• This article, The Reasonable Man - Law's Ghost God is published in two parts. This is Part 1. Part 2 follows and includes, at the conclusion, the references for this article.

Every religion has a God.

In law, this is the reasonable person, a mystical, esoteric ethereal being, revered by our high priest and priestess, the judges of our courts of law; the ultimate legal fiction.

One jurist called the reasonable person, "the spirit of the English common law".1

Any strict, colourless legal definition of reasonable man (aka the reasonable person) cannot do justice to him/her or his/her role in law.

THE (WO)MAN

Ronald Collins wrote:

"There is perhaps no other person in the history of common law jurisprudence whose notoriety approximates that of the reasonable man. His is the legend par excellence of the legal profession. Generations of law students have studied his every attribute. Scores of attorneys have proclaimed his virtues to the world. He has had a greater impact on the Anglo-American system of jurisprudence than most of the renowned jurists of the last three centuries."

reasonable manThe reasonable person is immutably rooted in such disparate realms of the law especially as a beacon as to what conduct constitutes negligence, but also in contract law and criminal law:

"The concept of the reasonable man is the traditional, basic standard for construing claims for damages based on negligence, insult, mental suffering, and defamation; as a guideline in evaluating defendants' conduct in criminal law cases; and as a key to the ascertainment of deviance, delinquency, and mental illness leading to institutional confinement."2

Although he/she is constantly evolving with the times, the reasonable person is used as a beacon of proper and reasoned conduct against which the conduct of others is judged.

"He is a man only of average intellect and intelligence, and not transcendently wise. He is very human his wisdom is only of the common worldly sort, he cannot foresee the unexpected , though he learns from past experience, he is not one of whom we say contemptuously he is wise after the event, acting circumspectly himself, he is not extreme with his neighbours, requiring them to be more than careful, he begs them only to act circumspectly too, he is most particular not to do harm to his fellows deliberately , and when he does injure them we cannot blame him, for we know that it must have been from sheer necessity, or that it was unintentional, and that things could scarcely have happened otherwise.

"Indeed, he will often avoid causing people trouble which after all every one would have said had served him right."3

What are we to make of this hero, or heroine, of the common law - this invaluable beacon of average, so omnipresent in our body of law?

THE BEAST

Roman law knew of the bonus pater familias (the good father).

The civil law has its own version. In Quebec, they have taken to calling the reasonable person: le bon père de famille or l'homme de la rue, the good father, man in the street, the ordinary, prudent fellow.

If ever in fact the reasonable person were to walk into a courtroom, the judges, lawyers, the clerks and the Sheriff would all instantly prostrate themselves before the apparition.reasonable man

As with all Gods, the priests are not unanimous:

"No one knows just exactly how the reasonable man first appeared in the law. Some argue that he evolved. Others maintain that he was created. A few suggest that he is a mythical creature that really doesn't exist at all. Many honest observers have admitted that they could not care less. Most agree that he ought to be put to death regardless."4

Some point to the 1837 English case of Vaughan v Menlove as the first recorded instance of an apparition of the reasonable man in common law jurisprudence. In British courts, a bit of colour was given to the poor gentleman and he was dubbed forever anonymous:

"... the man in the Clapham omnibus".5

But even that was controversial. Justice Hilbery must have taken that particular bus route because he wrote in reply, in the 1947 case, Lea v Justice of the Peace:

"God forbid that the standard of manners should be taken from the man in the Clapham omnibus."

The reasonable person is more like the invisible man as it is of his or her very nature to be invisible, in and out of the court rooms like a ghost, leaving tracks everywhere but never to be actually found.

Law professors race each other to introduce the reasonable person to their first year students as few classes could be more interesting or fun - or wide-open. It's a great way to scare law students, especially those who thought that the law was nicely packaged, with clear borders all around.

Hah!

 Meet the reasonable man, kid!

Historically, the reasonable person has been known as the reasonable man but for reasons of gender politeness, the law now defers to the term reasonable person; well, at least we do - not all judges do.

The reasonable person is the catch-all, the fallback, the safety net of the law, filling in and allowing for judgment where there is no written law or precedent on conduct in a specified circumstance, the question of right or wrong in these cases determined by reference to the standard of the reasonable person.

We all want our children to be raised in the image of the law's reasonable person, a model citizen. To Fleming on the Law of Torts, the reasonable person is:

".. the embodiment of all the qualities which we demand of the good citizen if not exactly a model of perfection."

Such a child does not injure others and takes care to ensure that his or her property, including animals, does not injure others and if and when they do, we compensate them fairly and takes corrective action so that such demos does not recur. The child raised in the image of a reasonable person is not disputatious and does not defame or slander others but he will speak up if the sense of duty compels him - but never with malice.

< … continued ... see Part 2 …. >

• This concludes Part 1 of The Reasonable Man - Law's Ghost God. Part 2 follows and includes, at the conclusion, all references.