Kneer2022ReasonableClapham

Markus Kneer, "Reasonableness on the Clapham Omnibus: Exploring the outcome-sensitive folk concept of reasonable"

Bibliographic info

Markus Kneer (2022). Reasonableness on the Clapham Omnibus: Exploring the outcome-sensitive folk concept of reasonable. In P. Bystranowski, Bartosz Janik & M. Prochnicki (eds.), Judicial Decision-Making: Integrating Empirical and Theoretical Perspectives. Springer Nature. pp. 25-48.

Commentary

The aim of this study is to explore the difference between the legal concept of reasonableness and the popular concept of reasonableness. The main characteristic of the legal concept of reasonableness is that it is insensitive to outcomes and does not change based on the final outcome. This means that regardless of whether the decision leads to positive or negative outcomes that decision will always be considered reasonable. On the other hand, the popular concept of reasonableness is influenced by the outcome. That is, if the outcome has been positive, it is considered more reasonable than if the outcome has been negative. The interesting thing about this text is that it questions whether the two concepts can coincide. In this regard, it raises two options: either these concepts do not coincide and therefore, in jury trials, juries could be influenced by this fact (the impact of the outcome) and make a biased decision. The other option is that the legal decision does not coincide with the popular decision. Although legal concepts have at some point been developed according to popular beliefs, as seen in the experiments conducted, the legal decision would not always coincide with the popular decision. Therefore, it raises the question of what is the true desired decision. From my point of view, although I understand the distinction made by the author and the question of how it is possible for the popular decision to vary from the legal one, I believe that it is not entirely reasonable to rely on the outcome to decide whether a decision has been reasonable or not. I believe that before making a decision, the possible consequences should be considered and on that basis the decision should be made. Therefore, I believe that the law should reflect this state of immovability. And although it seems reasonable to change one's mind depending on the outcome, I believe that the framework on which the decision is made should be immovable. And this is precisely the weakness I find in this experiment. The author explores this difference of perspectives, which seems reasonable to me, but does not discuss how to reconcile both terms so that they can converge.

Excerpts & Key Quotes

Folk application of reasonableness

"These findings suggest that the folk application of the concept of reasonableness is not subject to a performance error, but that the folk work with a concept of reasonableness which is outcome-dependent."

Comment:

This passage is interesting because it presents the distinction that the author mentions between the legal concept of reasonableness and the popular concept of reasonableness. This opens an interesting debate on which one should be applied in case of a difference in outcomes. On the one hand, it is reasonable to think that, when writing the law, it should be done on an immovable framework. On the other hand, as experiments show, we humans tend to change our minds depending on the outcome of the facts. So it is also reasonable to think that law enforcement should be dynamic. From my point of view I believe that it should be applied on a static framework but that the law should contain enough revisions to be able to continue to reflect popular desires.

Effects of outcome-based decisions

"The potential outcome-sensitivity of reasonableness ascriptions[...]constitutes a serious shortcoming because there is no legal case invoking the reasonable person standard where these two features do not matter."

Comment:

This passage is also interesting because it invites further research on the effects that these outcome-based decisions may have in the judicial setting. In other words, according to the experiments carried out, people perceive facts in different ways depending on whether the outcome was positive or negative. This leads one to think that in jury trials this occurs in the same way, because the decisions that these jurors will make will depend on the outcome. This may in fact mean a discrepancy with the law or that it is applied differently to different people depending on the outcome. For all these reasons, I agree with the author that this is a debate that must be had and that it is an area that should be further investigated to try to minimize these possible biases.

Law's assumption of outcome-insensitive decision

"The law seems to wrongly assume conceptual alignment and unwittingly operate with a technical (outcome-insensitive) concept of reasonableness."

Comment:

This passage is interesting and is in line with the other two. In this case, however, instead of positing that popular decisions are variable and may not conform to the law, he posits the opposite case. This time he explores the possibility that it is the law that is wrong and does not reflect popular wishes. In this case, as discussed in the introduction I believe that the law should remain the "source of truth" but should be subject to constant revision. Leaving it to free interpretation or to vary according to the outcome can lead to unfair situations. In the case of the cargo jets mentioned in the text it basically says (from the popular perspective) "It is only a problem if the cargo jets crashes", in my view, the risk of it crashing is already a problem. So I think the law is right to assume that reasonableness should be viewed from a static perspective, not dependent on the outcome.