David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Criminal Law and Philosophy 2 (2):137-162 (2008)
Criminal law commonly requires judges and juries to decide whether defendants acted reasonably. Nevertheless, issues of reasonableness fall into two distinct categories: (1) where reasonableness concerns events and states, including risks of which an actor is conscious, that can be justly assessed without regard to the actorâs individual traits, and (2) where reasonableness concerns culpable mental states and emotions that cannot justly be assessed without reference to the actorâs capacities. This distinction is significant because, while the reasonable person by which category-1 cases are assessed is a disembodied and impersonal ideal that consists of nothing but the uncompromising values of the jurisdiction, the reasonable person by which category-2 cases are measured must necessarily incorporate some of an actorâs individual traits or risk blaming the blameless. Courts and commentators have thus far approached the task of individualizing or subjectivizing reasonableness in category 2 by trying to determine in advance which individual traits are generally relevant and which are not. I propose an alternative approach that, in addition to applying to negligence and voluntary manslaughter cases alike, derives its content from the social practice of blaming. I propose that a reasonable person in category-2 cases consists of every physical, psychological, and emotional trait an actor possesses, with one exceptionâthe exception being that he possesses proper respect for the values of the people of the state as reflected and incorporated in the statute at hand
|Keywords||Reasonable person Individualization Provocation Negligence Blame|
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