By Brónach Rafferty
Brónach Rafferty is a third-year law student at Trinity College in Dublin, Ireland.
I believe that reasonableness as it currently exists in law is a fallacy.
‘Fallacy’ is defined as a mistaken belief based on unsound arguments. Such ‘unsound arguments,’ which form the unstable foundations upon which uncertain beliefs as to what reasonableness is, are evident throughout both case law and legal literature. Reasonableness is invoked throughout as an answer to many things. However, there is little discussion given as to what is meant by reasonableness. From where does reasonableness come from, and what does it mean? Is this ‘reasonableness’ open to everyone, does everyone feel that it is open to them, that it grounds them? And if so, then why not have just one law: be reasonable? The law purports to exist as a means to regulate society. Therefore, if it is clear what the law requires, then why do we need reasonableness?
In Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1], Lord Green held that, for the court to decide what is meant by reasonableness, it must first decide what is a reasonable decision maker and what decision that reasonable decision maker would take. However, it is ‘the court’ which ultimately defines what is meant by reasonableness through their interpretation as to what the ‘reasonable man’ is. Reasonableness is held to be that which the court says it is, and what the court decrees to be reasonable is that which is reasonable. There is a fallacy in this circular logic which renders reasonableness vague and problematic.
Brónach Rafferty is a third-year law student at Trinity College in Dublin, Ireland.
I believe that reasonableness as it currently exists in law is a fallacy.
‘Fallacy’ is defined as a mistaken belief based on unsound arguments. Such ‘unsound arguments,’ which form the unstable foundations upon which uncertain beliefs as to what reasonableness is, are evident throughout both case law and legal literature. Reasonableness is invoked throughout as an answer to many things. However, there is little discussion given as to what is meant by reasonableness. From where does reasonableness come from, and what does it mean? Is this ‘reasonableness’ open to everyone, does everyone feel that it is open to them, that it grounds them? And if so, then why not have just one law: be reasonable? The law purports to exist as a means to regulate society. Therefore, if it is clear what the law requires, then why do we need reasonableness?
In Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1], Lord Green held that, for the court to decide what is meant by reasonableness, it must first decide what is a reasonable decision maker and what decision that reasonable decision maker would take. However, it is ‘the court’ which ultimately defines what is meant by reasonableness through their interpretation as to what the ‘reasonable man’ is. Reasonableness is held to be that which the court says it is, and what the court decrees to be reasonable is that which is reasonable. There is a fallacy in this circular logic which renders reasonableness vague and problematic.
Oliver Wendell Holmes Jr., a former Supreme Court justice, maintained that, “The life of the law has not been logic, but experience.” [2] Therefore, one might surmise that the reasonable man as exists in law is not a manifestation of reasonableness as envisaged by the average person, but simply a construct based upon the values and experience of the judiciary. In their acceptance of their own authority to depict that which is the reasonable man, could it not be argued that perhaps an ‘unreasonable’ man is one in society who lack the same ‘experience’ as the courts?
For legal theorist Stanley Fish, “any judge in the course of his training will develop into a working conception of the law, which he will be.” [3] That is, the judge is the law, and the law is the judge. Judges, however, come from a very specific background; an elite group of white, privately educated, mostly male lawyers of a certain age and political background. Their experience of life that has moulded the law, and hence that which exists as reasonableness within the law, is not reflective of the average person.
Reasonableness is a fallacy in that it is held to be an objective test. However, it would seem to be subjective in that it is based very much upon the internalised values and practices of the bar, which ensures conformity in judicial thought and propagates particular beliefs. [4] The reasonable man is a product of the judiciary , imbued with values of that respective community. The interpretive communities to which we belong are inescapable and unknowing. They are our inheritance into which we are indoctrinated. We choose to hear things as being reasonable as opposed to their actually being reasonable in and of themselves, a perception bolstered by Fish in his opinion that ‘the state of the culture, of what it will hear as reasonable (not the force of reason itself) bars [certain outcomes].’[5]
Thus, perhaps it could be argued that it is not reason (through the application of the reasonable man test) that is the method by which a decision is come to, but that which is simply believed to be reasonable as under the interpretation of the judiciary.
Therein lies the implication that there exists with law reasonableness, but it is a judicial interpretation of reasonableness. Therefore, is it possible to say that this reasonableness as illustrated by the reasonable man is accessible to those who do not operate with a working knowledge of the judiciary? Furthermore, might there be a discrepancy between that which is held to be reasonable, and that which the average individual perceives to be reasonable? After all, no one ever thinks that they themselves are unreasonable in that which they do.
In addition, reasonableness in always being spoken of in relation to the reasonable man, exemplifying the patriarchal foundations upon which law is based. Why is reasonableness not discussed in relation to the reasonable woman in cases involving such, or again still, through the interpretation of the reasonable person. Perhaps from this perspective of gender, there is a fallacy of reasonableness in that maybe judges are not thinking how they ought to think.
Legal philosopher Duncan Kennedy opines that “we have to believe simultaneously in reason as transcendence and in reason as immanence...as if reason were not vulnerable and unreliable, and as if reason could therefore rule in law.” [6] This implies that despite reasonableness being invoked through law it doesn’t rule in law because it is an incorrect interpretation of reasonableness that is applied; instead, as aforementioned, it is that which is believed to be reasonable as opposed to that which actually is reasonableness, Kennedy writes, that we feel we have an obligation to be see reason as infallible; “we have to believe... in reason as transcendence.”
Why must we believe in reason as it exists in law as being transcendent? Implicitly, he suggests that what we have currently that we state to be reason and thus reasonableness and the reasonable man cannot be transcendent because it is not. If it were true reason that existed in and of itself, unburdened by the pre-existing discourse that influences us and our interpretive communities, then it would simply be as it is, transcendent and immanent in and of itself, and not needing to be justified or explained. Yet we choose to turn the other cheek, to buy into this belief of that which we call reason as being something certain and secure, despite it being not.
Our interpretation of reason is safe because it is what we claim to know. It takes on an almost talismanic power which seems to give an intellectual weight to that which perhaps is not there in practice. And therein lies the fallacy. The reasonableness that exists in law is what we are told, and what we have chosen to believe, but what one chooses to believe is not that which something is. Reason as it is in law is based on experience, it is borne from perception and influence and interpretation, which have shaped it so as to align with what it is required to do, and not that which is actually is and does of itself.
[1] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223.
[2] Constitution Society http://www.constitution.org/logic/logic_judges.htm (accessed 07.03.2016).
[3] Stanley Fish, ‘Dennis Martinez and the Uses of Theory’ (1987) 96 Yale Law Journal 1773 at 1789.
[4] David Kenny, ‘Merit, Diversity and Interpretive Communities: the (Non-Party) Politics of Judicial Appointments and Constitutional Adjudication’ in Cahilane and Hickey (eds) Judges, Politics, and the Irish Constitution (forthcoming, 2016) soft copy available at < https://www.academia.edu/8112487/Merit_diversity_and_interpretive_communities_the_non-party_politics_of_judicial_appointment> at 7.
[5] Stanley Fish, ‘Almost Pragmatism: The Jurosprudence of Richard Posner, Richard Rorty, and Ronald Dworkin,’ in There’s No Such Thing As Free Speech (Oxford University Press, 1994) at 204.
[6] Duncan Kennedy, ‘Pierre Schlag’s The Enchantment of Reason,’ University of Miami Law Review (2003) Vol. 53 Issue 3 513 at 518 and 527.
Photo Credit: Flickr User Brittany Hogan
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