The standard of the reasonable person in the criminal law

This paper attempts to understand the objections to the reasonable person standard in the criminal law, and to sort out the objections that are serious and require much more attention than I have space to give them in this paper from those that are less meritorious. Those that I take to be most meritorious claim that (a) reliance in the criminal law on the reasonable person standard wrongly imposes criminal liability on those whose failure to meet the standard does not reflect culpable indifference; or (b) that such reliance wrongly imposes criminal liability if the failure is due to an inability to do otherwise; or (c) that such reliance wrongly imposes criminal liability if (in the case of self-defense, in jurisdictions requiring a reasonable belief) criminal liability is assigned regardless of whether the defendant is culpable for the unreasonable belief. (The ‘or’ between (a) and (b) and (b) and (c) should be understood inclusively.)

I also identify assumptions concerning the construct of the reasonable person, assumptions that may underlie some of the disagreements as to the value of this standard. The assumptions are not easy to pinpoint, and I suspect that a failure to bring them to the surface has been a barrier to fruitful discussion of the pros and cons of the reasonable person standard. One assumption (and the one I endorse) has it that the reasonable person is to be understood abstractly, whereas on the competing view, the reasonable person of the reasonable person standard should be thought of as a particular person (e.g., the man on the Clapham omnibus) with a plethora of “default” characteristics. Objections to the effect that the reasonable person standard “normalizes” (because the reasonable person is thought to be a sort of “average” or “ordinary” person) trade on the view that we are to be picturing a particular sort of person.

I intend my essay to be in the service of a larger aim of (1) working out how the construct of the reasonable person should best be understood for the purposes of the criminal law and then (2) considering whether the standard should be retained, an aim towards which this paper is only a first step.