The meaning of ‘reasonable’: Evidence from a corpus-linguistic study

Lucien Baumgartner & Markus Kneer

In Kevin P. Tobia (ed.), The Cambridge 

Handbook of Experimental Jurisprudence. 

Cambridge University Press (forthcoming)

Abstract

The reasonable person standard is key to both Criminal Law and Torts. What does and does not count as reasonable behavior and decision-making is frequently determined by lay jurors. Hence, laypeople’s understanding of the term must be considered, especially whether they use it predominately in an evaluative fashion. In this corpus study based on supervised machine learning models, we investigate whether laypeople use the expression ‘reasonable’ mainly as a descriptive, an evaluative, or merely a value-associated term. We find that ‘reasonable’ is predicted to be an evaluative term in the majority of cases. This supports prescriptive accounts, and challenges descriptive and hybrid accounts of the term—at least given the way we operationalize the latter. Interestingly, other expressions often used interchangeably in jury instructions (e.g. ‘careful,’ ‘ordinary,’ ‘prudent,’ etc), however, are predicted to be descriptive. This indicates a discrepancy between the intended use of the term ‘reasonable’ and the understanding lay jurors might bring into the court room.

From the Discussion section

Our research reports an intriguing discovery: the expression ‘reasonable’ is most often not just a straightforward descriptive term. In fact, only 17.18% of uses in our sample fall into this category.  Interestingly, other words that are commonly used to elucidate ‘reasonable’ in jury instructions, like ‘average,’ ‘ordinary,’ ‘rational,’ and ‘prudent’ are primarily descriptive. In terms of multidimensional proximity, ‘reasonable’ inhabits a very different part of the space. Considering that these terms are used somewhat interchangeably in jury instructions, our data suggests that jurors enter the courtroom with a different concept than the one intended or expected by legislators. However, it is important to keep in mind that we are not directly comparing the language of laypeople and experts and therefore cannot make direct inferences about possible differences between the two. And yet, judging from the fact that laypeople use ‘reasonable’ in a completely different way than other terms used to characterize ‘reasonable’ in the jury instructions, this suggests, at least indirectly, a certain discrepancy in language use. Furthermore, our results align with the findings by Willemsen et al. (2023) that laypeople tend to use certain terms in a more evaluative manner, compared to legal professionals—at least if the jury instructions are used as a proxy thereof. This disparity in understanding can have significant ramifications during trial, as jurors and legal professionals may not be on the same page. For a more comprehensive investigation of this discrepancy, further comparative studies are required.

A pdf is here.

My quick summary:

The authors argue that beliefs surrounding reasonableness has implications for the law. They suggest that the reasonable person standard should be interpreted as an evaluative standard, rather than a descriptive one. This would mean that jurors would be more likely to consider the social and cultural context when making their judgments about what is reasonable.

The authors also found that other terms that are often used interchangeably with "reasonable" in jury instructions, such as "careful" and "prudent," are more likely to be used in a descriptive sense. This suggests that there is a discrepancy between the way the law intends these terms to be used and the way lay jurors might understand them.

The article concludes by calling for more research on the meaning of "reasonable" in the context of the law. The authors argue that this research could help to improve the fairness and accuracy of the legal system.

Justice before Expediency: Robust Intuitive Concern for Rights Protection in Criminalization Decisions

Bystranowski, P., Hannikainen, I.R. J

Rev.Phil.Psych. (2023).

https://doi.org/10.1007/s13164-023-00674-0

Abstract

The notion that a false positive (false conviction) is worse than a false negative (false acquittal) is a deep-seated commitment in the theory of criminal law. Its most illustrious formulation, the so-called Blackstone’s ratio, affirms that “it is better that ten guilty persons escape than that one innocent suffer”. Are people’s evaluations of criminal statutes consistent with this tenet of the Western legal tradition? To answer this question, we conducted three experiments (total N = 2492) investigating how people reason about a particular class of offenses—proxy crimes—known to vary in their specificity and sensitivity in predicting actual crime. By manipulating the extent to which proxy crimes convict the innocent and acquit those guilty of a target offense, we uncovered evidence that attitudes toward proxy criminalization depend primarily on its propensity toward false positives, with false negatives exerting a substantially weaker effect. This tendency arose across multiple experimental conditions—whether we matched the rates of false positives and false negatives or their frequencies, whether information was presented visually or numerically, and whether decisions were made under time pressure or after a forced delay—and was unrelated to participants’ probability literacy or their professed views on the purpose of criminal punishment. Despite the observed inattentiveness to false negatives, when asked to justify their decisions, participants retrospectively supported their judgments by highlighting the proxy crime’s efficacy (or inefficacy) in combating crime. These results reveal a striking inconsistency: people favor criminal policies that protect the rights of the innocent, but report comparable concern for their expediency in fighting crime.

From the Discussion Section

Our results may bear on the debate between two broad camps that have dominated the theoretical landscape of criminal law. Consequentialists argue that new criminal offenses may be rightfully introduced as long as their benefits, primarily, their effectiveness in combating crime, outweigh their social costs. For example, the decision to approve a travel ban should rely on a calculus integrating both the ban’s capacity to hinder terrorist operations and intercept the terrorists themselves, as well as its detriment to well-meaning travelers. If the former exceeds the latter, there is reason to support the proxy crime—otherwise not (Teichman 2017).

In contrast, non-consequentialists advocate certain categorical constraints on the legitimate scope of criminalization—one of which is non-infringement on the rights of the innocent. From a non-consequentialist perspective, convicting the innocent violates a fundamental tenet of criminal law, and is therefore wrong even if doing so would come with enormous benefits for a law’s expediency—and, in turn, for social welfare. Specifically, negative retributivism is, roughly, the claim that the state has a categorical obligation not to punish innocents nor punish the guilty more than they deserve; but it does not have a similar moral obligation to punish all offenders (Bystranowski 2017; Hoskins and Duff, 2021).

The research is here.

Moral Appraisals Guide Intuitive Legal Determinations

Flanagan, B., de Almeida, G. F. C. F., et al (2021). 

SSRN Electronic Journal.

https://doi.org/10.2139/ssrn.3955119

Abstract

Objectives:

We sought to understand how basic competencies in moral reasoning influence the interpretation and application of private, legal, and institutional rules. 

Hypotheses:

We predicted that moral appraisals, implicating both outcome-based and mental state reasoning, would shape participants’ application of various rules and statutes—and asked whether these effects arise differentially under intuitive versus reflective reasoning conditions. 

Methods:

In six vignette-based experiments (total N = 2502), participants considered a wide range of written rules and laws and were asked to decide whether a protagonist had violated the statute in question. We manipulated morally relevant aspects of each incident—including the valence of the statute’s purpose (Experiment 1) and of the outcomes that ensued (Experiments 2 and 3), as well as the protagonist’s accompanying mental state (Experiment 5). In two studies, we simultaneously varied whether participants decided under time pressure or following a forced delay (Experiments 4 and 6). 

Results: 

Integrative moral appraisals of the rule’s purpose, the agent’s extraneous blameworthiness and their epistemic state impacted legal determinations, and helped to explain participants’ departure from rules’ literal interpretation. These counter- literal verdicts were stronger under time pressure and were weakened by the opportunity to reflect. 

Conclusions: 

Under intuitive reasoning conditions, legal determinations draw heavily on core competencies in moral cognition, such as outcome-based and mental state reasoning. In turn, cognitive reflection dampens these effects on statutory interpretation, giving rise to a broadly textualist response pattern.

Public Significance Statement

When deciding whether someone has violated a written rule or law, lay judges initially consult their moral instincts about the incident. In other words, the capacity for legal reasoning draws on our basic moral sense—a finding that resonates with theories of natural law. With enough time to reflect, they then draw closer to the letter of the law. This finding could help to explain a recurring observation: for ‘frontline’ decisions made under time constraints (e.g., while policing) to be contested in court after a more careful exercise in statutory interpretation.

The research is here.

Proximate Cause Explained: An Essay in Experimental Jurisprudence

Knobe, Joshua and Shapiro, Scott J.
University of Chicago Law Review,
Forthcoming.
https://ssrn.com/abstract=3544982

Abstract

Among the oldest debates in American jurisprudence concerns the concept of “proximate cause.” According to so-called formalists, the legal concept of “proximate cause” is the same as the ordinary concept of “cause.” The legal question of whether a cause is proximate for the purposes of establishing tort liability, therefore, is an objective matter about the external world determinable by familiar descriptive inquiry. By contrast, legal realists think that issues of proximate causation are disguised normative questions about responsibility. As the realists William Prosser and Robert Keeton put it, “Proximate cause is better called ‘responsible cause’.”

Recent work in cognitive science has afforded us new insights into the way people make causal judgments that were unavailable at the time of the original debate between formalists and realists. We now have access to the results of systematic experimental studies that examine the way people ordinarily think about causation and morality. This work opens up the possibility of a very different approach to understanding the role of causation in the law — one which combines the attractive features of both formalism and realism without accepting their implausible consequences.

In addition to providing a model for interpreting the case law of proximate cause, this paper also exemplifies a new way of doing legal theory — a method we call “experimental jurisprudence.” Experimental jurisprudence is the study of jurisprudential questions using empirical methods. Jurisprudential disputes about proximate cause are especially ripe for empirical analysis because the debate revolves around whether the legal concept of proximate cause is the same as the ordinary concept of causation. Interrogating the ordinary concept of causation, therefore, should shed light on this question.

The paper can be downloaded here.