Reasonableness in the Law and Second-Personal Address

Abstract

Law students discover very early in their legal educations that the "reasonable person" is a ubiquitous fixture of the law. Whether or not an injury is the product of negligence in tort law depends on whether or not a reasonable person would have taken a precaution which would have averted the injury. Whether or not an offer has been made in contract law depends on whether or not a reasonable person would have taken the party to be conferring a power to create an agreement through acceptance. Whether or not an act of killing an aggressor was done in self-defense in criminal law depends on whether or not a reasonable person would have taken deadly force to be required to repel the threat. The list goes on and on. Over and over again the law asks not just what the plaintiff or defendant actually did or thought, but also what a reasonable person would have done or thought, or what a reasonable person would have understood another person to have done or thought. Defendant's actions and thoughts are compared, that is, to those of the reasonable person. In fact, sometimes what the defendant actually did or thought is irrelevant; all that matters is what the reasonable person would have done or thought. Such is the case, for instance, in the mens rea of negligence in criminal law. If, for example, a reasonable person would have expected a particular act to kill another human being, then one of the mens rea elements of negligent homicide is present even if the defendant did not expect that result, or even if the defendant expected the opposite. Our law gives tremendous weight to the acts and thoughts of the reasonable person.