The Reasonable Person in Criminal Law

Abstract

The reasonable person standard has permeated the legal sphere as a guideline for determining the appropriate judgment in various situations. If one is to be justified, he or she must have acted as a reasonable person would have under the same or similar circumstances. While there are advantages to relying on this universal understanding of reasonableness, there are serious doubts about whether or not such a standard is consistent with the demands of justice. The reasonable person is a difficult concept in law because it aims to objectively assess the behaviour of individuals of different backgrounds, different standings in society and different points of view. The problem is that every individual is bound to have their own idea of what it means to be reasonable based on his or her own experience. Judges and jurors thus often end up ascribing particular characteristics to the reasonable person that are derived from an understanding of the society in which they live. The result is a standard that is both inconsistently defined and insensitive to human diversity. In distinguishing reasonableness from mere rationality it is evident that the main defining feature of the reasonable person is that he or she considers their own interests and the interests of others equally. This thesis defends the idea that in order to properly account for variation in individual circumstances, criminal courts ought to define the reasonable person more clearly by reference to an ethic or standard of care similar to the one endorsed in Canadian and UK civil law. Having an ethic of care model of reasonableness as a jurisprudential guide will help prevent judges and jurors from mistakenly relying on average or rational conceptions of reasonable behaviour as well as foster sensitivity to individual differences and needs.