Individualizing the Reasonable Person in Criminal Law

Criminal Law and Philosophy 2 (2):137-162 (2008)
Abstract
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 actor’s individual traits, and (2) where reasonableness concerns culpable mental states and emotions that cannot justly be assessed without reference to the actor’s 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 actor’s 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 exception—the 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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DOI 10.1007/s11572-007-9041-2
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References found in this work BETA
An Attitudinal Theory of Excuse.Peter Westen - 2005 - Law and Philosophy 25 (3):289-375.
Self-Defense and Culpability.Jeff McMahan - 2005 - Law and Philosophy 24 (6):751-774.
Two Rules of Legality in Criminal Law.Peter Westen - 2006 - Law and Philosophy 26 (3):229-305.

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Citations of this work BETA
When is Negligent Inadvertence Culpable?Kenneth Simons - 2011 - Criminal Law and Philosophy 5 (2):97-114.

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