Can the Law Do Without the Reasonable Person?

I Introduction

In recent years, Canadian scholars have led the world in developing tort theory and in advancing our understanding of how tort theory intersects with the theory of the criminal law.¹ Nowhere is this leadership better illustrated than in Mayo Moran's Rethinking the Reasonable Person; but Moran's book is different from other contributions. Its theory is developed from the 'bottom up,' from an examination of the cases to a theory of the cases, and not from the 'top down.' So, for the first time since the publication of Hart and Honoré's magisterial work on causation in the common law,² we have a work on the theory of tort and crime whose thesis is teased from a comprehensive examination of the judicial development of principles of liability across the common law world. Unlike Hart and Honoré's book, however, which often simply blows the common law trumpet, Moran's book aims to provide a devastating critique of the common law use of the concept of the 'reasonable person.'

We can think of the development of the reasonable-person test (as a legal criterion for judgement of conduct) as being a part of the principally nineteenth-century movement to reform the common law in a positivistic spirit. It is natural to suppose that the adoption and employment of reasonableness standards to judge defendants' conduct is inconsistent with a positivist approach to law because the employment of such standards involves merit-based assessment each and every time the standard is applied and cannot be value-neutral. The supposition is at best a half truth. The attempt to move away from a system of dispute resolution based wholly on case-by-case assessment of the merits of plaintiffs' claims, wherein findings of liability are always morally and legally 'particularist' (unique to the facts and resistant to treatment as binding precedents), and institute a system in which cases are judged in accordance with a standard independent of a given set of facts, such as the reasonable-person standard, is a movement of a positivistic kind. The formal adoption of a given incarnation of the standard – shaped in accordance, say, with what is normal for mentally competent adults³ – gives later trial judges exclusionary reasons to apply that incarnation of the standard to the facts, whether or not the outcome is truly just in their eyes.⁴ That remains true even if when deciding, in an individual case, whether a given defendant has come up to the standard, merit-based assessment is crucial to the outcome.⁵ Obviously, the law should not give objective standards such as the reasonable person the force of exclusionary reasons unless to do so is believed to have merit; but many theorists have found considerable virtue in the reasonable-person standard. For some theorists whose preference has been for a 'top down' approach to shedding light on common law principles of liability, the reasonable-person concept (when used as a yardstick for determining fault in tort law) 'establishes a reciprocity of care between ourselves,'⁶ or (when used to establish the limits of duty) 'is ... the person whose actions display appropriate regard for both her interests and the interests of others.'⁷ Moran's painstaking research shows what hollow claims these have sometimes turned out to be, as descriptions – if not as an ideal towards which the common law should strive (308) – of the common law's reasonable person.

II Moran's thesis: A summary

Moran is no 'critical' legal scholar, but so far as tort theory is concerned, the way in which she approaches her thesis draws something from that genre, in that her main focus is the 'dangerous supplement': the exception that proves the rule and finds it wanting. In this instance, this is the supposedly special case of children as tortfeasors and tort law plaintiffs. In the law's treatment of these cases, as of cases she examines involving mentally disordered persons, Moran finds a highly discriminatory approach, rooted in judicial reliance on so-called common-sense understandings of what is 'normal' or to be expected...