what is the precise thing which is a remote cause to be neglected in true philosophical reasoning? Bacon adopts Aristotle's classification of causes, but the agreement between them is deeper than this. Aristotle, in his "Organon,"1 says, "there is a difference between knowing that a thing is, and knowing why it is, and the science of the why, has respect to "τὸ πρῶτον ἀίτον" or the proximate cause, causa proxima, as it is translated by the school-men ; thus agreeing with Bacon in the "Novum Organon," that true knowledge is knowledge by causes, and that knowledge by causes, is knowledge by the proximate cause.
This and parallel passages in Aristotle are the foundation for the scholastic division of causes into proximate and remote. What do the schoolmen mean by this division? Stripped of technical language and verbal refinement, it is this: A proximate cause is one in which is involved the idea of necessity. It is one the connection between which and the effect is plain and intelligible; it is one which can be used as a term by which a proposition can be demonstrated, that is, one which can be reasoned from conclusively. A remote cause is one which is inconclusive in reasoning, because from it no certain conclusion can be legitimately drawn. In other words, a remote cause is a cause the connection between which and the effect is uncertain, vague, or indeterminate. It does not contain in itself the element of necessity between it and its effect. Marsilius Ficinus says, "From the remote cause the effect does not necessarily follow." This idea of necessity—the necessary connection between the cause and the effect—is the prime distinction between a proximate and a remote cause. The proximate cause being given, the effect must follow. But although the existence of the remote cause is necessary for the existence of the effect (for unless there has been a remote cause there can be no effect), still the existence of the remote cause does not necessarily imply the existence of the effect. The remote cause being given, the effect may or may not follow. "Nam posita causa remota non ponitur effectus, sed ipsa remota removetur.' The schoolmen agree in saying that a knowledge of the proximate cause is a knowledge of the διότι, the propter quid, the reason why. They agree in saying that there can be no demonstrative reasoning but by the proximate cause. Averroes, the most famous of the Arabian schoolmen, in his Commentary on the Post Analytics,6 says, "It is necessary for demonstration, showing why a thing is, that it should be by a proximate cause...
The scholastic distinction between proximate and remote causes has nothing to do with their relative distance from the effect either in space or time. The schoolmen did not view them as connected together like the links of a chain. The distinction has nothing to do with their retrogression from the effect as long as the effect necessarily follows from the cause. As long as the element of necessity exists in the mind, each cause in the line of causation is called, not strictly a cause, but an instrument of the cause which impels it to action. The last cause, looking backward from the effect, from which the effect, as they say, necessarily follows, is called, the proximate cause... In this manner this division of causes is traced from Aristotle through the schoolmen to Bacon's time. The maxim containing it can mean but this, that if the law is to be perfected as a science, as Bacon hoped it would be, its expounders must deal with what is certain. They must not attempt to draw inferences from inconclusive premises. They must not wander from the point into misty generalities. Thus understood, it is a caution for which, if it were only followed, the practitioners of the law could not be too grateful. After the publication of the works of Bacon and Descartes, scholastic logic, the credit of which had been much shaken by the revival of learning, and (as the schoolmen generally were the champions of the Romish Church) had been still more shaken by the Reformation, fell rapidly and deeply into disrepute. Its doctrines were not only forgotten, but its name became a byword. Duns Scotus achieved a fame bounded only by the limits of the civilized world. He died in his thirty-fourth year, the intellectual giant of the time. His works in bulk are equal to those of some of the law writers of the present day, although he does not appear to have written any thing for the sole purpose of swelling their size. They are extant in twelve folio volumes. His clearness, depth, and power of mind would put to the blush the bold ignorance of those who speak patronizingly of scholastic subtlety, if, happening to possess the capacity to understand logical statement and close reasoning, they should perchance read a page of his writing. He was the greatest of the British schoolmen. As the followers of Descartes are called Cartesians, and the followers of Kant, Kantians ; so, from the name of Duns Scotus, the scholastic logicians were called Dunces. The contempt which came to be entertained for scholastic philosophy is seen in the present meaning of the word. We have seen that Bacon adopts Aristotle's classification of causes, which was also the classification of the schoolmen. This is the formal, the final, the material, and the efficient. But this is a grouping together of different things because they have the same name. There is no real, and nothing but a fanciful, similarity between them. The efficient cause alone is the one which is involved in causation. The efficient cause is the cause which produces effects. Causation is the law of cause in relation to effect. Nothing more imperils the correctness of a train of reasoning than the use of metaphor. By its over free use the subject of causation has been much obscured. The phrase "chain of causation," which is a phrase in frequent use when this maxim is under discussion, embodies a dangerous metaphor. It raises in the mind an idea of one determinate cause, followed by another determinate cause, created by the first, and that followed by a third, created by the second, and so on, one succeeding another till the effect is reached. The causes are pictured as following one upon the other in time, as the links of a chain follow one upon the other in space. There is nothing in nature which corresponds to this. Such an idea is a pure fabrication of the mind. There is but one view of causation which can be of practical service. To every event there are certain antecedents, never a single antecedent, but always a set of antecedents,.. From every point of view from which we look at the facts, a new cause appears. In as many different ways as we view an effect, so many different causes, as the word is generally used, can we find for it. The true, the entire, cause is none of these separate causes taken singly, but all of them taken together. These separate causes are not causes which stand to each other in the relation of proximate and remote, in any intelligible sense in which those words can be used. There is no chain of causation consisting of determinate links ranged in order of proximity to the effect. They are rather mutually interwoven with themselves and the effect, as the meshes of a net are interwoven. As the existence of each adjoining mesh of the net is necessary for the existence of any particular mesh, so the presence of each and every surrounding circumstance, which, taken by itself we may call a cause, is necessary for the production of the effect. In this view of causation there is nothing mysterious. Common people conduct their affairs by it, and die without having found it beyond their comprehension. When the law has to do with abstract theological belief, it will be time to speculate as to what abstract mystery there may be in causation; but as long as its concern is confined to practical matters it is useless to inquire for mysteries which exist in no other sense than the sense in which every thing is a mystery. In physical science there is a search for what may with some propriety, perhaps, be called the proximate cause. It is a search for the conditions immediately antecedent to and concomitant with the effect. For instance, it is observed that the limbs of the body apparently move in obedience to the will. The assumption is made that they do actually so move, and the inquiry is for the cause of the movement. The will and the movement are the limits of the investigation. The cause is to be found between those limits. When the inquirer examines the hones and the muscles, and the attachments of the muscles to the bones, he sees a mechanism obviously adapted to produce this effect by the contraction of certain of the muscles. Examining further he finds a connection with the brain and other nervous centres by nervous filaments with which all muscles are provided, which appear to be under the control of the will. From this, in connection with other considerations, he infers that the nervous filaments are the media through which a stimulus is conveyed, and that this is a part of the immediate cause of the voluntary movement. It may be called a part of the proximate cause, since it is invariably present, and the nearest to the effect of any thing which we at present know. But this only raises another question, as to how the will acts upon the nervous filaments. If this should be ascertained to be by the action of the brain, the inquiry would then be in what manner does the brain act. There would also still be the further inquiry as to how the muscles are stimulated to contraction, and the still further one as to how they in fact contract. The inquiry for the cause thus draws closer and closer to the effect without ever finding a true proximate cause. The word proximate therefore, in such an inquiry as this, is not an absolute but a relative term. It signifies the nearest known cause considered in relation to the effect, and in contrast to some more distant cause. In the law there is no such investigation as this. The law, in the application of this maxim, is not concerned with philosophical or logical views of causation. When the maxim is applied, the whole body of facts has been ascertained by testimony. The facts are the subject of inquiry for a single purpose. That purpose is to determine the rights and liabilities of the respective parties to the proceedings. Those facts alone are viewed as causes and effects which have a direct bearing upon those rights and liabilities. The question is, sometimes, whether a cause is proximate to an effect. Sometimes, it is which of several causes is proximate to the effect; sometimes, the question is whether an effect shall be referred to a certain cause as its proximate result; sometimes, it is to which of several causes the effect shall be so referred. These, though different views of the same thing, are often distinct subjects of inquiry. The inquiry is often one of difficulty. The difficulty is not owing to any great ambiguity in the meaning of the word cause. That word is used in its popular signification. One difficulty is, that philosophy and metaphysics are sometimes brought into a discussion to which they do not belong. Another is, that cause and effect are often viewed as parts of a "chain of causation," and the discussion thus becomes meaningless. The chief difficulty, however, is that the term proximate and the term remote have no clear, distinct, and definable significations. Sometimes, causes are decided to be proximate which are remote in time ; sometimes those are decided to be proximate which are remote in space. The division is neither scientific nor logical. It is not the scholastic division, though it often has many of its characteristics. Above all, it is not a fixed and constant division. It varies in different classes of actions. The same cause and effect which would be considered proximate in one class of actions, the attendant circumstances being unchanged, would be considered remote in others. The meaning of the terms, proximate and remote, is contracted or enlarged, according to what is the subject-matter of the inquiry. The maxim, when applied in actions of contract, is essentially a rule of construction. It is the same thing to say a thing comes within a contract as it is to say the contract embraces the thing. It is the same thing to say the loss is a proximate consequence of a peril insured against, as it is to say that the parties intended that such a loss should be covered by the policy. The different forms of expression are one in meaning. A policy of insurance is a contract of a fixed form. By use its terms have obtained a settled meaning. Its subject-matter is extensive. It is a contract made in the interest of trade. Large amounts of property are covered by policies containing the same stipulations. The contract is one of indemnity. In determining the question, whether a peril insured against was the proximate or the remote cause of a loss; or, what is the same question, whether a loss of that general description was intended by the parties to be covered by the policy, the peculiar nature of a policy of insurance, and the class of interests it covers, are taken into account. The particular intent of the parties is subservient to the public bearing of the question. The terms proximate and remote, in their application to questions of insurance, thus receive in some respects a more enlarged, and in some a more restricted, signification than they have when they are used in giving a construction to other contracts. But the maxim is as well applicable as a rule of construction for all contracts. In actions for negligence, a defendant is held liable for the natural and probable consequences of his misconduct. In this class of actions his misconduct is called the proximate cause of those results which a prudent foresight might have avoided. It is called the remote cause of other results. In determining the amount of damages in an action of contract, the breach of contract is called the proximate cause of such damages as may reasonably be supposed to have been contemplated by the parties. If there are other damages, of those it is called the remote cause. There is no settled rule for the application of the maxim in determining the damages in actions of tort. In such actions, the damages, which are called proximate, often vary in proportion to the misconduct, recklessness or wantonness of the defendant. Our anticipations of the future are founded upon our experience of the past. The experience of the past is the experience of the successions of causes and effects which always surround us. We can estimate, with a reasonable degree of certainty, the probabilities of the future occurrence of many of these successions. About successions of this kind men make contracts. Large classes of such successions can be grouped together, and the order and frequency of their happening can be predicted from past experience with something which approaches to mathematical precision. With events of this kind, underwriters deal. Experience also teaches us that various effects, which we can foresee with a greater or less degree of certainty, will or may follow from our own acts. The law makes us responsible for those effects of voluntary acts which might reasonably have been foreseen, or which are of a kind analogous to effects which might thus have been foreseen. There is generally no other way of determining whether events analogous to them in kind, were or might have been anticipated or foreseen, than by an appeal to experience. By applying this maxim, we make that appeal. We determine whether given causes and effects are proximate or remote, in the legal sense of those words, from our own experience of the succession of cause and effect. The use of the maxim is liable to lead to error by withdrawing the attention from the true subject of inquiry. We cannot add clearness to our reasoning by talking about proximate and remote causes and effects, when we mean only the degree of certainty or uncertainty with which the connection between cause and effect might have been anticipated. But this is an inconvenience which must be submitted to by those who attempt to make a practical application of the maxim.