Abstract
The ‘reasonable person standard’ (RPS) is often called on in difficult legal cases as the last resource to be appealed to when other solutions run out. Its complexity derives from the controversial tasks that people place on it. Two dialectics require some clarification: the objective/subjective interpretation of the standard and the ideal/ordinary person controversy. I shall move through these dialectics from the standpoint of an EV (ethics of virtues) approach, assuming that on this interpretation the RPS can perform most persuasively its tasks. The all-round model of phronetic agent that I present not only works better than competing models—such as the utilitarian–economic and the Rawlsian—in the law of tort but shows its best potentialities in other kinds of cases. In criminal law and matrimonial law cases the recourse to the EV approach offers through the virtues rich and substantial resources to evaluate conflictual cases. This approach makes the threshold of evaluation much closer to real life than competitors.
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Notes
The concept ‘la diligenza del buon padre di famiglia’ belongs to Italian civil law since ancient Roman law. Ancient Romans discussed of diligentia boni patris familias as the diligence of an abstract model of man: a precise, methodical and trustworthy person who is able to perform carefully and efficiently his own tasks. Sometimes diligentia came to introduce a further element of evaluation of the defendant’s conduct when not all relevant considerations could be covered by the symmetrical concept of culpa (corresponding to the idea of ‘negligence’ in tort law). In contemporary Italian civil law the concept appeared controversial already 50 years ago, presenting a sharp opposition between, on the one hand, a traditional and conservative conception of a ‘man of order’, the average man, someone not far away from Devlin’s ‘right-minded man’ and, on the other, a progressive conception. The second conception seems more efficiency-oriented, requiring a conduct directed to some degree to capitalistic purposes of economic development. This entails that the standard of performance required to the defendant is often increased toward the interests of the plaintiff (especially in a relationship of credit). Cf., Rodotà (1964, pp. 544–546). In my view these models belonging to the civil law tradition express a demand for conduct orientation similar to the one expressed by the ‘reasonable man’ and the ‘man on the Clapham omnibus’ in English common law. Later the model has been expanded in American common law—and beyond—under the rubric of the ‘reasonable person’. Its variety of uses is hardly exemplified by diverse works such as Moran (2003, 2010), Westen (2008) and Cahn (1992).
It should be clear that we may talk here of a parallel between phronesis and prudence only if we take the latter in a sense close to the Latin prudentia that, at least until Thomas the Aquinas, followed Aristotle’s lead. However, semantic evolution seems to have led terms such as prudence and reasonableness into different directions. In the XVIII century Hume listed prudence as one of those qualities that allow great men to perform their part in society, enabling them to promote their own interests. (See Hume 1948, p. 141). Contemporary uses of prudence seem to have followed Hume's (and the utilitarian) lead. The Merriam-Webster online dictionary defines 'prudence' as: ‘the ability to govern and discipline oneself by the use of reason; sagacity or shrewdness in the management of affairs; skill and good judgment in the use of resources; caution or circumspection as to danger or risk’. It seems clear that what remains in the contemporary use of prudence is what is conducive to the improvement of self-interest.
The aspiration toward a phronetic agent I am expressing here is not alone in legal literature. I would say that there is quite a number of resemblances with Zenon Bankowski’s ‘righteous person’ who lives lawfully within the domain of the law. The righteous person does not search for morality and justice outside of the law but inside its boundaries and is aware of the necessity to merge the rational and the emotional side of life, ‘law and love’. See Bankowski (2001 p. 9 ff.).
See Feldman (2000). Feldman’s discussion of negligence and tort law from an EV standpoint has marked the field in a period in which the main competitors were utilitarian or welfarist theories, on the one hand, and Kantian or Rawlsian theories, on the other. While acknowledging a basic alignment with her advocacy of EV, I want to emphasize that my account tends to differ from hers in at least two ways. First, she starts from a standard established in American law which consists of three traits—reasonableness, ordinary prudence and due care for the safety of others (as we shall see in ‘The RPS from the Standpoint of the EV Approach’ section)—and carries forward an EV argument that is based on Aristotelian as much as Humean virtues. By contrast, my analysis moves along some conceptual categories and only at a later stage attempts the application of those categories to some jurisprudential cases. Second, from the point of view of EV analysis, though appealing to Aristotle, Feldman offers a mixed analysis in which Humean elements enter to break the coherence of the Aristotelian picture of human flourishing. Further, I believe that her analysis needs to be integrated in the direction shown by Gardner: the RPS encompasses a variety of elements such as actions, decisions, intentions, emotions, etc. If interpreted according to a coherent Aristotelian EV, the RPS may show all its potentialities to an extent that remains out of reach for Feldman’s pioneering discussion.
Daniel Russell discusses the ‘enumeration problem in virtue ethics’ and, thus, questions connected to what I call ‘different catalogues of virtues’ in Russell (2009, chap. 5).
According to the unity of virtues thesis, phronesis unifies the virtues (a certain set of them, such as the Aristotelian catalogue) and ensures against the possibility of conflicts, on the one hand, while, on the other, the presence of phronesis ensures that all relevant virtues can be called on in certain situations, given its connection with the exercise of each virtue in the Aristotelian conception.
NE 1143 a 19–20. It is important to recall that in Aristotle’s ethics the role of phronesis only appears through its application to the virtues of character. In turn they would be ‘blind’ without the orientation provided by phronesis that identifies the ‘how, when, to what extent’, etc.
Sim v. Stretch (1936) 2 All ER 1242.
57A Am. Jur. 2d Negligence 7 (1989).
The revival of virtue ethics in moral and political philosophy has by now also ranged widely in legal theory. A quick survey of well-known literature in moral theory may include: Anscombe (1958), Foot (1978), MacDowell (1979), Macintyre (1981), Annas (1993), Crisp (1996), Driver (2001) and Hursthouse (2006). In a Christian perspective: Geach (1977). A general reconstruction of the revival of the ethics of virtues is Kruschwits and Roberts (1987). See also Trianosky (1990). The influence of virtue ethics on legal theory is growing as the literature shows. Just as examples one can look at Araujo (1997, p. 433 ff.), Brosnan (1989, p. 335 ff.), Galston (1994, p. 329 ff.) and Garcia (2001, p. 51 ff.).
I may try to explain the charge of elitism addressed to the EV by Russell’s words: ‘none of us shall ever have such a thorough, all-encompassing understanding of the human good as phronesis seems to involve, […] tying phronesis to the virtues will imply that only an intellectually sophisticated elite will be capable of being virtuous’ (Russell 2009, p. 3).
The phronimos is able to make the right choice in the various situations which he may run into during his life. He is able to identify the right option through the employment of the different qualities of phronesis. Without his reading of the correct ethical features of the situation there would be no right choice. Thus, in a way we should say that there is no ‘right choice’ for the agent as pre-existing to the exercise of the virtues. I am grateful to Gardner’s comments that helped me to clarify this point, although he would not share my conclusions.
As shown in the previous section, the understanding of the emotions involved in the case may become an important piece of the puzzle that the judge has to solve. The EV approach may integrate rational and emotional aspects better than other approaches. On the importance of the emotions within EV see Stocker (1996). On the same issue relevant considerations are also in Sherman (1989); partially also Sherman (1997).
McQuire v. Western Morning News (1903) 2 KB 100 (CA) at 109. One may wonder whether the development of the RPS has followed the same route in English and American common law or has run along two parallel but different and separate lines. Writing from outside the common law tradition, resemblances appear to me more outstanding than differences. The common thread that we find in the civil law tradition and in the common law versions of the RPS is a demand for a guide to conduct in which the aspiration to the best skills and capacities (excellences) in the various areas of human activity is mediated with existing practices and achievements. The English ‘reasonable man’ and the ‘man on the Clapham omnibus’ show quite clearly, in my view, the aspiration toward a model of improvement that has to be constantly balanced with what happens in existing practices. It is to emphasize, however, that those English versions of the RPS as much as the American interpretations of the RPS seem to aim at an all-round model which embraces all aspects of human life toward some ideal of human flourishing. I take Feldman’s interpretation of the RPS according to ‘reasonableness, prudence and due care’ in common jury instructions of American law to confirm the same EV model that we find in English law, an all-round model. In turn, what seems to characterize the developments of the RPS in American law is a tendency toward the subjectivization of the standard according to personal characteristics such as age, culture, gender, mental illness, race, sexuality. See Tobia, cit., n. 3 ff.
Rawls’s ‘reflective equilibrium’ represents another clear case of balance between normative principles and people’s pondered opinions. See Rawls (1971, p. 20 ff., 48–51).
Lord Devlin’s character seems very similar to Lord Atkin’s ‘right-thinking person’. Chronologically the latter comes earlier than the former and it is not implausible to think that Lord Atkin’s model may have influenced Lord Devlin’s theory. So, the criticism addressed to Lord Devlin may to some extent be addressed to Lord Atkin as well.
We should only consider what was socially accepted in Nazi Germany or in apartheid South Africa or in ancient slavery societies in order to realize how a merely descriptive understanding of reasonableness can go astray with regard to justice.
United States v. Carroll Towing Co. 159 F. 2d 169 (2d. 1947). The facts of the case can be briefly summarized as follows: the owner of a barge, the Conners Company, appealed to recover the costs of damages from the owner and charterer of the tug that caused the barge to break loose. The owner of the tug, Carroll Towing Company, and the charterer of the tug, Grace Lines, from which the Conners Company sought recovery, argued in return that the Conners Company's failure to keep a bargee on board was fault. Consequently, they argued that the Carroll Towing Company could not recover damages from them or, at least, not fully.
One can wonder about the closeness of the ‘competent person’ to the ‘ordinary person’ and, thus, on the re-presentation of the normalcy challenge under the guise of the competency challenge. However, I believe that ‘competency’ calls on human qualities—in whatever social context—that have the virtues (the Greek word aretai, ‘excellences’) as their legitimate forefathers.
924 F. 2d 872 (9th Cir. 1991).
It might be objected that the use of the ‘reasonable woman standard’ can be considered entirely ‘objective’, but this time objective from the point of view of women. So, there would be no ‘subjectivization’. My reply is that the move from the original standard, interpreted as gender-neutral and valid for all cases, entails to some degree an adaptation to different subjective situations. The elements in E.E.O.C. v. Prospect Airport Service show most clearly that it is not a replacement of objective standards but a trend toward a subjectivization, to the concrete circumstances of the case.
(9th Circuit), No. 07-17221, 9/3/2010.
See bibliography in Moran (2010, p. 1260 ff.).
The EV approach may be helpful also to focus on another well-known area of the criminal law: the law of self-defense. Here the RPS has been often interpreted by male judges and juries in ‘battered woman’ cases so that women's special features—such as different size and strength—were not taken into account and, thus, the male defendant was often found not culpable. By contrast, some writers, including Moran, argue that in cases such as Lavallee in which a repeatedly abused woman shot her partner in the back of the head after a night of fighting the particular conditions of a battered woman should be taken aboard in the RPS that would, otherwise, be inclined toward an excess of self-defense. (Moran 2010, p. 1252 ff.). Against such a picture of this sort of cases I take the EV approach as offering a more balanced understanding. Starting from the correct features of a successful love relationship, this approach would ask for an inquiry into the nuances of the case relationship and all other options that might lead to avoid the use of deadly force. Although battering a woman by her male partner is a denial of love and respect, as it is due to every human being, from the EV approach taking a life looks like an extreme step that should become legitimate only after testing all other possible alternative steps.
It may be objected that the discussion of sexual harassment cases, if based on the EV account, misses entirely the point of this area of the law because it is meant to redress abuse of power. My reply is that such an objection does not take seriously the EV approach which is meant to reinterpret the RPS from an ideal standpoint and offers suggestions toward a model of the best relations between persons, that is—e.g.—in these cases those described by philia and phronesis.
‘Reciprocity is at the heart of Rawls’s conception of public reason and can be interpreted as a legacy of Kant’s morality of equal dignity and rights. See Rawls (1993, p.16 ff.). Theorists such as Fletcher and Keating follow Rawls in applying ‘reciprocity’ to legal theory and, particularly, to the RPS.
Fletcher (1972, p. 537). While Fletcher, writing in 1972, opposed ‘reciprocity’ to ‘reasonableness’, interpreted in utilitarian terms; after Political Liberalism we know that Rawls’s idea of reasonableness is shaped on reciprocity: his basic point is that free and equal citizens owe each other respect. Cf. J. Rawls, Political Liberalism, Columbia University Press, New York, 1993. I have commented on Rawls’s conception of reasonableness from a EV based perfectionist conception in Mangini (2019).
Once again, as in the sexual harassment case, what emerges clearly in this case is the ideal ethical import of the EV approach which goes beyond simple ‘justice as reciprocity’ and equal rights and emphasizes those qualities of character which can make a family ‘the best it can be’—to use Ronald Dworkin’s expression with regard to the theory of interpretation.
Russell shapes his approach to the EV hinging on the centrality of phronesis and worries that the connection between virtues and phronesis will be considered as an opportunity open only to an intellectually sophisticated elite. Russell, cit., 3.
The rights-theories that have been introduced in the discussion of the tort law case may be easily taken to align with Rawls’s view of reciprocity, so my comments on the latter apply also to the former. By contrast, the utilitarian/economic view appears as a competitor only in the tort law case because the nature of the issue in the other two cases is such that that approach to the RPS appears misplaced. (A different issue is that of the pervasiveness of the consequentialist thinking which I will not discuss here.)
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Acknowledgements
This paper has passed through a series of revisions and I have to thank a few people who have greatly contributed to its improvement, reading its different versions: John Gardner, John Goldberg, Frank Michelman, Vittorio Villa and Zenon Bankowski. Needless to say all mistakes remain my responsibility.
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Mangini, M. Is the Reasonable Person a Person of Virtue?. Res Publica 26, 157–179 (2020). https://doi.org/10.1007/s11158-019-09432-5
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DOI: https://doi.org/10.1007/s11158-019-09432-5