The Reasonable Person: A Conceptual Biography in Comparative Perspective

As the common law’s most enduring fiction, the reasonable person fulfills a great many different roles across very different bodies of law. Courts reach for the reasonable person when the relevant standard requires some attentiveness to the individual qualities of the litigant as well as to the objective content of the legal norm. This unique blend of subjective and objective qualities forms the conceptual foundation for the reasonable person and is the source of his utility. Thus it is unsurprising to find him making many appearances across both private and public law. Beginning with tort law and then moving across other fields of private law, into criminal law and now more recently into administrative and constitutional law, the reasonable person has enjoyed a period of remarkable expansion. However, oddly enough, this expansion has occurred at the very same time that the reasonable person has been bedeviled by increasing controversy. Though there is some general skepticism about whether the reasonable person is anything more than just a vehicle for judicial discretion, many of the critiques of the reasonable person also have a much sharper edge. Egalitarian critics point out that the reasonable person all too often seems to serve as a vehicle for importing discriminatory views into the heart of the legal standard. And the reasonable person does indeed seem to be inextricably bound up with equality — apparently vital to securing the law’s commitment to interpersonal equality, at the very same time that he also appears to fatally undermine it. This paradoxical relationship of the reasonable person to the law’s aspiration to equality is perhaps nowhere so evident as in the fact that he was imported into very equality-sensitive areas of public law at the very same time that he was being forcefully critiqued on equality grounds in private and criminal law. Tracing the equality effects of the reasonable person through his various appearances helps to shed some light on this otherwise paradoxical development. Indeed, it is clear that the reasonable person was initially imported into equality-sensitive areas of public law precisely for egalitarian reasons. Noting how this is so makes apparent that the reasonable person actually occupies several quite different roles, some of which are culpability-determining (as in tort and criminal law) and others of which are perspectival or judgment-related (as in administrative and constitutional law). Viewed in this light, it is possible to better understand the introduction of the reasonable person in equality-sensitive areas. Fuelled perhaps in part by increasing sensitivity to the problem of objective judgment, judges began to turn to the reasonable person when egalitarian concerns were acute. So understood in this context, the reasonable person could actually serve to correct structural deficiencies in the judicial point of view. This approach suggests some important implications for how the reasonable person inquiry ought best proceed. There remain, however, pressing questions about whether the reasonable person is actually the best means for correcting structural difficulties with the judicial point of view.

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