The 'Reasonable' Dude.
"The Reasonable Man" is a highly important term of art in English Law (and American I imagine). It is the objective standard by which we are all judged in law.
• In criminal law, a defendant usually has to come way below the standards of the reasonable dude.
• To be guilty of manslaughter by negligence you have show an appalling level of care, skill etc. (A doctor - Adomako - was not guilty despite disconnecting an oxygen tube in an operation, something no other doc would've done in his shoes).
• To be guilty of dangerous driving you have to drive "Far below standard of REASONABLE driver".
So it appears that in negligence our REASONABLE DUDE is a mark for a variety of levels of standard, not just simply what he might do, but something far worse than he might do.
Q: How can this horribly imprecise (supposedly objective) standard get worse?
A: When the law begins to attribute the defendant's characteristics to the 'reasonable' man.
Example:
1. Provocation as a defence can reduce murder to manslaughter.
2. There are two tests to pass:
a. Subjective - Defendant is so subject to passion as to lose control of his mind.
b. Objective - That the provocation was enough to cause a REASONABLE DUDE to lose his self control and to act as D did.
3. Fine, right?
4. No.
5. Because the law attributes to the reasonable dude 'any special characteristics that affect the degree of control a jury could reasonably expect from D and which it would be unjust not to take into account.' E.G: ANYTHING.
Analysis:
This means that the jury, when wondering if the reasonable man would've acted in provocation as the accused did, can give the accused:
• A raging temper.
• A psychopathic disorder.
• PMT.
Further, as the academic John E. Stannard describes the defence thusly: “perhaps unfortunate, as it requires a jury to make the surely unwarranted assumption that reasonable men sometimes kill when provoked.”
Indeed, Michael Allen points out that a jury, when considering whether the reasonable man with D’s characteristics may have done what D did, may well consider his actions, as being the actions of such a person with his characteristics, as evidence of what would happen. As Allen concludes, “How utterly bizarre!”
I have myself written a provocation defence which I believe is just. I shall post it later, would be overkill to provide it now, you've had quite enough for one session!
So, "The Reasonable Dude" is basically a pretty shoddy attempt by the law to deceive the public into believing that its subjective judgments are actually objective...
posted by Matt McGrath at 1:15 pm
2 Comments:
Perhaps it depends on what you consider a 'reasonable' man to be.
You seem here to be considering a 'reasonable' man to be a synonym for an 'average' man. In which case, your argument is fair enough.
If however, you consider a reasonable man to be 'a man capable of reason' - then this does NOT require a jury 'to mae the surely unwaranted assumption that reasonable men sometimes kill when provoked'.
Because, if said man was provoked, or impassioned to the point where reason was subsumed by rage and fury - then said man would no longer be 'reasonable', but would be acting our of irrational emotion - and therefore could not be said to be acting under the impulse of a free, rational will. Thus, there would be no ethical justification for holding him responsible for his actions.
The objective standard would lie in providing empirical proof that the defendant was / is either fully in possesion of his rational faculties ('reason') at the time of the murder - or whether he was impassioned to a point beyond the control of reason. In which case - the jury makes a judgement based on empirical objective evidence that the crime was manslaughter, not murder.
Of course I agree with you...
It's the scenario given in Minority Report: you are faced with the man you believe has raped and killed your little girl...
There are many situations in which a man might not be responsible for killing because he is so provoked as to lose self control by events that would have the same effect on any of us.
The problem I'm highlighting is that the law is in danger of becoming too understanding to the perpetrators. After all, we do still live in a society where we are told it is better to walk away. You cannot take the law into your own hands. The reason for this is that you are not detached enough from the situation to recognise what would constitute justice.
Some crimes of passion are understandable, others less so.
You are right in what you say though, and as I hinted, I've formulated a test which I think satsifies justice. I shall post it later, and accept that such a task is too great for any man to claim to have conquered completely.
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