What is “reasonable conversation” I wonder? This is a tweet I received from a new follower, @GeorgiaHD, a law student, this morning.
This article first appeared in the “THE LAW EXPLORED” series published in the Times, and is copyright of Prof Gary Slapper (@garyslapper) and reproduced here by kind permission of Gary.
What does ‘reasonable’ mean?
It is quite common between work colleagues, cohabitants, and members of organisations for one person to adopt the stance: ‘be reasonable: do things my way’. Being reasonable can mean different things to different people.
Reasonableness abounds in law. There are more appearances of the word “reasonable” in the law library’s case reports and statues than there are grains of salt in the entire food stock of a supermarket. Rules are lavishly seasoned with reason. A virtue of salt as a condiment is that is can enhance different natural flavours without changing their essence, and, similarly, “reasonableness” can help define the clarity of all sorts of rules in such phrases as “within a reasonable time” or “without reasonable excuse”.
In fact, more cases have hinged upon the meaning of the word “reasonable” than any other. Where did it spring from, and can it be defined?
In an early Latin form, the word appears in the first great treatise on English law produced in 1189 and ascribed to Ranulf de Glanville, the chief justiciar of England. In answer to the question of when a mortgage debt should be paid in the absence of an express agreement, Glanville launched a thousand years of conjecture and courtroom quibbling by answering: rationabile terminum, a reasonable time.
In 1215, the Magna Carta spoke of rationabile auxilium a reasonable aid, in an attempt to put a limit on the level of tax a king or lord might levy to help him with the expenses of knighting his eldest son, marrying off his eldest daughter or paying ransom. Defining what is meant by “reasonable” has foxed the best lawyers and philosophers, and many today accept the scepticism of Lord Goddard who said in 1953 “I have never yet heard any court give a real definition of what is a ‘reasonable doubt'”.
One approach is to say simply that everyone knows what is meant by “reasonable” and it can’t be given a flip formula. In a criminal case, a jury can convict someone if they are sure “beyond a reasonable doubt” that he is guilty. In a case in 2005 in London, the jury asked Judge Campbell “What is the definition of “reasonable doubt?”. They asked whether, if they were 90% certain, that was enough to stop the doubt being “reasonable”. He replied saying professors had been discussing that question for many centuries “but it is not a philosophical matter, it is common sense…so do not get bogged down in 90%s and in interesting academic discussions about reasonable doubt, just say: ‘We are sure’ or ‘We are not sure’”
In some areas of law what is reasonable is determined by referring to the standards of “the reasonable man”. There has never been any reference in law to a reasonable woman (in a fictitious 1935 case, A P Herbert noted that “at common law a reasonable woman does not exist”), although these days the courts usually refer to a “reasonable person”. The reasonable person, though, is really just an imaginary, composite character. So, the courts have tended to use stereotypes to help. The most famous example – because he entered the law reports in thousands of cases – was the invention of reasonableness incarnate: “the man on the Clapham omnibus”. In today’s language it would be “the person on the Virgin train”. The inventor of the Clapham omnibus phrase is commonly identified as Lord Bowen (as advocate Charles Bowen in 1871) but a very similar phrase first appears in a Walter Bagehot book published in 1867 in a reference to who shapes public opinion.
The older judicial characterisations of a ‘reasonable person’ are products of their age, so they are about property-owning, middle-class men. Those, however, used to be qualifications needed for many things, like voting and being on a jury. In 1933, Lord Justice Greer said the personification of reasonableness was “the man who takes the magazines at home, and in the evenings pushes the lawn mower in his shirt sleeves.”
Today’s multicultural democracy is a more civilised society, less burdened with bigotry. Reasonableness lives equally in a thousand different lifestyles. So it is more difficult today to finish the sentence that begins “a reasonable person is someone who…” In the word “reasonableness” is distilled the essence of society’s core values at any given time. Reasonableness also changes its shade of meaning over time. So, what amounts to “reasonable chastisement” of a child has progressed from a time when this included beating him or her senseless with a rod.
Reasonableness can’t be defined by reference to any given set of values or beliefs. One key feature of it is a certain open-mindedness. But not too open. As Groucho Marx observed “Now there’s a man with an open mind – you can feel the breeze from here!”
Prof Gary Slapper is Global Professor at New York University, and Director of NYU London, and Door Tenant at 36 Bedford Row, the Chambers of Frances Oldham QC He is a columnist in The Times law section.
