THE REASONABLENESS REQUIREMENT is by no means perfect. We've seen how it allows dominant culture defendants, namely White heterosexual males, to get away with murder. We've also seen how it disadvantages others whose beliefs and actions are not considered reasonable in the eyes of the average American. One concerned about fairness in the criminal justice system might legitimately ask, Why bother to retain the requirement? Why not, as some feminists and critical race scholars have proposed, abandon the pretense of neutrality and objectivity, which is all that the reasonableness requirement seems to offer?
While I am just as harsh a critic of the reasonableness requirement as others, I believe we should retain it, warts and all, because the alternative—a completely subjective standard—would be worse. If we were to abolish the reasonableness requirement, then all a murder defendant would have to do to receive an acquittal is say, “I honestly believed my life was in danger and that's why I shot the victim.” Even if the victim made no threatening move and said nothing to indicate any hostility prior to being killed, the jury would have to acquit as long as they believed the defendant was telling the truth. Likewise, a murder defendant who claimed he was actually provoked into a heat of passion would almost automatically receive the mitigation to manslaughter, no matter how ridiculous his claim of provocation. Without a reasonableness requirement, no objective limits would restrict the ability of a defendant claiming provocation or self-defense to obtain the outcome he or she desired.
The problem with the reasonableness requirement is not that it exists, but the way it is applied. As discussed in chapter 9, legal decision makers in self-defense and provocation cases apply a positivist conception of reasonableness, equating reasonableness with typicality. The problem is that what is typical is not always that which is just. For ex-