Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2008 After the Reasonable Man: Getting Over the Subjectivity Objectivity Question Victoria Nourse Georgetown Law Center, [email protected] Georgetown Public Law and Legal Theory Research Paper No. 12-167 This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/1123 http://ssrn.com/abstract=2173003 11 New Crim. L. Rev. 33-50 (2008) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Criminal Law Commons, Law and Gender Commons, Legal History Commons, and the Legal Theory Commons NCLR1101_02.qxd 3/25/08 3:40 PM Page 33 AFTER THE REASONABLE MAN: GETTING OVER THE SUBJECTIVITY/ OBJECTIVITY QUESTION Victoria Nourse* This article challenges the conventional notion of the “reasonable man.” It argues that we make a category mistake when we adopt the metaphor of a human being as the starting point for analysis of the criminal law and instead offers an alternate approach based on heuristic theory, reconceiving the rea- sonable man as a heuristic that serves as the site for debate over majoritarian norms. The article posits that the debate over having a purely subjective stan- dard and a purely objective standard obscures the commonsense necessity of having a hybrid standard, one which takes into account the characteristics of a particular defendant at the same time that it provides normative guidance. The analysis then proceeds to examine what happens when this hybrid stan- dard is applied to the problem of the reasonable woman. The article concludes by arguing that equality would be better served by a normative analysis rather than one mired in the subjectivity/objectivity debate. There is no more important criminal law concept than the “reasonable man.” The law of murder, duress, provocation, and self-defense depend upon it. Despite its importance, the criminal law’s “reasonable man” is undertheorized in the standard criminal law literature. Aside from major *(Burrus-Bascom Professor of Law, University of Wisconsin; L.Q.C. Lamar Professor of Law, Emory University. An earlier version of this article was presented at a panel, “The Reasonable Person in Criminal Law,” at the 2007 Annual Meeting of the Law & Society Association in Berlin, Germany. Special thanks to Ken Simons, who organized the panel, for comments on this piece, and to Markus Dubber, Victor Tadros, and Tatjana Hörnle, who participated in the panel. New Criminal Law Review, Vol. 11, Number 1, pps 33–50. ISSN 1933-4192, electronic ISSN 1933-4206. © 2008 by the Regents of the University of California. All rights reserved. Please direct all requests for permission to photocopy or reproduce article content through the University of California Press’s Rights and Permissions website, http://www.ucpressjournals. com/reprintInfo.asp. DOI: 10.1525/nclr.2008.11.1.33. | 33 NCLR1101_02.qxd 3/25/08 3:40 PM Page 34 34 | NEW CRIMINAL LAW REVIEW | VOL. 11 | NO. 1 | WINTER 2008 contributions from George Fletcher and Cynthia Lee,1 the “reasonable man” has suffered from fixation upon questions that have led to impasse. Long ago, the criminal law academy appears to have decided that the single most important question about the reasonable man was whether we should require a standard that is “objective or subjective.” This debate finds its way into the criminal law casebook as a question of the “characteristics” of the reasonable person.2 As I hope to show in this paper, this scholarly convention is not the kind of theorization that the “reasonable person” needs; it is time to get over the “subjectivity/objec- tivity” question. Here, I want to issue a very basic challenge: scholars have made an ana- lytic mistake in believing that the reasonable man is a person. The reasonable man is an institutional heuristic,3 and it is a heuristic whose anthropo- morphic form has tended to obscure important questions. In this paper, I reconsider the reasonable person as both release and restraint of majoritar- ian norms. I then compare the standardized individualist view (which focuses on characteristics) with a more institutionally realist (and ecologi- cally rational) approach. Finally, I conclude with some remarks on the cost of anthropomorphizing the inquiry, with particular attention to the debate about the reasonable woman. One initial note: the title of this paper is intended to provoke a pre- dictable response. If the author is a woman and she says something about the “reasonable man,” then many will assume that she must be arguing for a “reasonable woman” standard in the criminal law. In fact, I aim to dis- avow such an approach as alone adequate to reveal the criminal law’s inequalities. I am distinctly skeptical that feminists advance their cause by perpetuating the “identity characteristics” debate; I am even more skepti- cal of feminist critics who seem to have constructed the great questions of battered women in terms of their subjectivity—as if to delegitimize the inquiry from the start by rendering violence a matter of “her perception.” In the end, this anthropomorphizing move does more to obscure than 1. Cynthia Lee, Murder and the Reasonable Man (2003); George P. Fletcher, The Right and the Reasonable, 98 Harv. L. Rev. 949 (1985). 2. John Kaplan et al., Criminal Law: Cases and Materials 630–48 (3d ed. 1996); Sanford H. Kadish et al., Criminal Law and Its Processes: Cases and Materials 801–26 (6th ed. 1995). 3. See Heuristics and the Law (Gigerenzer & Engel eds., 2006). NCLR1101_02.qxd 3/25/08 3:40 PM Page 35 AFTER THE REASONABLE MAN | 35 reveal: equality takes two, it is inherently comparative.4 It cannot be found in the minds or hearts of individuals, male or female. The important question is “not whether the law has become too soft or subjectified but what we mean by its objectivity.”5 That question cannot be answered by referring solely to the text of the law, for no law is self- applying. The question can only be answered by confronting the ways in which law moves from rule to context. The law as applied is mediated, it is bent, by the norms of culture, of family and sex and race. The basic assumption of this paper (elaborated elsewhere) is that the move from rule to context depends upon heuristics. I. THE SUBJECTIVE/OBJECTIVE REASONABLE MAN DEBATE There has been a consensus among American criminal law scholars that the question of objective and subjective standards in the criminal law is ubiquitous and important. If one looks at the standard casebooks that have been used for the past twenty years, one sees the debate literally lit- tered throughout the pages, in discussions of doctrines as varied as negli- gence, provocation, and self-defense. Traditionally, the inquiry has taken the form of a question of the “identity” of the reasonable person: whether we should conclude, for example, that the reasonable person should include characteristics of age (the reasonable young male) or sex (the rea- sonable woman) or culture (the reasonable Asian woman).6 The first question I want to ask about this scholarly convention is what is at stake. After all, the real live doctrine (as opposed to the casebooks’ version of the doctrine) suggests that this is quite literally an academic 4. Kenneth W. Simons, The Logic of Egalitarian Norms, 80 B.U. L. Rev. 693 (2000). 5. V.F. Nourse, Self-Defense and Subjectivity, 68 U. Chi. L. Rev. 1235, 1236 (2001). 6. See Director of Public Prosecutions v. Camplin, 2 All E.R. 168 (1978) (fifteen-year- old boy who had been raped raising question whether he should be held to a standard of a reasonable person of his age); State v. Wanrow, 559 P.2d 548 (Wa. 1977) (jury instruction on reasonable man rejected on ground that it was sex discrimination); People v. Wu, 286 Cal. Rptr. 868, 884 (Cal. App. 1991) (reversed, in part, for failure to give instruction on Asian culture relevant in part to reasonableness of provocation) (opinion ordered depub- lished). NCLR1101_02.qxd 3/25/08 3:40 PM Page 36 36 | NEW CRIMINAL LAW REVIEW | VOL. 11 | NO. 1 | WINTER 2008 debate: a majority of jurisdictions adopt a standard that is both objective and subjective (a “hybrid” standard).7 This reflects common sense; taken to extremes, no one really wants a standard that is completely subjective or completely objective. If the subjective component of the reasonable man standard includes the norms of the defendant, then we might as well not have a trial (the defendant’s norms will acquit him). So, too, if we eliminate any contextual component, we might as well throw away the criminal code and the jailer’s keys: extreme versions of the objective stan- dard could bar consideration of physical facts such as a deadly threat, or obviously relevant physical characteristics (e.g., the defendant was in a wheelchair). Given this problem of extremes, the Model Penal Code and a majority of jurisdictions adopt some form of “hybrid” standard: the jury must judge the defendant by the standards of the reasonable person, but the reasonable person in the “situation.”8 So, then, what’s the real beef about an objective-and-subjective standard? The subjective/objective debate creates theoretical tensions. First, such a standard appears to unite opposites. Objectivity suggests rule-like character- istics; subjectivity suggests standard-like flexibility. Second, the subjective/ objective debate appears to conflate fact and norm: objectivity suggests a norm-like inquiry about rules; subjectivity suggests an inquiry into minds or facts—an implication heightened by those who emphasize the “charac- teristics” question.