Academic

Gardner on the Reasonable Person

By Lawrence Solum

John Gardner (University of Oxford - Faculty of Law) has posted The Mysterious Case of the Reasonable Person (University of Toronto Law Journal, Vol. 51, p. 273) on SSRN. Here is the start of the article:

Who is the ?reasonable person?, that ?excellent but odious character?1 who seems to inhabit every nook and cranny of the common law? Until I read Arthur Ripstein?s book Equality, Responsibility and the Law, I thought I knew the answer. I generally understood the word ?reasonable?, in legal contexts, to mean no more and no less than ?justified?. A reasonable action is a justified action, a reasonable belief is a justified belief, a reasonable fear is a justified fear, a reasonable measure of care is a justified measure of care, etc. By the same token, the common law?s reasonable person (I fondly thought) is none other than a justified person, i.e. a person who is justified in all those aspects of her life that properly call for justification. She is justified in her actions, her beliefs, her fears, the measure of care she takes, and so on. Thus, to say that one?s actions or beliefs or emotions or attitudes etc. were those of the reasonable person is merely to say, in a typically roundabout lawyer?s way, that one?s actions or beliefs or emotions or attitudes etc. were justified ones.

Highly recommended.

Full post as published by Legal Theory Blog on May 04, 2009 (boomark / email).