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74 Notre Dame L. Rev. 1575 (1998-1999)
Reasonableness and Objectivity

handle is hein.journals/tndl74 and id is 1587 raw text is: REASONABLENESS AND OBJECTIVITY Neil MacCormick* I. INTRODUCTION Law and Objectivity' is a work of rare distinction. It accounts lu- cidly for the elements of objectivity and of subjectivity in legal thought, whether in relation to the elements required by the law for liability, civil or criminal, or in relation to the objectivity, intersubjec- tivity, or even pure subjectivity found in the weighing of legal argu- ments. In relation to the former topic, Kent Greenawalt reminds us that liability judged by the foresight of the reasonable person is objec- tive, by contrast with liability grounded in the actual intentions of an acting person.2 In relation to the latter, while he acknowledges a mea- sure of objective rightness and wrongness and a considerable degree of intersubjective checkability in the weighing and balancing of argu- ments, he nevertheless concludes that, on any fine point of balancing, reasonable people can differ. These differences are not objectively corrigible. To that extent, there remains an element of apparently irreducible subjectivity in the inevitable leeways of legal judgement.3 In deep respect for a distinguished colleague, whom it is a very real honor to join in honoring, I should like to offer some thoughts on the concept of the reasonable in response to the two points I have just highlighted. On the latter in particular, now as in the past, I find myself very much of the Greenawalt camp. In doing so, I am partly restating and partly rethinking some ideas I published a few years ago.4 From the beginnings of my study of law, I have been both fasci- nated and troubled by the concept of the reasonable so frequently used in such diverse contexts by lawyers and legislators in the legal * Leverhulme Personal Research Professor and Regius Professor of Public Law, University of Edinburgh. I KENT GREENAWALT, LAw AND OBJEaCrVITY (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 Reasonabeness, in LEs NOTIONS A CONTENU VARIABLE EN Dgorr 131-56 (Ch. Perelman & Raymond Vander Elst eds., 1984). 1575

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