As the common law relies on the concept of "reasonableness," the civil law relies on the concept of "Right." Professor Fletcher argues that reliance on reasonableness enables the common law to develop rules that can be voiced in a single standard. Such rules permit what Professor Fletcher terms 'flat" legal thinking. In contrast, the civil law's reliance on the concept of Right leads it to develop rules that proceed in two stages: the first rule asserts an absolute right; the second, a limitation based upon criteria other than Right. The application of such rules proceeds by what Professor Fletcher terms "structured" legal thinking. Professor Fletcher demonstrates how the common law's predilection for reasonableness and flat legal thinking has led it to ignore fundamental distinctions in the criminal law, such as that between self-defense and putative self-defense. He concludes that the preference for reasonableness is the expression of a pluralistic legal culture; the concept of Right, the expression of a monistic one.
Civil Law | Common Law | Law
George P. Fletcher,
The Right and the Reasonable,
Harv. L. Rev.
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