After the Reasonable Man: Getting over the Subjectivity Objectivity Question

New Criminal Law Review, Vol. 11, pp.33-50, (2008)

Georgetown Public Law Research Paper No. 12-167

19 Pages Posted: 8 Nov 2012

See all articles by Victoria Nourse

Victoria Nourse

Georgetown University Law Center

Date Written: 2008

Abstract

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 reasonable 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 standard 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 standard 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.

Keywords: reasonable man, battered women, violence, self-defense, provocation, heuristic, subjectivity, objectivity, majoritarian norms

JEL Classification: K00, K14, K19

Suggested Citation

Nourse, Victoria, After the Reasonable Man: Getting over the Subjectivity Objectivity Question (2008). New Criminal Law Review, Vol. 11, pp.33-50, (2008), Georgetown Public Law Research Paper No. 12-167, Available at SSRN: https://ssrn.com/abstract=2173003

Victoria Nourse (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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