Tag Archives: Reasonable person

The unreasonable person test

A couple months ago one of my professors asked us to pick out what we think are characteristics of the legal concept of the “reasonable person.”

The reasonable person test is a standard that judges have used for centuries in an attempt to create an objective legal test for evaluating behaviour. The theoretical reasonable person is one who shows acceptable care, skill, and judgment in a given situation, according to the values of the community.

The idea of the reasonable person has morphed and changed with time. It has also faced significant critique, given that in practice, the reasonable person essentially amounts to the reasonable judge. Since the bench has consistently lacked diversity, the reasonable person becomes the white, male, upper-class reasonable person.

So, my professor asked us who we think the reasonable person would be. After some silence, my hand shot up, and I declared “white, male.”

These are the immediate characteristics that I thought of, and there is considerable evidence to support this claim from well-respected scholars and experts. However, I was immediately seized by a feeling of awkwardness that filled the classroom. Both the professor and I are racialized women. The class was mostly white, and evenly split between men and women.

Eventually, more people added some other relevant characteristics. The awkwardness was soon broken when someone noted that the reasonable person in practice was basically Mr. Darcy, of “Pride and Prejudice” fame.

Since then, I have carried the lingering sensation that I did something wrong or inappropriate when giving my answer. I even found myself questioning my judgment, wondering why I didn’t consider the possibility that my answer, given in a classroom where both my professor and I were racialized women, might lead to an uncomfortable situation.

My interpretation of the sensation was that I felt people responded in a skeptical manner. For instance, if I had been white or my professor had been white, I feel like the legitimacy of that statement would have been enhanced. Our collective marginalization left me feeling that we weren’t believed. It continues to bother me. I wonder what I should have done differently. Could someone else could have been an ally in that space, mitigating that tension sooner by voicing their agreement?

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