This paper presents a series of studies (total N=579) which demonstrate that folk judgments concerning the reasonableness of decisions and actions depend strongly on whether they engender positive or negative consequences. A particular decision is deemed more reasonable in retrospect when it produces beneficial consequences than when it produces harmful consequences, even if the situation in which the decision was taken and the epistemic circumstances of the agent are held fixed across conditions. This finding is worrisome for the law, where (...) the reasonable person standard plays a prominent role. The legal concept of reasonableness is outcome-insensitive: whether the defendant acted in a reasonable fashion or not depends exclusively on her context of action, no matter how things play out. Folk judgments of reasonableness are thus inconsistent with the legal concept of reasonableness. Problematically, in common law jurisdictions, the decision whether a defendant’s behavior was reasonable or not is frequently (though not necessarily) delegated to a lay jury. (shrink)

Faith healing deaths occur infrequently in Canada, but when they do they pose a considerable challenge for criminal justice. Similar to caregivers who absent-mindedly and fatally forget a child in a hot vehicle, faith healers do not intentionally harm their children. It can seem legally excessive and unjust to prosecute achingly bereaved parents. But unlike ‘hot-car’ deaths, faith healing parents are not absent minded in the deaths they cause. Rather, significant deliberation and strength of will is necessary to treat their (...) child’s ailment with faith alone. Two different Criminal Code provisions can be brought to bear upon these deaths, namely, s. 215 ‘Failing to provide the necessaries of life’ and s. 219 ‘Criminal negligence’. From a public, medical, and scientific perspective treating potentially fatal ailments with ‘faith’ and ‘prayer’ seems like reckless endangerment, giving apparent justification to the more serious criminal negligence charge. But, the fault element in the criminal negligence offence continues to be a vexing issue in Canadian jurisprudence. People accused of negligence-based offences are commonly held to the standard of what a reasonable person might predictably have done in similar circumstances. While it is unnecessary for the impartial trier of fact to conceive of faith healing as ‘reasonable’, it is an open question whether faith healers are sufficiently unreasonable to warrant serious criminal condemnation and possible incarceration when their course of action causes death. Is it justifiable to think of faith healers who cause death as criminally unreasonable? That is, do they depart markedly enough from the standard that criminal negligence is rightly attributed to them? Public attitudes toward religion, religious fundamentalism, and healthcare must be considered when trying to discern what a reasonable person does when treating an ailing child at risk of death. (shrink)

The ‘reasonable person standard’ 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 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. (shrink)

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. (shrink)