DAWID CIELOSZCZYK, LAW I
I can’t sleep at night. I don’t know where to turn anymore because not even the incredibly helpful and amazing women at the Career Services Office can help me with my issue. My problem is that I can’t figure out who this enigmatic “reasonable person” is. The courts have been persistently gossiping about them. Who is he or she? Will we ever cross paths? Are they British or German?
The cornerstone of the objective test for determining what an individual should have done in common law context, irrespective of their particularities, is the character of the ‘reasonable person’. What does a person who is not maddeningly brilliant, but not as thick as wood, foresee? This person, according to the courts, ought to have an ordinary degree of prudence and moral sensibility. Sounds pretty clear, right? You must be dreaming.
There is nothing clear about the mythical figure of the law that the courts use in their analysis of an individual’s requisite standard of care in negligence (and elsewhere). For instance, is the reasonable, ordinarily intelligent person supposed to be essentially an extrapolation from what the numerically average behavioral response to a certain situation would be? I find this is unlikely to be the correct conception, as it would be simple to concoct scenarios where the average behavior in certain circumstances is objectively heinous.
Take for example the mortifying case of Kitty Genovese, which produced the infamous “By-Stander Effect”. There, a psychological mechanism was used to explain the shocking result of all of the by-standers watching Kitty’s murder, but doing absolutely nothing about it. If we took the statistical norm for behavior to be what the ‘reasonable person’ would have done in the circumstance, we might have a morally bankrupt reasonable person. Even if the average behavioral response to a set of circumstances is generally unproblematic, I doubt the law could tolerate following statistical principle to an unjust, morally devoid result.
As a result, maybe the reasonable person is actually closer to a moral principle of some sort. That is, it doesn’t depend on our experience of average societal behavior. I have in mind Aristotle’s virtue ethics theory, which nestles all moral worth into one’s dispositions and character. This person would be neither too brave, nor too cowardly, neither too liberal, nor too greedy, and so on. This person rides the mean, the average, and has cultivated their dispositions through habit and experience. Could this be the reasonable person I have been looking for?
It is most fanciful to presume that with mountains of files to deal with at a time, the courts reference virtue ethics in their thinking about the reasonable person in a ski-hill accident. However, even if the virtuous person is still too high a standard for the reasonable, ordinary person, there is no doubt that a mere statistical principle of what people ordinarily do in society may lead to absurdities, as I warned above. There is no comfort in numbers. This is why I think the courts should, and sometimes do gravitate towards the reasonable person that is based on moral principle. This is not to say that there can be no reference to what the masses ordinarily do, for there is some truth behind their actions. But hopefully judges supplement their thinking about the reasonable person with some basic moral ideals.
My last question about the reasonable person is about their gender, race, religion, culture, and so forth. I think these lenses are impossible to avoid, and to ignore them is to ignore a crucial part of reality. This ‘objective test’ intends to elude particularities, but to what extent? Does it steamroll all of the differences into one, giving us an objective test at the cost of ignoring crucial differences, which can lead us to having different expectations in a situation? This is perhaps the most vexing aspect about the reasonable person.
Reasonable people! I call you forward to identify yourselves! You have some explaining to do.