In P. Bystranowski, Bartosz Janik & M. Prochnicki (eds.), Judicial Decision-Making: Integrating Empirical and Theoretical Perspectives. Springer Nature (forthcoming)

Markus Kneer
University of Zürich
This paper presents a series of studies (total N=579) which demonstrate that folk judgments concerning the reasonableness of decisions and actions depend strongly on whether they engender positive or negative consequences. A particular decision is deemed more reasonable in retrospect when it produces beneficial consequences than when it produces harmful consequences, even if the situation in which the decision was taken and the epistemic circumstances of the agent are held fixed across conditions. This finding is worrisome for the law, where the reasonable person standard plays a prominent role. The legal concept of reasonableness is outcome-insensitive: whether the defendant acted in a reasonable fashion or not depends exclusively on her context of action, no matter how things play out. Folk judgments of reasonableness are thus inconsistent with the legal concept of reasonableness. Problematically, in common law jurisdictions, the decision whether a defendant’s behavior was reasonable or not is frequently (though not necessarily) delegated to a lay jury.
Keywords Negligence  Reasonableness  Mens rea  Hindsight bias  Outcome effect
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References found in this work BETA

Moral Luck.B. A. O. Williams & T. Nagel - 1976 - Proceedings of the Aristotelian Society, Supplementary Volumes 50:115-151.
Person as Scientist, Person as Moralist.Joshua Knobe - 2010 - Behavioral and Brain Sciences 33 (4):315.

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Causation and the Silly Norm Effect.Levin Güver & Markus Kneer - forthcoming - In Stefan Magen & Karolina Prochownik (eds.), Advances of Experimental Philosophy of Law. Bloomsbury Press.

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