The law does not attempt to see men as God sees them.

~ Justice Oliver Wendell Holmes

Prologue

What happens to the efficacy of the law when a primary standard of constitutional review is undermined by the very law itself? Does it explode? Does it implode? … or does the law just devolve into the abyss of the lowest common denominator?

What I am referring to is the reasonable man or reasonable person standard, which is a frequently used legal term that originated in the development of the common law. The “reasonable person” is a hypothetical character who is theoretically supposed to represent a sort of “average” citizen.

The capacity of this hypothetical person to understand matters is associated with the procedure of making sound legal decisions. The question “How would a reasonable person act under the same or similar circumstances” performs a critical role in legal reasoning in areas such as constitutional law, negligence (torts) and contract law.

The rationale for the reasonable person standard is that the law will promote the general welfare when it serves its reasonable members, and thus a practical function of the law is sought, along with planning, working, or getting along with others. The reasonable person is not automatically the “average person”; it is not a “democratic” standard. To foresee the correct sense of responsibility and other measures of the reasonable person, “what is reasonable” has to be the crucial inquiry.

Indeed, but what happens to the foundation of the law when a “reasonable person,” a legislator or a judge, is not only unreasonable, but may even be a little crazy?

The reasonable man in the common law

The common law case that gave us the modern view of the reasonable person standard was the 1837 English case Vaughan v. Menlove. In that case, the court rejected an argument by the defendant’s lawyers that the defendant should be found negligent only if he failed to act “bona fide to the best of his judgment; if he had, he ought not to be responsible for the misfortune of not possessing the highest order of intelligence.” The court reasoned that such a standard would be too subjective and therefore ruled that the better test was whether the defendant had exhibited “a regard to caution such as a man of ordinary prudence would observe.”

Justice Holmes and the reasonable man

According to Justice Oliver Wendell Holmes (1841-1935), the reasonable-person standard originated from the necessity that life in an organized society mandated “a certain average of conduct,” saying that “a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare.” Following the court’s reasoning in Vaughn v. Menlove, Holmes contends that “the law does not attempt to see men as God sees them.”

Following Justice Holmes’ reasoning, subsequent legal opinions found that in the law there is a reasonable-person standard for children. In most states, children under the age of 6 or 7 are exempt lacking sufficient capacity to know right from wrong. Children from 7 to 17 are usually held to a reasonable-person standard that takes their age into account, unless a child is involved in an adult activity such as driving a motor boat or involved in criminal activity.

Also, there is a reasonable-person standard for doctors. If a doctor misdiagnoses a patient, the question is not, “Was that diagnosis wrong?” but rather, “Would a professional acting under the same circumstances, with the knowledge available to the field at the time of the diagnosis, have concluded that the given diagnosis was reasonable?”

Judge Learned Hand and the reasonable person as cost-benefit analyst

The conception of reasonableness that is most familiar to contemporary law students was introduced by Judge Learned Hand (1872-1961) in the famous 1947 case United States v. Carroll Towing:

[T]he owner’s duty, as in other similar situations, to provide against resulting injuries is a function of three variables: 1) The probability that she will break away; 2) the gravity of the resulting injury, if she does; 3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: If the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL.

The meaning of the Learned Hand B < P x L formula is controversial, but one convincing reading of Carroll Towing is that it adopts cost-benefit analysis as the test for negligence. The reasonable person, so the story goes, analyzes the costs and benefits of her actions and does not act in such a way so as to impose costs that are not justified by their benefits. Economists might associate the Hand formula with what the economic concept of efficiency popularized by appeals court judge Richard A. Posner.

Aristotle, natural law and the reasonable man

Aristotle (384-322 B.C.) taught another approach to the “reasonable person.” He and his followers believed that virtue jurisprudence or the natural law view is derivative from Aristotelian moral theory (or virtue ethics) – the idea that the central standard for morality is the “virtuous agent,” the person who possesses the moral and intellectual virtues.

What are these virtues? The moral virtuous include characteristics such as morality, courage, good-temper and temperance. The intellectual virtues are “sophia” (theoretical wisdom) and “phronesis” (practical wisdom). A criticism with a natural law conception of the reasonable person standard is that this standard seems too demanding. The Aristotelian person of virtue is a “phronimos,” not a person of average ability but rather possessed of an extraordinary capacity to evaluate and choose.

In conclusion, the reasonable person is the judge or legislator that endeavors to see through another’s eyes, and in regards of the facts of a given situation attempts to remove every petty human tendency and unrealistic desire, as a balancing test. However, this characterization of the reasonable person leaves no room for a heroic or a transcendent use of law. How can there be limits on efforts to prevent the negligent loss of life or limb, prejudiced in favor of a cold, economic calculus of loss demonstrative of a Judge Hand or the secular humanist view of Justice Holmes to determine when human life is “worth it?”

Advocates of the “reasonable person” standard defend it as an exercise in approaching objectivity, while critics see it as another form of political correctness. I hold the latter view; however, in a previous article I strongly argued that the acronym “PC” should stand not for political correctness, but for “perversity correctness.”

Epilogue

The word “aspire” means to reach for something higher than yourself. For over 2,500 years the classical tradition following the Aristotle-natural law paradigm understood law as an aspiration to the transcendent – otherwise who would follow it? Likewise in history, many of our greatest kings, jurists, heros and civilizations have followed this credo.

I strongly disagree with Justice Holmes’ view of the reasonable person who contends that “the law does not attempt to see men as God sees them,” for that secular humanist view, although popular with most modern judges, law professors and legislators, is nevertheless born out of a profound cynicism that has nurtured modern liberalism – a separation of law from morality – and unless remedied it will inevitably lead beyond the deconstruction of the original intent of the Constitution’s framers to the collaspe of the rule of law and society.


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