Sid DeLong and the Reasonable Man
L’Homme Raisonnable: C’est Moi!
Sidney W. DeLong
When a judge is asked to interpret the meaning of a term in a contract, she is not expected to answer simply, “It means X” or, perhaps more modestly, “To me, it means X.” That would not be deciding the case under the rule of law, which prohibits, as Judge Traynor said in Pacific Gas and Electric Co. v G.W. Thomas Drayage & Rigging Co. 442 P.2d 641 (Cal. 1968) the court from imposing “the judge’s own linguistic education and experience.”
Instead, the judge is required to interpret the contract by using the Objective Theory of Contract Interpretation. The judge first considers extrinsic evidence of any relevant facts that were apparent to both parties at the time the contract was made. Then the judge decides what meaning the contract language would have to a “reasonable person” in the position of the parties who was aware of those facts. The court ignores extrinsic evidence of the parties’ actual or “subjective” understanding or belief about the meaning of the contract. (Some judges might consider subjective understandings if both parties admit that they held them.)
But how does a judge who follows this procedure decide how such a “reasonable person,” informed about the relevant context, would have understood the contract language? Must the judge have in mind an operational concept of reasoning? Are the cognitive characteristics of a reasonable person learned in law school or from treatises? Are these specifications a matter of public knowledge? If the answer to these questions is “no” then how is the objective theory of contract interpretation even theoretically possible?
A hint might be given by philosophy. In analytic philosophy, Moore’s Paradox arises when a person says, “A is true but I do not believe that A is true.” Moore noted that even though this statement is bizarre, it is nevertheless logically consistent, it is not self-contradictory, and it is possible that both of its disjunctive elements may in fact be true. But it is also impossible for us to imagine a person making such a statement and meaning it.
A speech act theorist might argue that Moore’s statement is self-contradictory because to assert that something is true is to assert by implication that one believes it to be true. But this argument begs the question by ignoring the second part of the sentence, which expressly refutes the implication.
Moore noted the further curious fact that very similar statements are not paradoxical at all. For example, it is not absurd to assert both the propositions of Moore’s sentence as of a time other than the present (“A was true but I did not believe that it was true.”) or about a different person (“He said that A was true but he did not believe A was true.”)
Now consider the application of Moore’s Paradox to the judge who announces an interpretation under the objective theory of contract. As noted above, she cannot simply say, “The clause means X” because that would not be using the reasonable person test of the objective theory. She must instead say, “X is the meaning the contract language would have to a reasonable person in the position of the parties at the time the contract was made.”
“But how do you know what a reasonable person would interpret the language to mean in those circumstances?” the losing litigant might ask.
“Because that is what the term would mean to me.”
How can she give any other answer? She would commit Moore’s Paradox if she said:
“I find that a reasonable person would understand this term to mean X even though I understand it to mean Y.”
The heuristic construct of the reasonable person must always be the judge herself. But the Reasonable Person to which the judge appeals is not in any sense “objective.” She is just the judge herself, referred to in the Third Person.