Wednesday, September 16, 2015

Stern on the Origins of the "Reasonable Person"

Simon Stern, University of Toronto Faculty of Law, has posted R. v. Jones (1703): The Origins of the "Reasonable Person," which is to appear in Landmark Cases in Criminal Law, ed. Ian Williams, Phil Handler, and Henry Mares (Oxford: Hart, 2016):
Although the origins of the “reasonable person” standard are usually traced to the 1837 tort case of Vaughan v. Menlove, eighteenth-century jurisprudence offers various examples of a personified, objective standard. This paper focuses on an early version of this standard, in a 1703 fraud case, R. v. Jones, which uses the “person of an ordinary capacity” to draw the line between civil and criminal liability. The discussion examines how this standard was transformed in the course of the eighteenth century; considers the blend of normative and descriptive features that were already driving the standard at this time; and seeks to explain what is significant about the personified form of the standard, such that it fits some areas of criminal law, such as duress and provocation, better than others, such as fraud. Although fraud would ultimately prove to be an inhospitable area for the use of this standard, R. v. Jones provided a vehicle for its circulation, so that it might eventually take root elsewhere. In the course of the discussion, I show how William Hawkins’s treatise on criminal law reformulated the standard in terms that are far more familiar to modern eyes (“a man of common prudence and caution”), and I discuss some of the early nineteenth-century American jurisprudence, which would have made the application of the standard a question for the jury.