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Claims for Recognition and the Generalized Other: The Reasonable Person and Judgment in Criminal Law

Published online by Cambridge University Press:  18 July 2014

Diana Young
Diana Young
Affiliation:
Department of Law, Carleton University, 1125 Colonel By Drive, Ottawa, ON K1S 5B6, diana_young@carleton.ca
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Abstract

In this paper I consider the image of the reasonable person in criminal law and its relationship to larger theoretical controversies concerning abstract universal principles and the particularities of individual experience under conditions of diversity. Using Seyla Benhabib's dichotomy of the concrete and generalized other as an illustration of this conflict, I argue that the image of the reasonable person in criminal law lies at the juncture of the abstract and the concrete, and of normative and empirical reasoning. As a result, the image of the reasonable person is often the focal point of critiques of the marginalizing effect of abstract universalism in criminal law. However, in some cases the image of the reasonable person acts not as a universal standard of conduct but as a site within which claims for recognition of various types of concrete experience can be made. While the reasonable person is sometimes a general normative standard against which concrete actions are evaluated, concrete reality also acts as a normative standard against which various assumptions about the reasonable person are evaluated.

Résumé

Dans cet article, j'examine l'image de la personne raisonnable dans le domaine de la loi criminelle. J'étudie cette image à l'aide des théories controversées des principes universels abstraits et des particularités de l'individu vivant dans des conditions de diversité. En me basant sur la dichotomie de Seyla Benhabib de l'autre concret et de l'autre généralisé, je soutiens que l'image de la personne raisonnable dans le contexte de la loi criminelle est à la jonction de l'abstrait et du concret, du normatif et de la raison empirique. Par conséquent, l'image de la personne raisonnable est souvent le point central de critiques des effets marginaux de l'abstrait universel de la loi criminelle. Par contre, dans certains cas, l'image de la personne raisonnable agit non pas comme un standard universel de conduite, mais comme un site à travers lequel des affirmations de reconnaissance des différents types d'expérience concrète peuvent être faites. Tandis que la personne raisonnable représente parfois un standard normatif général contre lequel des actions concrètes sont évaluées, la réalité concrète agit également comme un standard normatif contre lequel différentes présuppositions à propos de la personne raisonnable sont évaluées.

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 23 , Issue 1-2 , April 2008 , pp. 15 - 37
Copyright
Copyright © Canadian Law and Society Association 2008

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References

1 Benhabib, Seyla, Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics (New York: Routledge, 1992), ch. 5Google Scholar.

2 Ibid., 158–59.

3 Ibid., 159.

4 Ibid., 163.

5 Rawls, John, Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001)Google Scholar.

6 Rawls, John, Political Liberalism (New York: Columbia University Press, 1996), 9Google Scholar.

7 In criminal law, the exception to this rule with respect to people suffering from mental illnesses is set out in s. 16 of the Criminal Code. It is based, tellingly, not on the severity of the mental illness suffered by the accused but on the effect of that illness on the accused's capacity for moral reasoning.

8 Young, Iris, “Communication and the Other: Beyond Deliberative Democracy,” in Democracy and Difference: Contesting the Boundaries of the Political, ed. Benhabib, Seyla (Princeton, NJ: Princeton University Press, 1996), 121Google Scholar.

9 Nedelsky, Jennifer, “Embodied Diversity and Challenges to Law,” McGill Law Journal 42 (1997), 107Google Scholar.

10 Nussbaum, Martha, Poetic Justice: The Literary Imagination and Public Life (Boston: Beacon Press, 1995), 73 (quoting Adam Smith)Google Scholar.

11 Benhabib, , Situating the Self, 99Google Scholar.

12 Hart, H.L.A., The Concept of Law (London: Oxford University Press, 1961)Google Scholar; Dworkin, Ronald, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977)Google Scholar.

13 For an interesting discussion of the construction of indecency and obscenity, see Valverde, Mariana, Law's Dream of a Common Knowledge (Princeton, NJ: Princeton University Press, 2003)Google Scholar.

14 In jury trials, it is the jurors who perform this function. In Canada, however, the vast majority of trials take place before a judge sitting alone, who makes findings of both fact and law.

15 [1997] 3 S.C.R. 494, 151 D.L.R. (4th) 193, 118 C.C.C. (3d) 353 [R.(D.S.) cited to C.C.C. (3d)].

16 Ibid. at 371.

17 See, e.g., Reference Re s. 94(2) of the Motor Vehicle Act (B. C), (1985) 23 C.C.C. (3d) 289, 29 D.L.R. (4th) 536, [1985] 2 S.C.R. 486, which elevated a requirement of fault based on intent to a constitutional requirement of conviction.

18 Benhabib, , Situating the Self, 162Google Scholar.

19 Ibid., 153: “I want to distinguish substitutionalist from interactive universalism. Interactive universalism acknowledges the plurality of modes of being human, and differences among humans, without endorsing all these pluralities and differences as morally and politically valid. While agreeing that normative disputes can be resolved rationally, and that fairness, reciprocity and some procedure of universalizability are constituents, that is, necessary conditions of the moral standpoint, interactive universalism regards difference as a starting point for reflection and action.”

20 [1993] 3 S.C.R. 3, 83 C.C.C. (3d) 346, 23 C.R. (4th) 189 [Creighton cited to CCC (3d)].

21 [1993] 3 S.C.R. 122, 83 C.C.C. (3d) 526, 23 C.R. (4th) 335.

22 [1993] 3 S.C.R. 76, 83 C.C.C. (3d) 494, 23 C.R. (4th) 280.

23 Creighton at 359.

24 Lamer uses the example of an illiterate person handling a container of explosive material that is clearly labelled as such. In such a case, it would be impossible for the accused to know the nature of the substance he was handling and thus to take appropriate precautions.

25 [1990] 1 S.C.R. 852, 55 C.C.C. (3d) 97, [1990] 4 W.W.R. 1 [Lavallee cited to S.C.R.].

26 Ibid. at 874.

27 Ibid. at 876.

28 In R. v. Mallot, [1998] 1 S.C.R. 123, 121 C.C.C. (3d) 456, the Supreme Court refused to speculate as to whether this would also hold for situations where a man is battered, but presumably it would apply in an appropriate case.

29 (1984), 37 C.R. (3d) 198, 61 N.S.R. (2d) 33, 133 A.P.R. 33, 9 C.C.C. (3d) 449 (C.A.) [Whynot cited to C.R.(3d)].

30 Ibid. at 218.

31 Whynot (Jane Stafford) eventually pleaded guilty to manslaughter and was sentenced to six months' incarceration and two years' probation.

32 Lavallee at 346.

33 (1995) 37 C.R. (4th) 97, 22 O.R. (3d) 275 (Gen. Div.).

34 It is worth noting that although Trainor J. based his ruling in Lalonde primarily on the defence of necessity, there was also a real issue as to whether the Crown had made out the elements of the offence. Since Van Deyl made no financial contribution to the household, it was likely that Lalonde would have been eligible for the same level of benefits from General Welfare that she had been receiving from Family Benefits. Trainor J. wondered whether it could “be said in the particular circumstances of this case that the public have been deprived, when this applicant could have obtained welfare rather than family benefits and both systems are under the ultimate control of the Ministry and the paymaster is the taxpayer of this country?” (at 109). In addition, it seemed likely that the ministry's agents knew about Lalonde's situation but looked the other way because they also knew that she would be eligible for General Welfare in any case.

35 It seems likely that the defence's failure to offer expert testimony was the result of financial constraints. The use of the necessity defence in cases like this was novel, and probably Legal Aid would not provide funding for expert testimony in support of it, particularly in view of the fact that there were other, less exotic defences available.

36 (June 21, 1991), Lilles Terr. Ct. J. (Y.T. Terr. Ct.).

37 Ibid. at 104.

38 [2004] S.J. No. 755.

39 Ibid. at para. 64.

40 Ibid. at para. 52. Throughout the decision the Court refers to M.L.B.'s grandson as “J(1)” and to M.L.B.'s daughter as “J(2).”

41 [1996] 1 S.C.R. 1075, 48 C.R. (4th) 199.