ABSTRACT
Law and Objectivity*1 is a work o f rare distinction. It accounts lu cidly fo r the elem ents o f objectivity and o f subjectivity in legal though t, w hether in relation to the elem ents requ ired by the law for liability, civil o r crim inal, o r in relation to the objectivity, in tersubjec tivity, o r even pure subjectivity found in the weighing o f legal argu m ents. In relation to the form er topic, Kent Greenaw alt rem inds us th a t liability ju d g ed by the foresight o f the reasonable person is objec tive, by contrast with liability grounded in the actual in ten tions o f an acting perso n .2 In relation to the latter, while he acknowledges a m ea sure o f objective rightness and wrongness and a considerable degree o f intersubjective checkability in the weighing and balancing o f argu m ents, he nevertheless concludes that, on any fine p o in t o f balancing, reasonable people can differ. These differences are n o t objectively corrigible. To that extent, there rem ains an elem ent o f apparently irreducib le subjectivity in the inevitable leeways o f legal ju d g e m e n t . 3
In deep respect for a distinguished colleague, w hom it is a very real h o n o r to jo in in honoring , I should like to offer som e thoughts o n the concep t o f the “reasonable” in response to the two points I have ju s t highlighted. O n the latter in particular, now as in the past, I find myself very m uch o f the Greenawalt camp. In do ing so, I am partly restating and partly reth ink ing some ideas I published a few years ago .4
