The Trial of the Reasonable Man

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The Trial of the Reasonable Man

Hugh O’Reilly[1]

 

Many first-year law students will make the acquaintance of the reasonable man in their burgeoning study of law this term. He is one of law’s most ubiquitous characters; the man on the ‘Clapham omnibus’, the man on the ‘Bondi train’ or the man ‘mowing the lawn’. He permeates various areas of law; negligence, criminal and more recently (and troublingly), the realm of public law. He is used as a barometer of culpability whilst simultaneously acting as a legitimising rhetorical device for judges, against whom they may couch their decisions.

 

Different men in different areas of law make a coherent ontology difficult to outline, meaning our understanding of reasonableness can become little more than a vague sense of familiarity or commonality. Quickly, the intuitive resonance with which we greet the concept dissolves into a vague caricature. This note will interrogate whether this intuitive resonance can in fact stem more nuanced legal discourse, by placing this reasonable man on trial.

 

The Charges

The opening charge against this amorphous character pertains to his fundamental existence – is there a universal reasonableness that is common to all of us, which we can personify and ingrain in our law? The reasonable man is an iteration of the commonly purported presumption that human experience may be distilled into a singular axis of common thought. The concept has an obvious appeal; giving us the opportunity to blame and offering us the promise of an answer. However it is with relative comfort and passivity that we presume to be able to import ourselves into any given situation and identify or distil a conception of reasonableness, which is then used as a barometer of culpability.

 

Of course, this is tangible where the situation involves scenarios we can empathize with; what is reasonable when driving on the motorway, or when we precariously leave a ladder in front of pedestrians on the street. But what is reasonable when an individual has learning difficulties and is facing child care proceedings is less clear. The very notion that we may import a standard of reasonableness in itself becomes perverse; an iteration of Schrodinger’s Cat. Why then has this concept become a cornerstone of our legal system, ‘the neutrality we have … is often but a sham’[2].

 

Beyond this, even if we were to agree that it is possible to tap into this transcendental reasonableness, it may be argued that still reasonableness fails to set any standard at all. A brief look at the seminal Donoghue v Stevenson[3] case would seem to support this contention. The judgment is littered with the word reasonableness; invoking reasonably foreseeable circumstances, reasonable care and reasonable proximity. Problematically, its repetition renders it an opaque tautology.

 

By employing a default norm of nothing – of normality – the reasonable man presumes a background against which standards of behavior may be broken down and extrapolated. The danger therein lies where the normative and the biographical are being drawn.

For example, in relation to child defendants, instead of articulating a normative account of care, judges may tend to invest in the concepts of prudence or care a conception of normality. Mayo Moran’s comprehensive analysis of this area demonstrates that populist conceptions of the care free, playing boy have exonerated male child defendants, whilst a similar latitude has not been extended to their female counterparts[4]. An iteration of ‘boys will be boys’ permeating the concept reasonableness. The danger is one where the reasonable person may promote normalcy rather than reasonableness.

 

Thus, is the standard being set one of reasonableness? One that is unjustifiably normal or one which is justifiably reasonable? If it is the former, then we are in danger of copper fastening bias and discrimination with the force of the law – being heard as reasonable rather than actually being reasonable. The cumulative effect of these charges – the opaqueness of reasonableness and the elasticity it offers – are the perfect legal milieu for judges to define the definition. Thus, the concept of reasonableness is susceptible to becoming an implement for the exercise of power rather than a tool in the exercise of reason.

 

 

 

The Defence

It may be argued reasonableness is a fallacy; a hollow vessel driven by a homogenous judiciary. And to an extent this is true. But this is not necessarily the big secret that law has been hiding. The disdain with which reasonableness is regarded is tempered by your personal conception of the judicial process. Instead much critique levelled at reasonableness may be considered a microcosm for the critique of judicial discretion, appalled at the prospect that judges may not be sticking to a legal algorithm and instead may employ a balance of intuition and fettered legal doctrine. However, in the realm of adjudication the question may be asked what algorithm may be created to answer the multiplicity of questions reasonableness asks.

 

The danger is that he sets no standard – simultaneously acting as an infallible, always prudent, whilst attempting to coalesce with some concept of normality. The manner in which he sets no standard means he may be calibrated to any standard which the judge chooses. Thus, concerns regarding his gendered nature are not ameliorated by his transformation into the reasonable ‘person’. His danger is not the setting of a male standard, rather the setting of no standard[5].

 

This is a problem – as we traverse our individual worlds and interact with the rules which govern our society, it is imperative we know our position relative to the law. A tautology of reasonableness offers no guidance for this. Reasonable prudence, reasonable care and reasonable proximity are hollow soundbites. It leaves us with a rule where we must act in accordance with ‘those considerations which ordinarily regulate the conduct of human affairs’. Thus, the rule is a non-rule; it is the same as if it didn’t exist at all. ‘Carry on’ as it were.

 

Although this may seem like a shameless abdication of responsibility on the part of the law, it is in this function that the reasonable man is most potent. As it is exactly in this multi-textured world where circumstances and scenarios are so varied that it is impossible to construct a legal formula which can pre-emptively address and circumscribe all our various woes.

 

The danger in attempting to create such a legal rule would be an intrusion on the dichotomous relationship between certainty and flexibility. An attempt to create a legal rule operates in a polycentric web of rules which are themselves tethered to concerns of flexibility and certainty. In this web of rules wedded to other rules, it may be tempting to move out of this sticky web and instead opt for a rule which operates in a deregulated zone. A non-rule rule.

 

Much of the critique of reasonableness is reliant on the critical self-consciousness fallacy; that there is an autonomous zone in which we can assess issues in a vacuum void of our bias’ and presuppositions. To do so is impossible. Moreover, in the legal realm, it is not desirable. The reality is that we seek a middle ground, an adjudicator both informed and divorced from their personal experiences and convictions.

 

This requires an anthropomorphised iteration of justice or fairness, an area in which the law almost deregulates itself and offers a zone in which decisions are insulated from the polycentric ripple effect they so often generate. A concept which employs both logic and flexibility. Perhaps something like reasonableness.

 

However, the discussion does not and should not end here. Instead, an acknowledgement that this is the judicial decision-making process is liberating in a way. It lets the secret out in the open. Here then, we can cast a more critical eye over judicial decision making in a place where we can see behind the thinly shrouded veil of reasonableness and appreciate the process that judges or finders of fact are actually engaged in.

 

Conclusion

Most troubling is the insidious and subconscious proliferation of reasonableness; the reaching for the reasonable man simply where the law is uncertain. In this regard he is stifling, stemming nuanced legal discourse in place of a vague placard of reasonableness.

 

However much of the charges against reasonableness are misplaced – they are charges against judicial discretion. They equate to attacking the dummy rather than the ventriloquist. Instead it is imperative to remove the dummy, and to reveal that behind such concepts there is a judge or a finder of fact, each informed by various personal experiences and traits, rather than a mystical and pre-eminent reasonable man.

 

 

 

 

[1] FE1 Candidate.

[2] William Jennings Byran (1923).

[3] [1932] AC 562

[4] Mayo Moran, Rethinking the Reasonable Person(1st edn, OUP 2003).

[5] John Gardner, The Many Faces of the Reasonable Person 131 LQR 563.

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