Reasonableness on the Clapham Omnibus: Exploring the outcome-sensitive folk concept of reasonable

Bystranowski, P., Janik, B. & Prochnicki, M. (Forthcoming). Judicial Decision-Making: Integrating Empirical and Theoretical Perspectives. Springer Nature.

22 Pages Posted: 9 Mar 2021

See all articles by Markus Kneer

Markus Kneer

Department of Philosophy, University of Zurich

Date Written: March 8, 2021

Abstract

This paper presents a series of studies (total N=579) which demonstrate that folk judgments concerning the reasonableness of decisions and actions depend strongly on whether they engender positive or negative consequences. A particular decision is deemed more reasonable in retrospect when it produces beneficial consequences than when it produces harmful consequences, even if the situation in which the decision was taken and the epistemic circumstances of the agent are held fixed across conditions. This finding is worrisome for the law, where the reasonable person standard plays a prominent role. The legal concept of reasonableness is outcome-insensitive: whether the defendant acted in a reasonable fashion or not depends exclusively on her context of action, no matter how things play out. Folk judgments of reasonableness are thus inconsistent with the legal concept of reasonableness. Problematically, in common law jurisdictions, the decision whether a defendant’s behavior was reasonable or not is frequently (though not necessarily) delegated to a lay jury.

Keywords: Negligence, Reasonableness, Experimental Philosophy, Probability, Hindsight Bias

Suggested Citation

Kneer, Markus, Reasonableness on the Clapham Omnibus: Exploring the outcome-sensitive folk concept of reasonable (March 8, 2021). Bystranowski, P., Janik, B. & Prochnicki, M. (Forthcoming). Judicial Decision-Making: Integrating Empirical and Theoretical Perspectives. Springer Nature. , Available at SSRN: https://ssrn.com/abstract=3800110

Markus Kneer (Contact Author)

Department of Philosophy, University of Zurich ( email )

Raemistrasse
Zurich, 8091
Switzerland

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