Reason and Reasonableness in the Common Law

Abstract

This Article addresses the central concept of “reasonableness” in the common law and constitutional jurisprudence. On the basis of three examples, the common law of torts, the common law of contracts, and Fourth Amendment jurisprudence, the Article notes that different areas of the law follow fundamentally inconsistent utilitarian, pragmatic and formalist reasonableness paradigms. The significance of this diversity of reasonableness paradigms remains largely under-theorized. This Article submits that the diversity of reasonableness paradigms is a necessary feature of the common law. It theorizes that the utilitarian, pragmatic and formalist paradigms are grammatical markers for the common law norm-generation process. This theory permits a new, more precise definition of hard cases as cases in which these paradigms lead to a different result in a specific legal dispute. It further provides a legal criterion to determine whether hard cases have been correctly resolved as a legal matter rather than as a matter of policy. On the basis of this new understanding of hard cases, it is possible to explain a question left unresolved by Frederick Schauer’s article The Limited Domain of the Law, 90 VA. L. REV. 1909 (2004) namely how the common law develops as a limited domain while remaining responsive to changes in community standards and policy preferences. By means of this theory, the article analyses an important, and potentially dispositive, conceptual confusion underlying the recent Supreme Court affirmative action decision Fisher v. University of Texas, 133 S.Ct. 2411 (2013) and explains how that confusion can be overcome by future courts applying the decision.