The ‘Reasonable Man’, his Nineteenth‐century ‘Siblings’, and their Legacy
| DOI | http://doi.org/10.1111/jols.12036 |
| Date | 01 September 2017 |
| Published date | 01 September 2017 |
JOURNAL OF LAW AND SOCIETY
VOLUME 44, NUMBER 3, SEPTEMBER 2017
ISSN: 0263-323X, pp. 406±32
The `Reasonable Man', his Nineteenth-century `Siblings',
and their Legacy
Chris Dent*
The reasonable man is the best known, but not the only, legal construct
to be born into the nineteenth-century common law. This article
introduces the man's siblings ± including those from the areas of trust
law, criminal law, contract law, and intellectual property law (both
patents and trademarks). The fact that some of these `men' changed the
law is not controversial; this research further highlights that while
several of these came to life in that century, only some had a significant
role into the twentieth century. Those that did are tied to the
foundations of our society through their role in facilitating innovation
and consumer protection. The argument is that it was the constructs'
nature and their capacity to accommodate public policy issues that
enabled the vitality of the `reasonable person' (negligence) and the
`person skilled in the art' (patents).
Over the course of the nineteenth century a new tool came to life in the hands
of the English judges, a tool that offered a new way of deciding cases and a
new way of seeing the parties to those disputes. This creation ± a constructed
individual ± enabled the courts to judge, in a particular way, the parties, and
their behaviour, before them. The relationship between the `reasonable man'
and `his' neighbour may have achieved greater notoriety in 1932;
1
however,
the alternate versions of the `man' himself had been sown over a century
before. These constructs impacted, in the short term, on the scope of legal
406
*School of Law, Murdoch University, 90 South St, Murdoch, WA 6150,
Australia
C.Dent@murdoch.edu.au
This research has benefitted from Michael Bryan, Jason Bosland, Andrew Christie,
Jeremy Gans, Matthew Harding, Robyn Honey, Michael Lobban, Mark Lunney, Ian
Malkin, Bruce Oswald, Megan Richardson, Peter Rush, Lisa Young, the Melbourne Law
School Library Research Service, and the anonymous referees.
1Donoghue v. Stevenson [1932] All E.R. 1; [1932] A.C. 562.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
liability; in the longer term, they facilitated the greater use of public policy in
the law ± particularly in the areas of innovation and consumer protection. In
short, the expansive role of law in society now may not have been the same
but for the constructs. While there are other analyses of the `reasonable man'
in tort law,
2
this is the first to consider the construct outside the area of
obligations and to explore the consequences of the greater use of the con-
structs ± a number of which would not have been in the contemplation of
nineteenth-century judges.
This research is ambitious. It seeks to explore the impacts of constructs
that arose in a wide range of law ± including torts, contract and trust law,
intellectual property (IP) law, and the criminal law. This breadth is important
as it enables a higher-level perspective that offers advantages over a more
focused exploration of the changes wrought within a set cause of action. The
commonalties identified suggest that the constructs presaged a new way for
the law to see, and judge, people in society ± despite the fact that, a number
of the effects merely reinforced the processes and biases that were already in
place. What will be shown, regardless, is that not all the constructs grew to
dominate the area of law into which they were born. The final part of
analysis here, then, is a consideration of the reasons for the success of those
that did.
NINETEENTH-CENTURY LEGAL CONSTRUCTS
This part focuses on the early legal constructs that arise in different areas of
law. To be clear, a construct, here, is understood to be a judicial creation that
is separate or distinct from the parties that appear in court. Its use is to decide
(part of) the outcome of the case before the courts and is adopted as the
appropriate decision-making tool in future cases in that area of law.
3
407
2 DiMatteo, for example, takes a more philosophical approach: L. DiMatteo, `The
Counterpoise of Contracts: The Reasonable Person Standard and the Subjectivity of
Judgment' (1997) 48 South Carolina Law Rev. 293. Other analyses will be referred
to in the discussion below.
3 The characterization of the constructs as tests, therefore, distinguishes the terms
from their more `casual' uses. For example: `let us consider the deeds themselves,
and see if any reasonable man can say, these are the deeds of a man of sound
intellect, fairly exercising his mind, uninfluenced by falsehood, and unswayed by
deceit' (Blachford v. Christian (1829) 1 Knapp 73, 79). Here the use of the phrase
was not as a test. An earlier example is the reference to the `reasonable man' in
Hawkins: see W. Hawkins, Treatise of the Pleas of the Crown (1739, 3rd edn.).
Here, of course, these were not the words of a judge in a decision; further, they were
aimed at describing the actions of a Justice of the Peace and not of a party to an
action.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
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