Introduction

“I felt for the tormented whirlwinds
Damned for their carnal sins
Committed when they let their passions rule their reason.”
― Dante Alighieri

“As a poet and as a mathematician, he would reason well; as a mere mathematician, he could not have reasoned at all.”
― Edgar Allan Poe, The Purloined Letter

“Of all the things I took you for, I never would have taken you for a fool,” Michelle said mockingly to Johnathan, who was sitting, naked on the edge of the bed, his hands cradling his face.

“A fool,” he whispered to himself. “What does that mean, Michelle? Who amongst us is a fool and who is not,” he furiously inquired, standing up.

“You,” she exclaimed as she pulled the bed covering towards her.

“According to you,” he self-confidently said.

“Yes! Of course, according to me. Who else” she asked with a perplexed look on her face.

“The world, reality, the very laws of nature” he declared confidently.

“And that is why you are a fool,” she retorted, taken slightly aback by his declaration. “What of others, the world around you, the people whose faces you spit on today?”

“They are irrelevant,” he dismissively stated as he turned towards the window, open only to a dark alley and buildings built of brittle brick, cloaked by the cover of night and rain.

“They are part of the world, John. You ignore them,” she hurriedly said, standing and putting on her underwear. “You ignore them because you can’t see yourself as you are. You can’t see them because you deny the world. You can’t see yourself in their eyes.”

Over the last week, I’ve taken the time to explore the concept of “Reasonable.” For a very long time, I took this concept for granted. Of course, everyone knows what “reasonable” means, I would say to myself; they simply aren’t acting reasonably; ‘they’ simply aren’t acting reasonably. I often thought the concept was as simple as this: reason is thought that is in accord with the laws of logic; to be reasonable is to be logical, to think with respect to the laws of logic. Of course, even if I were thinking with respect to the laws of logic, all the time (an absurdity itself), if no one else were acting that way or thinking that way, would it still be ‘reasonable’?

This is one of the crucial issues with the concept of reasonability or reasonable as I currently see it. It is a social construct. But of course, what does that even mean? Does it mean that there’s no such thing as something that’s reasonable without a society to define that concept? Perhaps. But this leaves an open question: what has defined that society and is it only when we act with respect to those limitations that we truly act reasonably, independent of our social conception of reason as a category?

But what kind of category is “reasonable”? It is a social category, yes, but who amongst us ultimately defines it, how do they define it, do we all have a say in its definition, and which form of it? Is it an objective definition, and if so, what defines it as objective and how do we know it speaks to that which is objective? How can a category be both socially emergent and objective?

All of these questions, over the past week, I’ve taken the time to explore and consider, all with respect to the law. None of these questions are simply answered, and I highly doubt the answers I reached are complete in themselves. How could they be; all of them are answerable only by degrees of correctness; the closer we get to it in its essence, the better we are at grasping the world around us, and by more easily grasping the world around us – I suggest – the more we become enveloped by that which we have grasped, leaving behind that which granted us the predictive insight in the first place. Regardless, the law does not provide a simple answer to this question, i.e., “what is reasonable,” but as I read, the more I felt that it should not, nor do I think anyone can actually claim to be wholly rational or reasonable onto themselves.

It is these kinds of questions that I hope to explore this week. Firstly, I will begin by exploring what Natural Laws and Rights are. Secondly, I will explore what we mean when we say that the concept of “Reasonable” is objective. Lastly, I will explore one of the solutions proposed to the problems posed by the seemingly subjective nature of “the reasonability” standard. In conclusion, I will discuss the main findings from the literature review, explore the implications of some of the top-down/bottom-up solutions to the “reasonability standard” posed, and lastly, I will discuss what this suggests philosophically and ethically, especially about power.

For the Limitations of Man, there Goes God

If “Reason,” and its variations, is a social construct, then this question must be answered: how is a society defined? Societies, and civilizations, are defined – at least – by a set of laws. But where do these laws come from? For those who study natural law and rights, the answer to this question comes from our understanding of the world as it is.

Rand E. Barnett in his 1996 paper explains the fundamental difference between Natural Laws and Rights. Natural Laws emerge from the recognition of the principles that define the natural world around us, e.g., gravity. These principles, given their existence, inform how we should engage in engineering, architectural, and agricultural endeavors, at least.  If we do not acknowledge principles such as the nitrogen cycle, gravity, or the laws of thermodynamics, and more importantly, if we do not accept these as givens and act with them in mind given our particular aims, we will fail to net the results we seek to achieve. E.g., “given that gravity will cause us to fall rapidly, if we want to live and be happy, then we had better not jump off tall buildings” (Barnett, 1996).

Just as an engineer, architect, or agriculturalist is defined by these natural laws or principles, so too must societies. I.e., a society will be as constrained by the nature of the world and her people as any engineering endeavor. Necessarily, we should ask from where these natural principles emanate, and as all laws require a lawgiver, it is generally assumed that these natural principles, which define the world, Man, the engineer, agriculturalist, architect, and political scientist (at least), are the product of a God-head. Thus, it is for this very reason the Constitution refers to a Creator. To achieve our aims, whatever those aims may be, the U.S. Constitution refers to Life, Liberty, and the pursuit of Happiness, for example, we must acknowledge and act in accordance with the principles provided to us by this Creator. These principles, of course, are assumed to be the appropriate aims of our society.

The distinguishing feature of a Natural Law system is that it is predicated on certain givens. The conditional ifs are supported by this given and they lead to a necessary condition. As Barnett puts it, “Given that the nature of human beings and the world in which they live in is X, if we want to achieve Y, then we ought to do Z.” This, of course, assumes there is a Human Nature, or natural human limitations to which we can appeal.

Barnett offers several responses to a couple of critiques to this position. First, “unless one posits that this process of social construction can be willfully manipulated or altered, then the fact that human nature is a product of social processes, as opposed to innate natural qualities, is… immaterial” (ibid, 661). As long as Man may not alter Himself in any manner, then there are limitations restricting his personhood either from without or within. I.e., the very limitations of Man reflect the fact he has a nature.

Secondly, Barnett writes that “some who speak of social construction in this context are objecting to basing claims simply on an alleged natural tendency of a person to act in certain ways” (ibid, 662). I.e., human nature is equal parts social construct and natural limitations. Barnett argues that this is based on a misunderstanding of Natural Law. Essentially, those who deny Natural Law on these grounds argue that the capricious inclinations of humans suggest Man does not have a nature. “Though classical natural reasoning is not based on natural instincts of people, to the extent such instincts exist and cannot be changed, whether or not such instincts are the product of social construction, they may very well influence what human laws can and cannot accomplish” (italics added, ibid 663). I.e., just because we want to survive does not mean that people may not act in ways that are antithetical to their survival for their tribe, nation, or country. Or, just because there are laws that can be imposed on man restricting his access to certain goods for his own and society’s sake does not mean those laws will naturally and intuitively be followed; he must be disciplined into obeying such laws if they are to be proscribed any action or deed. “Any legal system,” Barnett explains, “that ignored these likely human reactions to certain laws will reap unfortunate consequences” (ibid).

Yet ‘instincts’ alone do not define Human Nature. Humans also have physical needs, they have physical abilities, and are affected by the physical properties of the world around them. Even if this requires generalizations, all theories of human behavior are constructs from particulars; that is, given they are constructs, we are not fated to abide by them or for them to exist in all times and all places. However, any system of Natural Law would be at a loss if it did not take these kinds of considerations into mind.

Essentially, Natural Law reasoning enables us to act ‘wisely’ or ‘prudentially.’ Yet because these kinds of principles are not fixed, we are capable of breaking them, but we must pay if we do. Again, for a natural law system to work, it must take this form: “Given some features about humans and the world they live in, if their goals are such-and-such, then they must act in a particular way.”

Natural Rights are rather different from Natural Law Theory. Natural Rights do not describe the limitations of a Man and his room for actions in a particular society, rather they “describe how others ought to act towards rights-holders” (ibid, 668). Citing natural-rights theorist Dudley Digges, Barnette says ‘Right and Law differ as much as Liberty and Bonds: Jus, or right not laying any obligation, but signifying, we may equally choose to [do] or not to [do] without fault, whereas Lex or law determines us either to a particular performance by way of command or a particular abstinence by way of prohibition” (ibid). In other words, “a natural-rights analysis uses a natural law given-if-then methodology to identify the liberty or space within which persons ought to be free to make their own choices.”

Here, several questions emerge: why that goal, i.e., Liberty? Can a society not maintain itself and remain stable if it doesn’t have the goal of Liberty while still maintaining a Natural Law system? Barnette does not suggest this is impossible, only that if this were to be the case, a convincing argument would have to be made as to why goals should be reprioritized. But this opens up another question: what if the person you’re appealing to ignores your argument? For now, I think it would be wise to leave these kinds of questions unanswered.

Barnett continues by highlighting that there is a dual nature to natural rights; specifically, there are background rights and legal rights. The former are “those claims a person has to legal enforcement that are justified, on balance, by the full constellation of relevant reasons, whether or not they are actually recognized and enforced by a legal system” (Barnette, 670). This opens up an immediate question: what counts as a relevant reason; and secondly, what counts as reasonable? Here we begin to see the conundrum that Natural Rights face. The latter, Barnette writes, “are those claims that some actual legal system will recognize as valid” (ibid).

The question is ultimately whether we are obligated to respect background rights if we recognize that liberty is something to be preserved. Barnette puts the argument this way: “In what sense are natural rights… obligatory requirements of justice as opposed to mere prudential guides to conduct?” (ibid, 672). Effectively, the answer to this question is that, unless one is moral, one will not care about a categorical imperative or obligation. But what is even meant by “moral” here? Citing Phillipa Foot (1972), Barnette seems to suggest these are limited to categories like suffering and injustice, but what exactly is meant by the latter, and why only the former? Referring, once again, to Haidt’s work: these categories seem unnecessarily limited and there are demonstrably other considerations besides those that are defined by care/harm and liberty/oppression foundations. Thus, the statement should be: “if one cares about a specific kind of morality, then one will care about its categorical imperatives.” Why should one?

Effectively, we will recognize the obligations we consider or feel to be just, or even have been convinced are just, but we will disregard those that we do not feel are just and, thus, we will feel as if we have no obligation to them. Barnette tries to bifurcate these two by stating, citing Locke, “’the rulers can perhaps by force and with the aid of arms compel the multitude to obedience, but put them under an obligation they cannot” (ibid, 674). Of course, this requires us to ask the following: why is it that a group may acknowledge one ruler’s right to rule but not another; what has put the former in his position, and what allegedly prohibits the latter from keeping his? I think it is clear: the will of the people, i.e., the will of the people which will punish (compel) others to follow their will and their sovereign’s decree, which they call a mere obligation. I.e., the difference is not only a matter of taste, it’s also a matter of collective force and will, or the ability of a sovereign to coordinate the will of his people, whoever they are. I.e., the difference between being obliged and having an obligation is not much more than the difference between whether you are regarded as a social pariah or an upstanding member of that same society. The latter will have an obligation, the former will be obliged.

Barnette, and this is key, also suggests that having an obligation means that you regard that obligation as reasonable, while being obliged means that regard that obligation as unreasonable. I.e., the obligations, the rules, are ‘necessary to the maintenance of social life or some highly prized feature of it’ (ibid, 675). To be clear: a moral law is such if it maintains the social life of those who are obligated to abide by it, and is widely recognized by those same people that it maintains their social life. This leads to a rather peculiar inference, from this perspective, background rights are to be upheld if the society wills them to be upheld because they maintain their society and they are background rights if the members of a society regard them as being necessary to the maintenance of their society. Formally this looks as such: If SW->BR, BR -> SW; SW<->BR. Whatever a society says are background rights necessary to the maintenance of their society are background rights necessary to the maintenance of their society because members of that society have said so. Once again: this means a society is predicated upon the will and force of its people; i.e., the power of the people, or – more likely – the people in power.

Thus, with a society established based on the power, will, and the force of a people, their reasoning appears as genuinely nothing more than a post hoc justification for their use of power. A Natural Law system, any society with a legal system at this point, justifies its rulings on the basis that they are not arbitrary; i.e., within the system constrained on the peripheries by the use of power, force, and will, the system operates in an allegedly non-arbitrary manner by claiming that its procedures of law are sound, i.e., reasonable (Barnette, 678). Of course, this leads us to the crux of this paper’s question: what is reasonable? Are the laws reasonable for the people of the United States? Maybe. What of the people of China, Brazil, North Korea, Italy, Russia, Iceland, Uganda, Nairobi, Botswana, etc.? Whose ‘reasonable’ is it anyway?

For review, the following paper by Barnette has led to these conclusions:

God and His creation define the limitations of Man. I.e., Man has a nature. Men are capable of forming societies limited by this Nature, specifically through their limited powers. If Men ignore this nature, they must pay for doing so, and if their society wishes to maintain itself, then it will do what it believes is reasonably relevant for its survival and maintenance. The standards of a society, according to Barnette, are reasonable if they are sound. I.e., they ensure stability. In other words, that which stabilizes a society maintains a society if it is relevant to that society’s maintenance. But how does a society recognize whether a law or obligation, or the actions of its people, will maintain the society to which they belong or achieve the conditional goals of that society, which promote its maintenance? And when is a law or obligation relevant? To these questions, we turn toward the concept of objectivity.

The Need to Touch Grass

First and foremost, we must answer the following before we turn to the ‘how’: what is a law or obligation that’s relevant? Embedded within this question is a ‘how,’ but the processes by which one may arrive at this question are quite distinct from the ‘how’ question we will be addressing later. This question primarily requires us to understand whether one is reasonable. Before answering the ontological question defining this paper, let us first take for granted that something like ‘a reasonable’ man exists.

The adverb ‘reasonable,’ according to Neil McCormick (1998), is a context-sensitive term. I.e., the term will be a “concrete one in a concrete context” (ibid, 1577). When this category is taken out of its context, citing Julius Stone, McCormick states that it is a ‘legal category of indeterminate reference.’ For example, in criminal law, the defendant must be found guilty ‘beyond a reasonable doubt.’ In tort law, the actions of the plaintiff and defendant are considered vis-à-vis the ‘reasonable man’ or whether the same action would have been ‘foreseeable by a reasonable person.’ In contract law, ‘restraints that go beyond what is reasonable’ are unconscionable or unenforceable. And at least, if a contract is to be broken, only those damages which are ‘reasonably foreseeable’ may be awarded. (ibid, 1578-9).

In this sense, ‘reasonable’ relates to what is that which is ‘practical reasonableness.’ I.e., it’s the mean between excesses, foreseeable risks are accounted for, evidence relevant to the consideration has been considered, different viewpoints have been accounted for, and where two competing value interests intersect, each party’s value interest is considered ‘seriously’ and “whatever are the weightier are the overriding values” (ibid, 1579). Of course, this begs a question, was the process by which the evidence and competing interests weighed ‘reasonably’ and how would we know? This also begs another question: what makes a consideration serious, i.e., was the consideration serious or not? And one more: if reasonableness must be practical reasonableness, which doesn’t answer our ontological question, if something is deemed to be practically reasonable, is it thus reasonable? Or is practical reasonableness only necessary for something to be considered reasonable but insufficient for it to in fact be reasonable? McCormick unfortunately doesn’t answer these kinds of questions for us, but perhaps that’s the point.

Regardless, continuing on, McCormick defines the reasonable person as someone who “weigh[s] impartially their… interests and commitments in comparison with those of others.” They are also “aware that there are different ways in which things, activities, and relationships can have value to people” and weigh those that they are capable of weighing. They are also “not so consumed with passion for their own interest or project… as to be unable to stand back momentarily and see the situation from other persons’ points of view.” This means they “recognize a greater interest or deeper value of another [and] can properly take priority over the interest they pursue and the values they seek.” In the Smithian view, McCormick notes, they have the virtue of “self-command” and make use of “self-restraint when others have a legitimate [?] priority over them” (ibid, 1580). This kind of ‘reasonable person,’ McCormick notes, “are few to be found.” I.e., he very aptly states that “most are reasonable some of the time and some are reasonable most of the time.” I.e., none of us are reasonable all the time.

McCormick notes that “The ideal deliberator is the ‘reasonable person,’ and actual human agents achieve reasonableness to the extent that their decisions or actions or conclusions match those that would result from ideal deliberation” (ibid, 1581). What exactly is the ‘ideal deliberation’ though; and who determines if it’s ideal? This is not lost on McCormick, he states: “There can here be a real difference of judgment about what is right and what ought accordingly is to be done.” However, he does not consider this a matter of taste, or rather no “mere matter of taste.” While it is no ‘mere’ matter of taste, it is something like a matter of taste. The difference that he highlights is as follows: “a decision” like the one we are speaking of “must be made according to one or the other view… in differences of taste” and here’s the distinction, “it is sufficient for different persons each to go his own way” (ibid, 1581). In the cases requiring a reasonable standard, no placid resolution is achievable. One side must win and the other must lose, and it is of great concern as to which should actually have the upper hand. These kinds of cases McCormick calls ‘hard cases’ or hard problems.

When a judge appeals to the adjective “reasonable,” he is making a statement about a standard of behavior that is, as addressed before, contingent on context. This standard may be a product of a legislative body or agency, but the problem with this issue is that, in any case, what is ‘reasonable,’ as McCormick puts it (ibid, 1584), is a question of fact. Businesses, lay people, or other members of a society may seek to obtain a reasonable standard, but the issue is that questions of who is right are “legal questions that involve [the] appraisal of the overall balance in a constellation of principles as one interprets a legal problem involving the contested application of rules to facts.” I.e., one may have felt that they acted reasonably in one sense, but with respect to another sense of the word may have been less than reasonable, and it is the competition between these senses of reasonable that, in a society that values the concept of reasonability, afford one a win or loss. Citing Ronald Dworkin’s work, Taking Rights Seriously, McCormick writes, “we face a standing possibility of conflicts of interests or of values; the case of negligence in tort law is a case in point” (ibid, 1584). It is the weighing of these values and interests that determines if a case is reasonable or not, but just how is this weighing of values reasonable?

This gets to the heart of the matter: the weighing of values and interests is reasonable if it considers what is relevant, and disregards that which is irrelevant. Relevant factors are relevant to a given topic. I.e., to put it in a less roundabout manner, if there is a dispute within a given context, there will be standards, values, interests, perspectives, and facts relevant to that context. Any standards, values, interests, etc. that are irrelevant have no bearing on the given context. Of course, who determines the extent to which something is and is not relevant and how?

Interestingly, as McCormick puts it, “’reasonableness’ is not itself a first order value, but a higher-order value which we exemplify in considering a balance of first-order, or anyway lower-order values, and coming to conclusion about their application” (ibid, 1593). Given that for one to be reasonable, they must be capable of balancing the interests, values, and “the like that are relevant to the given focus of attention,” in a manner that does not necessarily bias any one interest, value, or relevant focus over another without respect to the facts and context of the matter, then one who necessarily emphasizes any one interest, value, or relevant focus of another cannot be considered reasonable; i.e., a selfish person cannot be reasonable, res ipsa loquitur.

McCormick argues that the facts pertinent to any dispute define the context of that dispute, defining the relevant from the irrelevant, so that one party over another may be considered reasonable. McCormick puts it this way: “We must know in any case what was done and what was not done, and for what reasons, and what might otherwise have been done or omitted, and what is normal practice, in such matters, before we can judge the reasonableness of the actings and omissions in view” (ibid, 1595). These acts are, if the metaphor is fitting, citing John Wisdom “like the legs of a chair, not the links of a chain.” I.e., the facts establish and support the context, serve as the foundation of the context, and are, thus, also relevant to the context (ibid, 1596). Standards of behavior are just one variable to consider when establishing the facts of a case, specifically the facts of whether some act may be considered reasonable.

Ultimately, as McCormick puts it, “it is up to one party to show a failure of reasonableness and identify the alleged lack of reasonable care; but then the other party counters this by showing the difficulty or impracticality or excessive costliness in terms of relevant values of that which it is alleged he should have done” (ibid, pp. 1599-600). This is obviously the Learned Hand Formula, but more importantly, this kind of weighing is precisely how, given all the facts of a matter, relevant variables are considered.

Thus, to answer our question, laws or obligations that are relevant work off givens that are factual and that define the context sufficiently and necessarily. The question that we have not answered in this exploration is ‘how’ facts are regarded as reasonable. I.e., how does a society recognize whether a law or obligation, or the actions of its people, will maintain the society to which they belong or achieve the conditional goals of that society, which promote its maintenance? It is this question that relates to our initial tautology. I.e., it seems to be the case that facts are relevant if a society is convinced and wills that they are relevant.

The Egregore of Reason

To make my point, I would like to turn to a rather lengthy paper, which I shall try to encapsulate into its essential points, by Heidi Li Feldman (1994). Feldman’s paper primarily wrestles with the concept of Objectivity. Whether a concept is objective is highly controversial. For example, what exactly is meant by objective? Generally speaking, as Feldman recognizes, “objectivity is a matter of correspondence to the world as it ‘really’ is, independent of our practices, goals, values, and beliefs” (italics added, ibid, 1188). But what ‘really’ is? Generally speaking, this construction of objectivity is not the one applied by the legal system. Quoting Feldman, “legal judgments do not aspire to correspond to a human-independent world, free from our practices, goals, values, and beliefs” (ibid, 1189). If we were to accept the previous understanding of Objective, the law wouldn’t be considered objective. But the law is dealing with facts, and so you might say, are these facts not objective? Ah, but there’s the rub: the facts are relevant to a context and thus are contingent upon the practices, goals, values, and beliefs (other sets of facts) that define that context.

Then what kind of objectivity is the law dealing with? Feldman proposes an answer to this question: we are dealing with concepts that “seem to blend description and evaluation.” Descriptive content refers to concepts such as proton, neutron, gravity, electronegativity, etc. Evaluative content refers to concepts like red, funny, juicy, and bright, etc. There are also subsets of evaluative concepts, which are normative concepts such as ought, should, must, etc.

Blend Concepts, according to Feldman, apply only under certain factual circumstances and, at the same time, they evaluate those circumstances; especially when they tend to guide our actions, beliefs, and feelings” (ibid, 1195). Blend concepts are also members of evaluative taxonomies. “Evaluative taxonomies categorize the world for us, just as scientific taxonomies do, but they afford us evaluative, rather than explanatory, power”; “[t]hey enable us to make distinctions of worth rather than distinctions of causal role” (ibid, 1195). The very fact that we have the capacity to make distinctions and to see the world in an intelligible manner “entrenches – and sometimes generates – particular needs and interests” (ibid, 1195). Feldman also states that “the facts that guide the application of the concept will have to do with things like conventional mores, shared cultural ideas, community values, and customs.” However, this fails to answer what – thankfully – the Natural Law theorists have identified; the foundation upon which conventional mores, cultural ideas, community values, and customs rest is a real one, in the sense that if you were to ignore the real as a substrate, you must pay for doing so. I.e., the social is a table whose legs are the natural.

Feldman does tacitly admit this, however: “Correctly applying a blend concept requires sensitivity to the evaluative taxonomy to which the concept belongs and to the evaluative point the taxonomy has by virtue of the way it responds to these needs and interests” (ibid, 1196). Recalling the Natural Law and Natural Rights discussion, the needs and interests of a people, while potentially capricious, are limited by their nature; i.e., a man may not hold relevant that which, by his sensate abilities, he is incapable of making intelligible or valuing; he cannot wish to drink sulfuric acid if he wishes to live, nor will doing so be very pleasurable for him.

Blend Concepts also have an extremely unique ability. In choosing or refusing to extend a blend concept’s applicability in [situations where] facts alone do not clearly settle the matter, not only does one consult the evaluative point(s) of the concept, one also makes a judgment about what shape the social world should take” (ibid, 1198). These evaluative points relate to negligence, “allocation of blame, deterrence of unacceptable risktaking [sic], and vindication of popular­-moral intuitions about corrective justice and unacceptably dangerous behavior.” This opens a few questions: who determines whether an action is unacceptable, and why only popular-moral intuitions? Perhaps enforcing an unpopular-moral standard on a population would qualify as coercion. But with respect to who is a standard unpopular? Is it unpopular in one context yet popular in another? Is it unpopular because it is a duty the people feel is burdensome, yet one they also recognize is essential for the maintenance of their society? These same kinds of questions seem to hold for unacceptable behavior. Perhaps our answer is in the unique ability of blend concepts if they are used properly: their ability to shape the world by providing us with reasons to act.

“The application of a blend concept influences the way things will go because blend concepts often affect behavior, sentiment, or both.” The key word in that sentence is influence. I.e., blend concepts, when used properly, are powerful tools capable of shaping how people behave; and more importantly, they are powerful because the people recognize the conclusions that follow from them or are convinced of their power; our tautology appears once more. Feldman goes on: “We consult blend concepts when we are seeking reasons about what to do, think, value, or believe.” And as Feldman notes, “It is, however, a further question whether the reasons blend concepts provide are good, bad, conclusive, superficial, or powerful” (ibid, 1199). These evaluative elements seem to be contingent upon a group of people recognizing that they are good, bad, conclusive, superficial, or powerful, especially relative to the behaviors they deem necessary to the maintenance of their society.

Feldman also notes that when we apply blend concepts, because they may be both socially and personally constructed, they have the ability to take on a life of their own (ibid, 1200). “[W]hile the concept remains responsive to the initial underlying needs and interests, distinctive fact patterns call for its application, perhaps reshaping the body of needs and interests, or our understanding of those needs, to which the concept responds” (italics added, ibid, 1200).

Feldman suggests further that blend concepts are neither purely world-guided or interventionist. I.e., It is not just “suitable to take into account a concept’s reason-givingness when deciding whether and how to use it” (ibid, 1202). Nor should one simply acknowledge that they are “world-guided, and [that] their world-guidedness has a normative quality to it” (ibid, 1203). Instead, it is necessary for us to acknowledge and act in accordance with both. I.e., we should apply blend concepts, like negligence or rude, in situations where the application of such terms will yield what we want, but we should also recognize that they are governed by facts that are completely irrelevant to the interests of the individual wielding them. They have a life and spirit of their own, and you are only capable of playing them ever so softly without feeling their force yourself.

This is why the facts that affect blend concepts, and the contexts wherein blend concepts are best applied, are social facts and contexts. I.e., facts and contexts “constituted by social practices, conventional mores, shared cultural ideas, community values, and customs” (ibid, 1205). This means that “one must understand [in what regard] the concept is reason-giving… [i.e.,] one must understand its role in the overall responsiveness to some set of human needs and interests displayed by the taxonomy of worth to which the blend concept belongs” (ibid, 1206). Understanding these human needs and interests, which are culturally and naturally contingent, “takes a great deal of… information and insight, including some that one could not acquire without a fairly significant immersion in the relevant culture.” I.e., Feldman genuinely suggests that some aspects of a people’s culture are actually not easily communicated; i.e., some of the fundamental social interests and values of people may be incommunicable. An important inference that must be made is that the values and interests of a people, especially with respect to maintaining their society, are not just socially limited, but that society, being limited by its nature, the environment around it, its knowledge, and capacity for knowledge, etc., all influence the values and interests of that society.

Now we can start to see the key point: whether someone has acted in a reasonable manner may be objectively determined as long as the facts are construed in a way that is relevant to a people in a particular context. That context is limited by the environment, the abilities of the people in the society, and the culture of the people of that society. I.e., the facts are only as construable as a given people are capable of construing them, being convince by them, or capable of understanding their reasoning. What is ‘reasonable’ for one person may not be ‘reasonable’ for another and, in some sense, a particular construction of ‘reasonable’ may be wholly incommunicable to either another person or a whole group of people. Given the ‘relevant reasons’ of a society serve to justify the maintenance of any given society, if that society is incapable of communicating the relevant reasons to a group of people as to why it should maintain itself within its scope of control, with respect to some pre-stated goals, that society will be incapable of maintaining itself. In effect, if the people are either unconvinced or incapable of being convinced of the relevant reasons why a society should be maintained, it will not be maintained.

These concepts may be considered objective, and thus valid, if a community regards them as objective and valid. This shouldn’t be too great of a pill to swallow. Take for example the individualist scientific-methodological conception and socialist scientific-methodological conception of objectivity. According to the former, “a scientific judgment is objective when it is the product of a method that publicly tests interpersonally comprehensible hypotheses against observational experimental data” (ibid, 1215). The latter suggests that, “for a scientific judgment to be objective, the judgment, its background theoretical assertions, hypotheses, and assumptions, and the interpretation of its supporting data must all be proffered for and receive public scrutiny and criticism from diverse quarters” (ibid, 1215). The latter requires a group to regard a conclusion as objective, while an individualist may conclude a finding’s objectivity on his own. Regardless, in both conceptions, the public – i.e., the society – has a role to play in defining whether a conclusion is objective. However, the scientist’s job is quite different from that of the judge, lawyer, or jurist; the former is responsible for making predictions about the world around them, while the latter make their decisions with an eye towards maintaining the society to which they belong.

Judges, jurists, lawyers, etc., may be considered moral-rationalists. A “moral-rationalist[‘s] conceptions of objectivity, a moral or political judgment, is objective when a specified group of people… largely agrees upon it or would largely agree upon it” (ibid, 1217). These “agreed-upon moral and political judgments exert interpersonal validity [i.e., are objective] because agreement signals that they are acceptable to the individual members of the specified group. Again, the goal of the judges, jurists, lawyers, etc. is to serve “the end of coordinating action in mutually acceptable fashion[s], without resort to force and violence” (ibid, 1217). I.e., “judgment is objective if and only if it is reached through the process of argumentation” (ibid, 1218).

I would like to take a moment to discuss the concepts of reasonable and unreasonable, as well as good and bad, while this concept is fresh. A society regards an individual’s actions as reasonable if they can agree through some sort of argumentation or dialogue that their actions are reasonable. The same is true with regard to whether an action is good or bad, or even evil. But we must consider one other factor, which may have simply been beyond the scope of Feldman’s work. I.e., that the ability of a people to argue or discuss, or finally agree on whether an action is reasonable, unreasonable, good, bad, or evil, is contingent on their nature. I.e., given certain universal qualities of Man, relative to the facts of a situation and the context that emerges from those facts, certain acts may be considered evil or wrong for humans, irrespective of who those humans are, where they are, and the culture to which they belong, specifically because they burden themselves or the society to which they belong with costs that threaten the stability and maintenance of their society; not because they violate a social contract, but because they deny their own limitations and the principles that define the world around them and themselves.

Feldman suggests that a blend concept can only achieve interpersonal validity, i.e., if a “blend concept is to exert reason-givingness interpersonally,” it must “live up to its social nature.” I.e., it must be “world-guided by the appropriate social facts, it should reflect the intersubjective evaluations of merit implicit in the taxonomy of worth to which the blend concept belongs,” which itself is confined to a particular social context, in a particular society, “and it should, as purported, respond to communally endorsed needs and interests” (ibid, 1223 – 4). Firstly, no single individual is likely to be capable of this, i.e., “sensitive to all the relevant conventional mores, cultural ideas, community values, and customs [as well as limitations] that world-guide [or naturally limit] a particular blend concept” (ibid, 1224). Secondly, the application of a blend concept may be limited to one’s personal understanding of the concept with respect to the context within which it resides, the value assigned to it, and the needs and interests it is purported to reflect. The dialogical process “stands a better chance of achieving” the goals of the moral-rationalists, according to Feldman, because it is capable of unraveling the social nature of a blend concept so that it may be put to more effective use.

For a moment, once more, I’d like to discuss one of the suppositions of Feldman’s article, although it is not stated absolutely, which is that the goal of the moral-rationalists is the “coordination of action in mutually acceptable ways, without resort to force or violence” (ibid, 1226). Here I think is a major flaw. What counts, for example, as force? Is it simply physical coercion, or can it be psychological coercion and manipulation? And what of violence? Is an action done merely without the use of violence or force, and if it is mutually acceptable in a given context, reasonable if it violates the limitations and principles of nature, and God? Let’s again reflect on the essential natural law argument: Given certain limitations, and the goals of Mankind, if they wish to achieve those goals, mainly the maintenance of their society, then they will act in a way that maintains their society, i.e., keeps it stable. If a society is unstable, if it is not being maintained, then that is because the defining goals of that society are not being regarded, or the limitations of Man imposed on him by Nature and God are being disregarded.

Thus, even if a society is not violent or doesn’t use force to coordinate, if that coordination is not stabilizing or maintaining the society, i.e., if the society is degrading despite coordination between its members, then it is probably because they have fundamentally altered the goals upon which the society was first established, such that it is no longer capable of functioning as it was intended, or they have disregarded their natural and God defined limitations. I would then say that objectivity is not merely goal-contingent but also contingent upon whether the society can maintain itself and stay stable. If it can do neither one or the other, and doesn’t coordinate its actions through the use of force or violence, then we cannot say that it is an objectively stable society or capable of maintaining itself. I.e., limited violence and the use of force, at least, may be necessary to coordinate the members of a society effectively, but neither is likely to be sufficient to maintain a society or keep it stable. Sometimes you have to crack a few heads.

Feldman also makes note of a point I have reiterated numerous times now: “A prerequisite to objectivity in blend judgment is that there be some shared goals, values, and interests.” This really does reflect, in Feldman’s own words now, that the goals of a society, whether they be Justice, Liberty, Life, Happiness, Dominance, etc., are the givens that define whether a society regards an interpretation of a blend concept as objective, i.e., it has a social nature, is world-guided by the appropriate social facts and natural limitations of a specific people, reflects the intersubjective evaluations of merit, or worth, i.e., relevance, implicit in the taxonomy of worth to which the blend concept belongs, which is defined by the aforementioned social facts and natural limitations, and it is capable of responding to communally endorsed needs and interests as purported. The latter is key: if a blend concept has no bearing on the goals of a people, and those goals reflect the needs and interests of those people, then it cannot be considered an objective or valid concept. Feldman notes that this means that “proponents of rival versions of these conceptions of objectivity disagree over what form constraints upon judgment should take” (ibid, 1227).

I would like to take the time to discuss this last point a little further. I previously noted that people can reasonably disagree over which values and interests are relevant, and thus even which facts should define a given context wherein a disagreement is taking place, and that these are recognized as ‘hard problems or cases,’ but they ultimately must have a resolution where one party wins and the other loses; i.e., a zero-sum game. Let us consider this with respect to blend concepts for a second. A blend concept reflects these differing goals, values, interests, what’s of worth, merit, and relevance in a given contextual hierarchy, and is defined by facts that are relevant to a specific party, and perhaps not another. When two competing blend concepts, specifically fundamental blend concepts (i.e., blend concepts that are essential to the maintenance of a specific society), intersect and there’s genuine disagreement – a hard problem – associated with these two competing concepts of how a society ought to be maintained (i.e., the blend concepts lead to completely different reasonings about how the world should look), these parties, by the very nature of the problem, cannot simply go their own way: you cannot simply want to grill and be left alone. One party wants to win and see its conception of the world maintained. The party that doesn’t want to fight or advocate for their point, even physically as we have already noted, for their worldview will lose this fight over how society should be structured and maintained fundamentally.

Feldman also seems to be aware of this. “Disparities in power,” she states, “comprise one major obstacle both to the responsiveness to genuinely shared goals, values, and interests and to the unfolding of a genuinely dialogical method.” Remember, argument and discussion are necessary for recognizing whether a blend concept’s use is valid, or objective. However, power is clearly a relevant factor in whose concept is considered valid. The “greater the disparity in power between parties to a blend judgment,” specifically about its validity and applicability, “the more likely the judgment responds to goals, values, and interests shared only by the relatively empowered, and the more likely that their contributions control the dialogue through which the parties reach their judgment” (italics added, ibid, 1229). In other words, not only can there be fundamental disagreements within a society about how that society should maintain itself, and how it should look, but the dialogical process may be completely skewed in one direction – not because that is the direction the majority wish to go in, but because they have been cajoled through power structures into accepting that it is the direction they must go in.

Let us now consider the question that defined this section of the paper: How does a society recognize whether a law or obligation, or the actions of its people, will maintain the society to which they belong or achieve the conditional goals of that society, which promote its maintenance? I answered this question with a tautology: a people will regard a concept as relevant to the maintenance of their society if they will or are convinced that it is relevant to the maintenance of their society; i.e., it is relevant to the maintenance of their society if it’s relevant to the maintenance of their society. While this may seem like a vast oversimplification of the process, this is descriptively what is occurring. Of course, one should ask the following: how is the society comprised?

Let us take for instance the issue of “Reasonable Person” in light of our review of blend concepts. Blend concepts, for them to be valid, must live up to a social nature; i.e., they must be world guided by the appropriate social and natural facts, reflect the intersubjective evaluations of merit, worth, or relevance implicit in the taxonomy of worth to which “Reasonable Person,” for instance, belongs, and they should respond to communally endorsed needs and interests as purported.

Firstly, there can be genuine disagreement about just what a “Reasonable Person” is, especially with respect to whether the “reasonable person” standard meets the needs and interests of a group of people. This disagreement is supposed to be resolved through dialogue, as well, but that is obviously not always going to be the case. Part of this disagreement can be resolved by establishing certain restraints or limitations, mediated by social and natural facts, on the concept of a “reasonable person.” But who establishes these restraints and limitations? Should they be established, for instance, by a judge, a jury, a legislature, or an agency? If they were established by the legislature or the legislature granted an agency the authority to define the limitations that are necessary for the “reasonable person” standard to be met, how can we be confident that their standards for establishing the standard were reasonable or valid themselves, i.e., reflect the social facts relevant to the people constrained by the standards created by the agency? What if it were a judge, specifically judges; could the “reasonable person” standard be an emergent heuristic, an egregor, designed to resolve situations that are not easily resolvable and thus require a dynamic category by which to judge specific cases? But how can this “reasonable person,” shifting from judge to judge, produce results that a society can consider fair, especially if judges have a kind of power – justified or not – that sets them apart from the people who are affected by their judgment? These questions, at least, are not easily answerable, but the reality is that, one way or another, some select group of powerful people will likely limit the degree to which a concept can be applied in the course of dialogue based on their experience or expertise. I.e., the process by which a blend concept is deemed valid is hierarchical by its nature.

Secondly, when determining how a law or obligation, i.e., the blend concept used to give reason to the law or obligation, is relevant or valid, it must be interpersonally available to the members of the group deciding whether it is valid. For instance, “reasonable person” or “reasonable” must be understood by the members of a group considering the concept as applying to a specific situation or context. If there are significant disparities in power between who is deciding this fact and the people affected by it, the people affected by it generally have to accept the will of those deciding it or must have been sufficiently convinced, by manipulative means or not, that they must accept it. I.e., the concept “reasonable,” as a defining feature of a law or obligation, is not merely determined by the will of all people, but by the will of a select number of people whose use of power has convinced others that their will is to be trusted, specifically through the power they've demonstrated.

This latter point doesn’t mean that there isn’t overlap between different layers of the hierarchy determining whether “reasonable,” in a given instance, is applied validly or not; there is, and Feldman makes note of this. She says “Rather than every participant in the methodology converging on each specific judgment of negligence,” or ‘reasonable’ for our purposes, “participants join in different convergences at different points in the methodology” (ibid, 1237). I.e., that different layers of the decision hierarchy agree on the validity of blend concept’s use implies the concept’s objectivity. However, as previously noted, just because a group of people regards a concept as being valid, especially because it reflects their interests and values, doesn’t mean that it will maintain or stabilize their society. I.e., overlapping hierarchical consensus, or convergence, on a blend concept’s validity, implying its objectivity, doesn’t guarantee that the coordination between the members of that society vis-à-vis the blend concept will ensure that society’s stability or maintenance.

Importantly, this overlapping hierarchical consensus also requires a division of labor, checks and balances, feedback mechanisms, and the capacity to regulate power differentials. Essentially, this process reflects the fact that, because blend concepts are relevant to the specific goals and interests of a society, that the institutions which make great use of them are something like a superorganism, especially because they have a division of labor attenuated towards the goals and interests of the society, even if those goals and interests are defined by the powerful (Holldobler and Wilson, 2009 [I also suggest more of their works beside this one to understand the superorganism concept]). Feldman also makes note of this: restricting behavior “according to role reinforces the division of labor built into” for example “legal methodology. This division of labor produces layers of constraint upon judgments of negligence and regulates the effects of power disparities among the participants, so its maintenance is vital” (Feldman, 1994, 1245). The constraints that enable effective convergence and adjudication respond to “real-world imperatives,” i.e., not just the needs and interests of a society but the needs and interests of that society relative to the environment they exist within and the limitations of that environment. “This system of interlocking constraints responds to the need to situate different participants differently within the methodology, thereby rendering different sorts of constraints appropriate for different actors.” And here we see that “reasonable” as it is to be applied, is context-dependent. What is reasonable for one person may literally be unreasonable for another because they are not dealing with the same social facts, natural facts, and are not limited socially or naturally as someone else may be. Because blend concepts are valid by way of dialogue, i.e., require communication between these different divisions of labor, they cannot be subjective; they have to be agreed upon terms. If they are not, or consensus cannot be reached about what one means by ‘reasonable’ in a given context, then in that context ‘reasonable’ is not an applicable blend concept.

This effectively makes the concept “reasonable” a political term, according to Feldman. “Specifying shared values, interests, and goals raises questions of which values, goals, and interests, if any, are shared: why certain ones are not; and how to bring any shared ones into being” (ibid, 1249) because they will define power and value hierarchies. And with regard to power, “Require regulation of power disparities raises questions about who is empowered relative to whom, and when relative empowerment distorts dialogue, interferes with interpersonal availability of reasons, or renders convergence suspect.” I.e., political matters are relevant to whether one thing may be considered reasonable vis-à-vis another. The very concept of reason is defined not by the facts and logic of an argument alone, but by those who wield the power to determine which facts and kinds of logic are relevant. Reason presupposes and is defined by power, first and foremost.

The Reasonable Man, thus, is an emergent phenomenon. He is a bottom-up phenomenon, not a top-down phenomenon.  Specifically, he emerges out of a given people who are defined by certain social and natural facts. He may find himself in various contexts, relative to how the people’s interests and values bear on that context. Ultimately, however, he is not reasonable because he is reasonable but because a people regard him as a reasonable vehicle for ensuring their needs and interests are met, and specifically that their society is maintained. This process is decided by the will of a people, who use their will to secure their interests; i.e., power, specifically the power of some people and not others, defines what is reasonable and is not, not the facts and logic of a position themselves. However, just because a people consider an act reasonable does not mean that it will maintain their society, only their conception of their society. If their concept of reasonable goes so far as to disregard their natural and God-given limitations, they will have to pay for doing so, which may mean that their society will be incapable of maintaining itself or ensuring its stability.

The Reasonable Machine and His Slaves

The concept of “Reasonable” has been fraught with controversy. From proponents of Critical Race Theory and Feminism, it has faced considerable criticism, specifically because it seems to interfere with their aim of equality. The ontological question, “What is Reasonableness?” is, of course, a primary one. Yet so is the problem of effect; i.e., in the words of Brandon L. Garrett, “Who or what is the object of the reasonableness standard – which citizens, government officials, or entities are being held to a standard of reasonableness?” (Garrett, 2017, 65). And thirdly, “When a constitutional right is concededly violated, should a remedy depend on a further determination of reasonableness in the eyes of federal judges, as opposed to reasonableness based on standards of care or validated facts proven to a jury?” (ibid, 65)? It is these kinds of questions that Garrett sets out to answer in his paper, which we will be reviewing.

Garrett supplies a resolution to some of the controversies caused by the “Reasonable Man” standard; specifically, he argues that “we can aspire to a regulatory vision of reasonable and informed regulation” (ibid, 68). I.e., top-down standards of reasonableness. I shall take the opposite view.

Garrett is not ignorant of the fact that the concept of reasonableness gets its efficacy and potency from its flexibility. He states (ibid, 70) “the flexibility of the concept of reasonable care may be a weakness,” in tort law, “but also its strength, giving courts the ability (in theory, at least) ‘to arrive at the correct judgment in a fact-dependent context,’ even if the concept is ‘frustratingly imprecise,’” citing James Gibson (2008). What counts as precise, doesn’t seem to be answered. Is it imprecise because it doesn’t reach the conclusion a party desires, or because it doesn’t reach the conclusion the majority would ascent to? Imprecision, or what counts as precise, is unanswered.

This flexibility enables conceptions and perspectives of reasonableness to take many forms, not simply to be applied in various jurisprudential contexts, such as tort cases, criminal cases, and contract law cases. “Standards of care,” he says, “may be adjusted to reflect different expectations for minors or the disabled… and not based on general utilitarian calculus” (Garrett, 2017, 71). This is one reason why reasonability is so highly criticized; because it is alleged not to “reflect diverse viewpoints, but rather those of reductionist, or majority, or male viewpoints; a non-emotional perspective; or a privileged judicial perspective” (ibid, 72; Cahn, 1992; Ehrenreich, 1990). In medical industries, standards of care may serve as the reasonable norm, effectively creating an anchor for what counts as reasonable care and what doesn’t, preventing or limiting a broader consideration of what should count as reasonable care. This kind of pattern is effectively a pattern that re-instantiates a stereotype, not in accordance with the facts, but as a self-affirming anchor. I.e., the standard as an anchor perpetuates the same harm that the standard should seek to avoid. As we will see further along, I do not think this can be resolved by agency standards of care or reasonability.

Part of the benefit, but also the weakness, of the reasonability standard stems from the fact that it enables judges and juries to decide if, for instance, a police officer’s actions were reasonable based specifically on the circumstances in question. However, it is just this kind of specificity that calls into question the standard practice of the reasonable person standard. As we have already discussed, this standard may be construed as objective, because it is based on interpersonal notions of what is reasonable and how one should have or did act based on the circumstances of a case, but it is not quite clear that it is a standard per se. Citing John Gardner, Garrett argues that “reasonableness standards can obscure legal reasons and that the reasonable person ‘exists to allow the law to pass the buck, to help itself pro tempore to standards of justification that are not themselves set by the law’ [Gardner, 2015]” (Garrett, 2017, 74).

However, if we examine this more closely, we may see that simply having a standard would be insufficient. Let us recall again that courts are dealing with hard problems, wherein competing interests meet and a winner between the two interests must be called. In this adversarial competition, both parties may present standards that, based on the facts at hand, support their case. If the judge is to use what are qualified as reasonable standards set by the legislature or some legislative agency, and he finds both parties meet the standards established by the legislature and her agencies, then by what standard should he adjudicate the winner? It is at this moment, I think, that the reasonable person or man should be applied. It is in these moments, based on the facts at hand and the context established by those facts, that a judge or jury can enter the perspective of the defendant and plaintiff to see who, even with regard to the reasonable standards set forth by the legislature and her agencies, who the most reasonable person or man was.

Part of the problem with this argument is that it requires the judge and jury to balance the interests of the parties involved, the interests of the state, and Constitutional interests at once, which may undermine their ability to provide justice (ibid, 76). Effectively, as Garrett puts it, “The concept of reasonableness can then stand in for a set of decisions regarding who is regulated by the constitutional right, and yet the term reasonableness does not itself say which perspective should matter” (ibid, 77). I think this last point, “the term reasonableness does not itself say which perspective should matter,” fails to consider the fact that reasonableness is deemed reasonable if it accords with the interests and values of a society, which are the goals of that society. It is the goals, interests, and values, at least, of any given society that determine which perspective should matter and whether that perspective is reasonable. Garrett goes on to say that “Calling it a reasonableness standard, however, does not answer the question to whom the standard applies.” Again, this question is answered by the society, specifically with respect to the goals, interests, and values of that society, all with regard to the maintenance and stabilization of that society.

Garett seems to understand this, although he argues that the reasonable standard has historically been used to “empower federal judges to deny relief on a broader range of legal, as well as factual, questions” for instance (ibid, 81). He specifically states, effectively highlighting the tautology initially identified, that to get the Constitution wrong is “to erroneously deny relief to someone convicted due to a constitutional violation,” which is to do so in a way “’that reasonable jurists would all agree is unreasonable’” (ibid, 82, citing Green v. French, 1998). For instance, what does it mean for a state court to be both incorrect and unreasonable? Is not an unreasonable position, for example, by its nature incorrect; is it not redundant to say that a position is incorrect and unreasonable? It is the use of standards, once again, that poses the problem. The standard may exist, but the standard may not accord with the interests of the jury and the judge, and as such, they may ignore the standard or review the standard with respect to all facts relevant to the establishment of the situation in question; meaning the standard is only one fact in a sea of many facts that constitute the context of the trial. And, as Garrett notes, even if a trial were to be reviewed on the basis that it had violated some reasonable standard, and the case was potentially in error, that error must be reviewed, on the basis of whether “the error reasonably affected the outcome of a trial (or, conversely, lacked a ‘substantial and injurious outcome at trial’)” (italics added, ibid, 84). Effectively, it is “reasonableness all the way down”; the element of the subjectively perspectival, even if that perspective is constituted by facts relevant to the interests, values, and goals of the society, is always there.

From the review of Garett’s critique of the reasonableness standard, it seems clear that it is in conflict with the need to apply the law equally. Take for example the inference he makes on Willowbrook v. Olech stating “the plaintiff may claim that he ‘has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment’” (ibid, 88). What exactly makes the basis rational or reasonable? Who determines this but the citizens of a State or the Nation as reflected through the actions of their legislature? Garett does not seem to recognize that the reasonable or rational basis is based on the fundamental interests, values, and goals of the people of a society. For example, he says “the dissenters in Obergefell did not argue that the appropriate standard of review should be a rational basis review, nor that the motives of the legislators did not matter… they contested whether a right to same-sex marriage was appropriately deeply rooted, or deserved recognition as a fundamental right, or whether the traditional understanding of marriage should govern” (ibid, 89). While this may, at first glance, appear to have no bearing on whether the decision was reasonable, to decide a case on the basis of a law that does not reflect the fundamental interests, values, or goals of a society means that the case wasn’t decided with respect to all relevant facts establishing the context of a case, and can, thus, be considered objectively unreasonable.

Garett calls the reasonableness standard ‘overworked’ but this is specifically because it is a heuristic designed to apply to various contexts, defined by various facts, which must be qualified as reasonable only if they are regarded as reflecting the values, interests, and goals of a society. That the judicial system engages in the dynamic behavior associated with the reasonableness standard is the result of its common law nature, which reflects and maintains the will of the people. His argument critiquing reasonable person individualism demonstrates this. He argues that, to the people who originally wrote and interpreted the constitution, their standard of the reasonable person was not ‘a generalized legal standard establishing an individual’s duty of care in a wide variety of circumstances,” but rather “as [establishing] the status-relationship of the disputants’” (ibid, 106). When the text is the standard for construction, this perspective is mostly ignored – it is impossible to garner the perspective of an original constitutionalist, reasonably interpreting the constitution, because we are removed from the facts, limitations, and contexts he resided in. “[A] reasonable person… may have understood the phrases in a document like the Constitution to express familiar concepts from pre-existing sources, like the English Bill of Rights, and not based on the commonplace meaning of the words and phrases in everyday vernacular.” Again, which facts were used to construe the Constitution in a reasonable manner? It is this constantly changing sea of relevant facts that enables the Constitution and law to be applied in a manner that reflects the will of the people, their interests, values, and goals. Any agency standard would not ameliorate this issue.

I would argue that the courts and judges, based on the fact that they are dealing with blend concepts, and that reasonableness is a blend concept related to the concept of negligence, for instance, which means they are hierarchically instantiated and determined, are the best vehicle for determining whether one party or another in an adversarial dispute is reasonable. Garett claims that the process by which this occurs only provides the “guise of objectivity” (ibid, 110). But it’s not clear what he means by ‘objectivity’ if he does not consider this process to be objective. According to whom is it objective? It certainly seems to be objective based on the standard established by Feldman (1994), which was extensively discussed. He claims that “if seemingly bright-line standards of care become eroded through inconsistencies, such as subjective exceptions, shift objects, or remedial rules, then the clarity supplied may only be superficial.” But these standards, the facts of a case, and even whose interests are considered, are not decided in a vacuum. They are decided through a hierarchy that can check out-of-order judges, or juries, and preserve the will of the people generally. I.e., unless we are discussing matters related to the Supreme Court, the distributed nature of power associated with a common law court system enables no one judge to assert their power over another without being checked by a judge in a higher position of power. I.e., if a plaintiff or defendant seeks a writ of certiorari, and has their case found to be imperfect based on the review of an appellate court, then justice has been preserved. It is the burden of those who claim justice wasn’t preserved if, upon writ of certiorari, the lower court’s ruling was found to be sound or complete. If the disagreement is simply that competing interests were not treated equally, then equality, as I have asserted, is clearly at odds with a reasonable analysis of a case.

Garett, as has been previously stated, argues for top-down standards of reasonability. He argues for “an administrative law regime where there is deference to an administrative agency… if they make policy decision within reasonable bounds” (Garett, 2017, 113). Effectively, the top-down, agency regulation creates limits that are ostensibly informed by the bottom-up process. The legislative body grants agencies the ability to gather information to make empirically-informed standards of reasonability. But this doesn’t avoid the problem Garett is trying to avoid. For instance, how do we know the empirically-informed information was gathered in a reasonable manner that reflects the will of the people?

Genuinely, Garett is advocating for a rule of the expert class, except these wouldn’t be legal experts, judges, and the like. No, He argues that “social science and empirical research should more generally inform constitutional rights or constitutional criminal procedure, including in more complex hybrid models, in which courts serve a role in overseeing experimentation by government actors” (ibid, 115). Effectively, the courts merely become an arm of the legislature, checked by the legislature, and their powers of judicial interpretation become limited by agencies of the legislature. In other words, the legislature puts itself in the position of the lawgiver and adjudicator. The judges would be limited by the opinions of experts whose judgment is correct because they are experts.

Really, the question is who reviews the standards used by the experts to research the judicial system’s decisions, judges’ decisions, and the standards established by those experts? Is it the Court? For example, how is it that the research of experts could enable judges to “take notice of studies examining [certain] question[s]… [that regulate] lawyers and [insist] that they litigate questions of real importance” (ibid, 118)? I.e., who determines whether the question is of real importance? The experts or the judges? How does this resolve the issue highlighted by Garett? Does it only mitigate the subjectivity of the judge or does it channel the judge’s decision-making apparatus into the framework the experts have decided is appropriate, independent of what a jury’s or judge’s experience tells them, or as other facts relevant to the case suggest? Effectively, even if the Court is allowed to conduct a further review of the facts of a case to ensure they abided by the standards established by the expert agency’s suggestions, are they conducting a further review to ensure that justice was upheld or the expert class’s will was upheld?

Garett suggests that “When courts use reasonableness standards to inform review of constitutional rights or to determine whether a remedy is appropriate, that review should be informed by objective and empirical sources, and not just whatever the reviewing judge calls reasonable” (ibid, 121). But it is not informed by “just whatever the reviewing judge calls reasonable.” And again, Garrett claims that the reviewing process should be informed by empirical sources. Which ones? The relevant ones. And who determines which sources are relevant? Should relevancy not be determined by the facts constituting the context of the case? If that is so, how do empirical facts not relevant to the constitution of a case’s context better inform the judge? And how can we be certain that those empirical facts are themselves sound? Who reviews the experts? Garett claims that these empirical facts could “inform the analysis… of jury behavior and assessment of trial evidence.” But who determines if this research is valid or relevant to the adjudication of a case? The judge? And if that is the case, how do we know a judge is even in the position of assessing the evidence provided to him by the administrative agency? Effectively, once again, this makes the judicial system merely an arm of an administrative body that is only beholden to the people if the legislature is capable of checking that agency's power. If it is incapable of checking its power, the people will not be represented or they will be represented in name only. The judges will become puppets of an unelected managerial or expert class.

Garrett's response to this kind of criticism: “judges already engage in broad deference, but are not informed by adequate information” (italics added, ibid, 122). Who determines what is adequate information? What is adequate information? What makes it adequate? Do experts and the managerial class decide this, as well? Effectively, are the experts claiming their research is both adequate in itself and thus adequate for a judge because they are experts? Who checks the experts; who filters the experts and their research to ensure it is reproducible?

In effect, Garret’s model hands the reigns of the judicial system and interpretation of the law based on grounds of reasonability over to legislative agencies who can act independently and have constructive authority not afforded to those who disagree with them (Chevron, 1984). I.e., Garret’s resolution to the issues posed by the dynamic nature of ‘reason’ is to take the judicial system's ability to reason away from it.

Lastly, I would like to discuss how this relates to the issue of power that has been rearing its face every so often throughout this paper. Specifically, this grants power to a group of unelected experts who decide whether an issue was reasonably adjudicated. Remember, it is a society’s relevant reasons that determine how it should maintain itself. If that society’s ability to determine what reasons are relevant for its maintenance is handed over to a class of unelected experts, it is those experts who put themselves in the position of shaping the society. Remember again that the category ‘reasonable’ is a blend concept, i.e., it has the power to shape the world around it and the behavior of people in a specific society by providing them reasons for how they should or shouldn’t behave. If this power is given solely to a group of unelected experts, the interests of the people may be totally overlooked or ignored. In effect, any member of that society becomes obligated to do the will of unchecked experts.

Conclusions and Discussion

“The measure of a man is what he does with power.”

― Plato

This paper has extensively studied the concept of ‘reason,’ ‘reasonable’ and ‘reasonability.’ To study it further, even more extensively, would probably require that I write a book. As I see it, one of the most important takeaways from this exploration is that a society is predicated not on evidence, facts, logic, or reason, but rather is founded upon the use of force, the will of a group of people, and the power they are able to exert over themselves and others. The facts, logic, and reasons are post hoc justifications for a group of people to effectively exert their new-found authority and power, justified or not.

These people are limited by their nature and the principles or laws that govern that nature, which in effect means they are limited by God, their Creator. Given these limitations, depending on the goals of a people, if the people wish to achieve those goals, interests, or desires, then they will act in some particular manner. If this society wishes to maintain itself, then it will do what it believes is reasonably relevant for its survival and maintenance. What is relevant is defined by the givens defining the context sufficiently and necessarily. I.e., it seems to be the case that facts are relevant to a society if a society is convinced that they are relevant. Even more, because of any man’s limitations, a man may not hold relevant that which, by his sensate abilities, he is incapable of making intelligible or valuing.

Given that a society is limited by the capacities of its people and the environment it finds itself in, the values and interests of a people are not just socially limited. Any society, being limited by its people’s nature and the environment they exist within, their knowledge, capacity for knowledge, and behavioral tendencies affect what that society regards as reasonably relevant for its maintenance. This means that what is reasonable for one person may not be reasonable for another, or for one society and another. In some sense, a particular construction of reasonable may be wholly incommunicable to either another person or a whole group. Given the ‘relevant reasons’ of a society serve to justify the maintenance of any given society, if that society is incapable of communicating the relevant reasons for its existence to a group of people, that society will be incapable of maintaining itself. I.e., if a group of people is either unconvinced or incapable of being convinced of the relevant reasons why a society should be maintained, it will not be maintained. Because some fundamental reasons for a society’s existence are incapable of being communicated between peoples, if the constitution of a society has changed such that its fundamental reasons for existing cannot be communicated to the population replacing the native population, that society will fundamentally cease to exist.

The concept of ‘reasonable’ is also regarded as a blend concept. These kinds of concepts are capable of changing the world around them and can be regarded as objective because they relate to concepts that are not dependent on the existence of any one individual. They are dependent on social facts, which are also dependent on the natural limitations of a society. Properly understanding them and how they’re supposed to be used can give reason for people to alter their behavior. The kinds of problems the concept ‘reasonable’ is used on are regarded as ‘hard problems,’ as well. These kinds of problems demand a solution. In these kinds of problems, there are two parties whose intersecting interests conflict with each other. One party’s interests have to win and another’s have to lose. I.e., one party wants to win and see its conception of the world maintained. Importantly, when these kinds of conflicts take place at a political level, one group’s interests must prevail over another. The side that is incapable of wielding blend concepts effectively, at least, will not be able to win. I.e., effectively capturing blend concepts partially ensures victory because it enables a specific group of powerful people to alter the behavior of a society’s members.

This kind of capture can be achieved by expert opinion. If the legislature can be convinced that they should assign an agency to regulate standards of, for example, “reasonability,” the courts may be required to adopt the agency’s position on what is reasonable. This effectively gives experts nearly unchecked power over the court’s ability to assess what is reasonable. They may decide to make suggestions to the courts that they consider particular pieces of evidence or facts that the experts regard as relevant, but does this mean that they are objectively relevant, in the sense Feldman has provided us? Who watches the watchers; who checks the experts; who even filters the experts for their expertise, other ostensible experts? By granting an agency’s ability to effectively capture blend concepts, they give these agencies the ability to shape a society and the reasons any individual may consider relevant to the maintenance of a society. Effectively, this means that the members of this society become subservient to the will of an expert class that provides them with what they’re supposed to think, how they’re supposed to think, and what they should do given the reasoning provided to them by the experts; they effectively become obligated to the will of the experts.

Throughout many of the critiques of reasonability, there has been an implicit and explicit question: whose concept of reasonable? Garrett argues that reasonability should be determined by standards established by an agency of experts. Others suggest that reasonability shouldn’t be used to determine whether a defendant’s or plaintiff’s actions were reasonable because it perpetuates White, European, Anglo-Saxon, and Male conceptions of reasonability, specifically the feminists and critical race theorists. Still, others argue that reasonability standards should reflect diverse opinions, which is why there should be reasonable standards for, for example, Italians (Australia), Women (America), or Indigenous people (Canada), examples of which can be found in Moran’s paper (2010), The Reasonable Person: A Conceptual Biography in Comparative Perspective. Given our aforementioned discussion, this is not a question of fairness or equality, as I see it; rather, it is a competition between two competing world-views or standards of behavior.

Essentially, a reasonable standard may be used to define how someone of a particular group would behave in a particular situation, wherein in the same situation, a person of another group may behave differently. Because these two individuals are of different groups, their behavior in the same situation will be viewed differently and they can be held to different standards. Yet it also seems incorrect to apply the reasonable standard equally. We cannot always hold a child to the same standard of negligence as we can an adult. However, should women only respond to the violence of a man if a threat is immanent? I.e., as was the case, examples of which can be found in Moran’s paper, can women kill men if they claim to have been in an abusive relationship with them because men are assumed to be more physically powerful than women? I.e., should women be held to a lower standard of manslaughter than a man because men are, on average, stronger than women? If they should, are we not then creating two different standards based on isolated cases of, in some sense, pathological behavior; for why would a woman who stays with an abusive man not be regarded as suffering from some pathology, which is not a factor that should be considered in cases of negligence, as Moran points out? What of Italians? Should the Italians be regarded as more passionate people and thus more likely to suffer from erratic emotional outbursts, as was argued in Australia (again, see the examples in Moran’s paper)? Does this not perpetuate a standard of behavior that may be at odds with the maintenance and stability of a society? Should groups be capable of defining who they are and how they should be judged for themselves based on historical discrimination? And who can regard these assertions of historical discrimination as invalid without opening themselves up to accusations of oppressive behavior, as could be the case in Canada, (again, see Moran, 2010)? Can a people completely lower their standards by abusing their victimhood status? I do not see why that’s impossible.

Equality cannot obviously be the standard by which one’s behavior is determined reasonable because the facts that constitute the context of a case prohibit it from being held to the same standard in every instance of similar cases. However, if taken to an extreme, the reasonability standard, if it is hyper-focused on specific instantiations of behavior, may completely ignore standards the society generally regards as necessary to the maintenance and stability of their society. Genuinely, the battle over what is reasonable is a battle over how one wishes to see the world look, the standards to which people are held, and the behaviors that are perpetuated throughout a society. This, after all, is the nature of a blend concept.

Attacks on the standards of Europeans, as I see them, have been couched in arguments about power differentials. I.e., power is disproportionately in the hands of Wealthy, White, European, Heterosexual Men, and it is their standards of what is reasonable that oppress Poor, non-Europeans, people of color, non-Heterosexual people, and Women. And in some sense, they are right: societies are not founded on reason, the reasons of a people justify their use of power, and their reasons are relevant if they maintain the society established through their use of power. But it is not just power that is the question. It is the fact that they used their power competently, effectively, and meritoriously that enabled them to differentiate themselves from the people around them and establish their own society. It is also this use of competent, effective, and meritorious power that enables them to coordinate the members of their society to maintain and stabilize their society. It is not power alone that maintains a society.

Existentially, this means a few things. As Moran seems to wrestle with, it’s not clear whether an individual can be reasonable if their reasons are not in agreement with the interests of the public. Should your reasons only be what the public say your reasons should be? Doesn’t this imply that you are merely an agent of a collective body, effectively without a center? This also means that one may regard their reasons for doing something as reasonable, justified, evidence-based, statistically sound, and appropriate for the circumstances they find themselves in, but if the public do not, simply because they are utterly incapable of understanding your reasoning, evidence, statistics, or determining whether your statistics and evidence are valid, they may regard you as unreasonable. And if they regard you as being so unreasonable that you must be cast out of their society because your interests are clearly not aligned with theirs, they may. With respect to arguments of good and evil, godliness and sin, this could imply many things.

Ultimately, I think it’s best to refer to an argument made in the body of this paper: specifically, given that a society has certain goals, and the values, interests, and relevant reasons of that society are predicated on that goal, which is really about maintaining and stabilizing themselves, if that society is not maintaining or stabilizing itself, yet it is still aiming for the goal that it deems relevant to its existence by its reasoning, i.e., the society is degrading, then the values and interests of that society are antithetical to the natural limitations that constrain them, which are God ordained. Those who ignore their natural and God-given limitations must pay for doing so. A society that does not regard these limitations, regardless of whether it calls you evil, wrong, negligent, harmful, heretical, unreasonable, insane, or a menace to society will endure the judgment of God and Nature. Its admonishments of you are genuinely as meaningful as the void. For their admonishments will neither maintain your quality of life or your posterity’s, your or your posterity's values and fundamental beliefs, help you survive or your posterity survive, or preserve your or your posterity’s being. Such a society is better left to the trash bin of history. 

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