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Individualizing the Reasonable Person in Criminal Law

Criminal Law and Philosophy, Vol. 2, pp. 137-62, June 2008

Posted: 16 Jun 2008  

Peter K. Westen

University of Michigan Law School


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 of affairs, including states of risk 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 type-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 type-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 type-2 cases 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 type-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: punishment, reasonableness, negligence, manslaughter

Suggested Citation

Westen, Peter K., Individualizing the Reasonable Person in Criminal Law. Available at SSRN:

Peter K. Westen (Contact Author)

University of Michigan Law School ( email )

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