Reasonableness and Objectivity

Notre Dame Law Review

Volumn 74, Issue 5, 1999, Pages 1575-1603

  MacCormick, Neil ^a  

^a UNIVERSITY OF EDINBURGH   (United Kingdom)

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EID: 0033443577     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (101)

1. KENT GREENAWALT, LAW AND OBJECTIVITY (1992).
2. See id. at 100-08.
3. See id. at 216-28. I hope this is a reasonable summary of a careful and sensitive argument.
4. See Neil MacCormick, On Reasonableness, in LES NOTIONS Á CONTENU VARIABLE EN DROIT 131-56 (Ch. Perelman & Raymond Vander Elst eds., 1984).
5. See Neil MacCormick, The Obligation of Reparation, in NEIL MACCORMICK, LEGAL RIGHT AND SOCIAL DEMOCRACY: ESSAYS IN LEGAL AND POLITICAL PHILOSOPHY 212-31 (1982).
6. See CH. PERELMAN, L'EMPIRE RHETORIQUE: RHETORIQUE ET ARGUMENTATION 40 (1977) ("En fait, ces valeurs font l'objet d'un accord universel dans la mesure où elles restent indeterminées; dès qu'on tente de les préciser, en les appliquant à une situation, ou à une action concrete, les desaccords . . . ne tardent pas à se manifester."). For the English translation, see CH. PERELMAN, THE REALM OF RHETORIC 27 (William Kluback trans., 1982) ("These values are the object of a universal agreement as long as they remain undetermined. When one tries to make them precise, applying them to a situation or to a concrete action, disagreements . . . are not long in coming.").
7. See CH. PERELMAN, L'EMPIRE RHETORIQUE: RHETORIQUE ET ARGUMENTATION 40 (1977) ("En fait, ces valeurs font l'objet d'un accord universel dans la mesure où elles restent indeterminées; dès qu'on tente de les préciser, en les appliquant à une situation, ou à une action concrete, les desaccords . . . ne tardent pas à se manifester."). For the English translation, see CH. PERELMAN, THE REALM OF RHETORIC 27 (William Kluback trans., 1982) ("These values are the object of a universal agreement as long as they remain undetermined. When one tries to make them precise, applying them to a situation or to a concrete action, disagreements . . . are not long in coming.").
8. JULIUS STONE, LEGAL SYSTEM AND LAWYERS' REASONINGS 263-67, 301-37 (1964).
9. See Westminster Corp. v. London & N.W. Ry. Co. [1905] App. Cas. 426, 430 (appeal taken from Eng.). Lord Macnaghten noted, "[A] public body invested with statutory powers . . . must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first." Id. (quoting Lord Macnaghten). Some commentators have doubted the utility of this wide sense of reasonableness. See STANLEY A. DE SMITH, JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 346-54 (J.M. Evans ed., 4th ed. 1980).
10. See COLIN TAPPER, CROSS AND TAPPER ON EVIDENCE 162-63 (8th ed. 1995). Some English judges have tended to discourage the "reasonable doubt" formula, but the Scots have held to it. See ALLAN GRIERSON WALKER & NORMAN MACDONALD LOCKHART WALKER, THE LAW OF EVIDENCE IN SCOTLAND (1964) (noting chapters seven and eight, and especially page 76). At page seventy-six, the authors state: "It is for the Crown to prove the accused's guilt beyond reasonable doubt . . . . The doubt must be reasonable in that it must not be a strained or fanciful acceptance of remote possibilities." Id. at 76; see also Shaw v. H.M. Advocate, 1953 J.C. 51.
11. See COLIN TAPPER, CROSS AND TAPPER ON EVIDENCE 162-63 (8th ed. 1995). Some English judges have tended to discourage the "reasonable doubt" formula, but the Scots have held to it. See ALLAN GRIERSON WALKER & NORMAN MACDONALD LOCKHART WALKER, THE LAW OF EVIDENCE IN SCOTLAND (1964) (noting chapters seven and eight, and especially page 76). At page seventy-six, the authors state: "It is for the Crown to prove the accused's guilt beyond reasonable doubt . . . . The doubt must be reasonable in that it must not be a strained or fanciful acceptance of remote possibilities." Id. at 76; see also Shaw v. H.M. Advocate, 1953 J.C. 51.
12. See, e.g., Donoghue v. Stevenson, [1932] App. Cas. 562 (appeal taken from Scot.). "Reasonable man" is gradually giving way to "reasonable person," and this is much to be welcomed. See Greenawalt's wise words in GREENAWALT, supra note 1, at 145-46.
13. See, e.g., Overseas Tankship (U.K.) Ltd. v. Morts Dock & Eng'g Co. (The Wagon Mound), [1961] App. Cas. 388 (P.C.) (appeal taken from N.S.W.).
14. See, e.g., Occupiers' Liability Act, 1957, 5 & 6 Eliz. 2, ch. 31 (Eng.); Occupiers' Liability (Scotland) Act, 1960, 8 & 9 Eliz. 2, ch. 31 (Scot.).
15. See J.D. HEYDON, THE RESTRAINT OF TRADE DOCTRINE (1971).
16. See, e.g., Unfair Contract Terms Act, 1977, ch. 50 (U.K.).
17. See Matrimonial Causes Act, 1973, ch. 18, § 1(2)(b); Divorce (Scotland) Act, 1976, ch. 39, § 1(2)(b).
18. In what follows, I am profoundly indebted, not only to Greenawalt, see GREENAWALT, supra note 1, but also, and even more, to John Finnis, see JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 100-33 (1993), though in relying as I do on Adam Smith and Robert Alexy, I fall well short of Thomistic value-realism.
19. See ADAM SMITH, THE THEORY OF MORAL SENTIMENTS 129-37 (D.D. Raphael & A.L. MacFie eds., 1976); cf. KNUD HAAKONSSEN, THE SCIENCE OF A LEGISLATOR: THE NATURAL JURISPRUDENCE OF DAVID HUME AND ADAM SMITH 47-52 (1981). I have never found myself persuaded by the "rational choice" version of reasonableness that prevails in the contemporary "economic analysis of law" and commend economists to other aspects of Adam Smith's thought. I gratefully endorse the argument of Heidi Li Feldman. See Heidi Li Feldman, Science, Reason, and Tort Law: Looking for the Reasonable Person, 1 CURRENT LEGAL ISSUES 35, 39-43 (1998).
20. See ADAM SMITH, THE THEORY OF MORAL SENTIMENTS 129-37 (D.D. Raphael & A.L. MacFie eds., 1976); cf. KNUD HAAKONSSEN, THE SCIENCE OF A LEGISLATOR: THE NATURAL JURISPRUDENCE OF DAVID HUME AND ADAM SMITH 47-52 (1981). I have never found myself persuaded by the "rational choice" version of reasonableness that prevails in the contemporary "economic analysis of law" and commend economists to other aspects of Adam Smith's thought. I gratefully endorse the argument of Heidi Li Feldman. See Heidi Li Feldman, Science, Reason, and Tort Law: Looking for the Reasonable Person, 1 CURRENT LEGAL ISSUES 35, 39-43 (1998).
21. See ADAM SMITH, THE THEORY OF MORAL SENTIMENTS 129-37 (D.D. Raphael & A.L. MacFie eds., 1976); cf. KNUD HAAKONSSEN, THE SCIENCE OF A LEGISLATOR: THE NATURAL JURISPRUDENCE OF DAVID HUME AND ADAM SMITH 47-52 (1981). I have never found myself persuaded by the "rational choice" version of reasonableness that prevails in the contemporary "economic analysis of law" and commend economists to other aspects of Adam Smith's thought. I gratefully endorse the argument of Heidi Li Feldman. See Heidi Li Feldman, Science, Reason, and Tort Law: Looking for the Reasonable Person, 1 CURRENT LEGAL ISSUES 35, 39-43 (1998).
22. See GREENAWALT, supra note 1, at 207-31.
23. See ROBERT ALEXY, A THEORY OF LEGAL ARGUMENTATION: THE THEORY OF RATIONAL DISCOURSE AS THEORY OF LEGAL JUSTIFICATION 177-208 (Ruth Adler & Neil MacCormick trans., 1988). Alexy's proceduralist approach follows, but refines, that of Jürgen Habermas.
24. H.L.A. HART, THE CONCEPT OF LAW 127 (1961).
25. See id. at 127-28.
26. Id. at 128-29.
27. Id. at 129.
28. See id.
29. See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 14-45 (1978) [hereinafter DWORKIN, TAKING RIGHTS SERIOUSLY]; see also RONALD DWORKIN, LAW'S EMPIRE 280-82 (1986).
30. See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 14-45 (1978) [hereinafter DWORKIN, TAKING RIGHTS SERIOUSLY]; see also RONALD DWORKIN, LAW'S EMPIRE 280-82 (1986).
31. See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 14-45 (1978) [hereinafter DWORKIN, TAKING RIGHTS SERIOUSLY]; see also RONALD DWORKIN, LAW'S EMPIRE 280-82 (1986).
32. See DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 25, at 44.
33. See id. at 43-45.
34. See HART supra note 20, at 129-30.
35. See id.
36. See id.
37. [1947] App. Cas. 156 (appeal taken from Eng.).
38. 3 L.R.-E. & I. App. 330 (1868).
39. Read, [1947] App. Cas. at 171.
40. Id. at 172.
41. See Lord Irvine of Lairg, Q.C., Judges and Decision-Makers: The Theory and Practice of Wednesbury Review, 1996 PUB. L. 59.
42. See, e.g., Anisminic v. Foreign Compensation Comm'n, [1969] 2 App. Cas. 147 (appeal taken from Eng.).
43. See, e.g., Padfield v. Minister of Agric., [1968] App. Cas. 997 (appeal taken from Eng.).
44. See, e.g., Associated Provincial Picture Houses, Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223 (Eng. C.A.); Secretary of State for Educ. & Science v. Tameside Metro. Borough Council, [1977] 1 App. Cas. 1014 (appeal taken from Eng.); Malloch v. Aberdeen Corp. (No. 2), 1974 S.L.T. 253.
45. See GREENAWALT, supra note 1, at 144-45 (quoting Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1688 (1976)); see also DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION: Fin de Siècle 139 (1997).
46. See GREENAWALT, supra note 1, at 144-45 (quoting Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1688 (1976)); see also DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION: Fin de Siècle 139 (1997).
47. See Kennedy, supra note 39, at 1688.
48. Occupiers' Liability Act, 1957, 5 & 6 Eliz. 2, ch. 31, § 2(2) (Eng.).
49. Id. at § 2(3).
50. Unfair Contract Terms Act, 1977, ch. 50 (Eng.).
51. Id. at ch. 50, § 11(2).
52. Id. at ch. 50, § 11(2), sched. 2.
53. Id.
54. Shaddock & Assoc. Proprietary, Ltd. v. Parramatta City Council, (1981) 150 C.L.R. 225, 231 (quoting Lord Pearce in Hedley Byrne & Co. v. Heller & Partners, [1964] App. Cas. 465, 539 (appeal taken from Eng.)). Compare with Caparo Indus, v. Dickman, [1990] 1 All E.R. 568, 574 (opinion by Lord Bridge of Harwich).
55. See Mutual Life & Citizens' Assurance Co. v. Evatt, [1971] App. Cas. 793 (appeal taken from Eng.).
56. See Shaddock, (1981) 150 C.L.R. at 249-50.
57. Id. at 250 (quoting RESTATEMENT (SECOND) OF TORTS § 552 cmt. a (1977)).
58. Id. at 250-51.
59. See NEIL MACCORMICK, LEGAL REASONING AND LEGAL THEORY 100-51 (rev. ed. 1994).
60. 297 N.Y.S. 2d 156 (1969).
61. See id. at 158.
62. Id. at 159.
63. Id. at 159-60.
64. Id. at 162.
65. See OLIVER WENDELL HOLMES, JR., THE COMMON LAW 88-89 (Mark DeWolfe Howe ed., Harvard Univ. Press 1963) (1881).
66. See Lord Reid, The Law and the Reasonable Man, in PROCEEDINGS OF THE BRITISH ACADEMY, 1968, at 189, 200-01.
67. Id. at 201. See also Warner v. Metropolitan Police Comm'r, [1968] 2 All E.R. 356 (noting Lord Reid's dicta).
68. Collins v. Collins, [1964] App. Cas. 644, 660 (appeal taken from Eng.).
69. Livingstone-Stallard v. Livingstone-Stallard, [1974] Fam. 47, 54 (quoting Justice Dunn) (cited with approval by Lord Justice Roskill in O'Neill v. O'Neill, [1975] 3 All E.R. 289, 295) (emphasis added).
70. For a discussion of the requirements of universality in legal rulings, see MACCORMICK, supra note 52, at 71-86. On the point of present difficulty, it is worth remembering that, as R. M. Hare argues, a principle may be universal even though it contains reference to "bound variables." See R.M. HARE, MORAL THINKING: ITS LEVELS, METHOD, AND POINT 140 (1981). An example would be if we were to say that "every married person ought to treat his or her spouse in a way that his or her spouse finds resonable." See also GREENAWALT, supra note 1. at 141-62 (discussing "The Generality of Law").
71. [1942] App. Cas. 206 (appeal taken from Eng.).
72. Defence (General) Regulations, 1939, reg. 18B, § 1.
73. See Nakkuda Ali v. Jayaratne, [1951] App. Cas. 60, 76-77 (appeal taken from Eng.).
74. See Qualcast (Wolverhampton), Ltd. v. Haynes, [1959] App. Cas. 743, 760 (appeal taken from Eng.).
75. See id.; cf. General Cleaning Contractors v. Christmas, [1953] App. Cas. 180 (appeal taken from Eng.).
76. See, e.g., Roe v. Minister of Health, [1954] 2 Q.B. 66.
77. John Wisdom, Gods, in PROCEEDINGS OF THE ARISTOTELIAN SOCIETY, 1944-1945, at 185, reprinted in JOHN WISDOM, PHILOSOPHY AND PSYCHO-ANALYSIS 149-68 (1957).
78. John Wisdom, Gods, in PROCEEDINGS OF THE ARISTOTELIAN SOCIETY, 1944-1945, at 185, reprinted in JOHN WISDOM, PHILOSOPHY AND PSYCHO-ANALYSIS 149-68 (1957).
79. WISDOM, supra note 70, at 157.
80. Id.
81. [1968] App. Cas. 997 (appeal taken from Eng.).
82. See Secretary of State for Educ. & Science v. Tameside Metro. Borough Council, [1977] App. Cas. 1014 (appeal taken from Eng.).
83. The case of Padfield v. Minister of Agriculture, [1968] App. Cas. 997 (appeal taken from Eng.), itself indicates this point.
84. See Wyngrove's Curator Bonis v. Scottish Omnibuses, Ltd., 1966 Sess. Cas. (H.L.) 47. Nowadays, buses have automatically opening and closing doors, and the standard of "reasonable precautions" for passengers' safety has surely risen, in the manner mentioned in connection with Lord Denning's opinion. See supra note 67 and accompanying text.
85. See Wyngrove, 1966 Sess. Cas. at 52.
86. See id. at 85.
87. See General Cleaning Contractors v. Christmas, [1953] App. Cas. 180 (appeal taken from Eng.). A more up-to-date example, this one concerning duties of disclosure in an insurance context, is the following holding of Justice Potter: "[I]t was the duty of PUM as prudent managing agents seeking unlimited protection . . . to consider with care what required to be disclosed to a prospective reinsurer . . . in particular, the mounting claims for asbestosis and DES which were the reason why the reinsurance was sought in the first place. Further, that duty extended to disclosure of facts which were arguably material so as to avoid unnecessary risk of avoidance." Aiken v. Stewart Wrightson Members' Agency, [1995] 3 All E.R. 449, 481 (quoting Justice Potter).
88. [1951] App. Cas. 850 (appeal taken from Eng.).
89. Id. at 868. For a criticism of this line of reasoning, on the ground that in fact the cricket club and other cricket clubs would have had to pay for insurance, not pay for new fencing, had the decision gone the other way, see P. S. ATIYAH, ACCIDENTS COMPENSATION AND THE LAW 467-69 (1970). The most recent edition of Atiyah's book drops this point, see PETER CANE, ATIYAH'S ACCIDENTS COMPENSATION AND THE LAW (5th ed. 1993), but retains the discussion concerning the weighing of rival values, see id. at 35. See also id. at 150 (suggesting that there might be liability here without negligence).
90. Id. at 868. For a criticism of this line of reasoning, on the ground that in fact the cricket club and other cricket clubs would have had to pay for insurance, not pay for new fencing, had the decision gone the other way, see P. S. ATIYAH, ACCIDENTS COMPENSATION AND THE LAW 467-69 (1970). The most recent edition of Atiyah's book drops this point, see PETER CANE, ATIYAH'S ACCIDENTS COMPENSATION AND THE LAW (5th ed. 1993), but retains the discussion concerning the weighing of rival values, see id. at 35. See also id. at 150 (suggesting that there might be liability here without negligence).
91. See supra text accompanying notes 53-57.
92. 1 Fr. 993 (1899).
93. Id. at 994.
94. See id.
95. See id. at 995.
96. Id. at 998.
97. Matrimonial Causes Act, 1973, ch.18, § 1(2)(b); Divorce (Scotland) Act, 1976, ch. 39, § 1(2)(b).
98. [1972] 1 All E.R. 587, 588.
99. [1975] 3 All E.R. 289.
100. Heidi Li Feldman's article is an important and path-breaking work. See Feldman, supra note 17. She brings to our attention the empirical psychological work of Daniel Kahneman and others to show how far the construct of the "reasonable man" can be rooted in ordinary people's attitudes to risk and risk-taking, and why this differs from the hypotheses built into rational choice theory. Feldman is now embarked on an "Ethico-Psychological" project, aimed at further fleshing out the evaluative as well as descriptive components of "reasonableness." The present work is confessedly longer on ethics and shorter on psychology, but I am sure Feldman is right concerning the need to incorporate findings such as Kahneman's.
101. See SMITH, supra note 17 and accompanying text.