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editRe: "Citation needed" for the definition of "criminal negligence" - e-Study Guide for: Criminal Law and Procedure by John M. Scheb (can't use Google's URL shortener because there's no circuit to check where the links lead?) so, here's the LONG URL: https://books.google.com/books?id=0lbhM-igS3IC&pg=PT123&lpg=PT123&dq=careless,+inattentive,+neglectful,+willfully+blind,+or+in+the+case+of+gross+negligence+what+would+have+been+reckless+in+any+other+defendant.&source=bl&ots=tt7JoIdKTH&sig=QuDkxO8mt1bXo1gkL4MHoQIqGIg&hl=en&sa=X&ved=0CC0Q6AEwA2oVChMIp6GB-LWuyAIVy4sNCh3QTwAs#v=onepage&q=careless%2C%20inattentive%2C%20neglectful%2C%20willfully%20blind%2C%20or%20in%20the%20case%20of%20gross%20negligence%20what%20would%20have%20been%20reckless%20in%20any%20other%20defendant.&f=false — Preceding unsigned comment added by Xan81 (talk • contribs) 18:04, 6 October 2015 (UTC)
Some Criticisms of the "legal fiction" benchmark for "the reasonable person"
editI have more comments on other parts of the article - though I imagine that the below provides a useful start :
"This is not a real person but a legal fiction, an objective yardstick against which to measure the culpability of real people. "
I think that the term "legal fiction" should be viewed as unwarranted within an encyclopedia. The idea of fiction and its application to real life does seem very troublesome – especially given that the contributor to the wiki article believes that such a “legal fiction” could ever be an objective yardstick. Surely objectivity is a word which one associates with scientific degrees of objectivity? If you would accept that objectivity is one of the properties of science that, in a sense is so strongly associated with science as to almost be part of its definition, then that should mean that the term “legal fiction” should not be used in conjunction with the notion of an “objective yardstick” - fiction is very subjective!
“For these purposes, the reasonable person is not an average person: this is not a democratic measure.”
Given the subsequent material contained within the article, surely there is some notion of “averageness” which is applied to determine whether someone is reasonable (the average person, or the average doctor, or the average plumber, gas worker, etc....). Mathematically, one would define the average of a set of quantities in a very exact and specific way using mathematical quantities – are there not at least some kind of QUANTITATIVE descriptions that might describe the average doctor, the average person. Specifically, things like IQ (and, perhaps) even moral and religious statistics seem to be an integral part of what one would reasonably expect to be the average individual.
If one's idea of a democracy is a society in which the votes of all individuals are counted up and then given equal numerical weighting, then (actually) the reasonable person and the average person are more or less the same (it would be reasonable to assume that the reasonable person has a reasonable degree of intelligence – that is, performs to a certain level of attainment on intelligence tests, it would also be reasonable to assume that the reasonable person would define the reasonableness of their moral belief systems via some type of a quantitative test of moral development).
“To determine the appropriate level of responsibility, the test of reasonableness has to be directly relevant to the activities being undertaken by the accused. What the ‘average person’ thinks or might do would be irrelevant in a case where a doctor is accused of wrongfully killing a patient during treatment.”
“Hence, there is a baseline of minimum competence that all are expected to aspire to.”
“This reasonable person is appropriately informed, capable, aware of the law, and fair-minded.”
David Hume would say that given the complete lack of quantitative description in the above, it is all balderdash! :
“If we take in our hand any volume; of divinity or school metaphysics, for instance; let us ask, Does it contain any abstract reasoning concerning quantity or number? No. Does it contain any experimental reasoning concerning matter of fact and existence? No. Commit it then to the flames: for it can contain nothing but sophistry and illusion.”
You are attempting to define something such as, say, the reasonable behaviour of a doctor without recourse to any type of scientific or meritocratic tests/exams/ quantitatively verifiable/describable qualities that a doctor should be able to exhibit. For example, one might imagine that there are grades of doctors – those who have the greatest degree of knowledge, skill, dexterity, etc... (ie: those who are “idealistically perfect” in that they are the best types of doctor which are physically realisable). Thus, a particular doctor should be compared to other doctors of a similar grade. The idea that all doctors have the same level of skill would be incorrect – it would depend on the circumstances. It is necessary to QUANTITATIVELY describe what is meant by a doctor or a professionally competent person. Ideally, such quantitative descriptions would aid in determining benchmarks against which to describe an individuals “reasonableness” or qualifications for being held as a member of some normalised benchmark population against which reasonableness should be measured.
“This standard can never go down, but it can go up to match the training and abilities of the particular accused. In testing whether the particular doctor has misdiagnosed a patient so incompetently that it amounts to a crime, the standard must be that of the reasonable doctor. Those who hold themselves out as having particular skills must match the level of performance expected of people with comparable skills.”
The such standards must be EXPLICITLY and numerically laid out IN FULL in order for individuals declaring themselves as being doctors to declare themselves as such, and in order for those who declare themselves as worthy of judging doctors to have provided a sufficiently objective criteria against which to determine what particular skills must match “ the level of performance expected of people with comparable skills”. Do we expect all doctors to be able to quote “Gray's Anatomy” word for word, every single day of the week (ie: even under stressful circumstances)?
Do we expect all “good” surgeons to have completed at least 100 successful operations without any of their patients having died? There seems to be no quantitative description on these points within the article whatsoever (though my descriptions attempt to quantify – in a good faith/good will manner). No application of scientific method to the notion of “the reasonable benchmark” that is being tauted – as if the individual tauting this benchmark wishes to be the sole judge, jury and executioner of reason itself.
What seems to be stated above is that there are minimum standards that people of professions should be able to attain – then there is as much of an onus on the individual defining the reasonable person to “quantitatively” describe the reasonable person as there is on the reasonable professional to attain those quantitative attributes.
“When engaged in an activity outside their expertise, such individuals revert to the ordinary person standard. This is not to deny that ordinary people might do something extraordinary in certain circumstances, but the ordinary person as an accused will not be at fault if he or she does not do that extraordinary thing so long as whatever that person does or thinks is reasonable in those circumstances.”
This seems to state that the “ordinary person” has standards of reason which are lesser than those for the professional – something which might seem undemocratic and untrue to those who believe in (know of?) a singular and objective truth (which is, of course, open to interpretation). I suppose that the point in the article here is that people in professional positions of power should prove, in various objective ways, that they have a certain level of ability. The question then, is, what is are the objective criteria against which we wish to test individuals. IQ Tests? Other examinations? What? As mentioned above, is someone is declared to be worthy of the position of judge of what reason is, then one would expect that there is a moral onus upon such a judge to provide a quantitatively ideal description of the notion of reasonableness which they shall be judging.