The Reasonable Man
July 21, 2012Posted by on
The English law, in judging of men’s behaviour whether it is right or wrong, refers it to an ideal, but not to a very lofty one.
Sir Francis Taylor Piggott (1852-1925) – Two Chapters In The Law Of Torts (1898)
Sir Francis Taylor Piggott (Of the Middle Temple, Barrister-At-Law, Procureur And Advocate-General, Mauritius; Late Legal Advisor To the Japanese Cabinet) recorded in his book – Two Chapters In The Law Of Torts – an address that he had made to members of the Japanese Cabinet Office, in which he presented the philosophy of ‘The Reasonable Man’ and its significance in English Common Law. The following is an abstract from his opening address:
“I could do nothing which should in the slightest degree incite the principes and sapientes of this Eastern Kingdom to follow the example of the British legislator who makes of the path of duty a labyrinth wherein not even the wariest can walk with safety. I trust that the Japanese lawyers will never have this means furnished to them for growing rich. And to this end I shall talk to you about a most interesting person who is the creation of that law and who probably is not altogether unfamiliar to you : he is called the reasonable man. His character, however, is not yet fully developed : but the Courts are busy the year through, the long summer days excepted, in perfecting it. Not a day passes but some fresh quality is added to, or some fresh example is given of his already delightful character.
Who and what is he ? He is a man only of average intellect and intelligence, and not transcendently wise. He is very human : his wisdom is only of the common worldly sort ; he cannot foresee the unexpected ; though he learns from past experience, he is not one of whom we say contemptuously he is wise after the event ; acting circumspectly himself, he is not extreme with his neighbours, requiring them to be more than careful ; he begs them only to act circumspectly too ; he is most particular not to do harm to his fellows deliberately ; and when he does injure them we cannot blame him, for we know that it must have been from sheer necessity, or that it was unintentional and that things could scarcely have happened otherwise. Indeed, he will often avoid causing people trouble which after all every one would have said had served them right”.
In his book, Sir Francis Taylor Piggott elaborates at some length on his description of a reasonable man and includes many examples of what is to be expected of the reasonable man in relation to the law. A century after Sir Francis Taylor Piggott addressed the Japanese Cabinet, the philosophy of the reasonable man barely survived in the Civil Service that I was a member of. Its decline being coincident with the rise of the professional politician, who, for the most part, is a qualified lawyer self assured in the knowledge that he is a reasonable man. The professional politician not qualified in Law, knew himself to be a reasonable man at that pentecostal moment an electorate of reasonable men chose him to represent them. This new breed of professional politicians rejecting the dictum; sapientes principes sapientum congressu. Nevertheless, the philosophy of ‘The Reasonable Man’, often taken to be synonymous with the term ‘The Man on the Clapham Omnibus‘, survives in English Common (Tort) Law. Yet interpretations of English Common Law regarding the attributes of the reasonable man are not without consequences in Tort, as was shown by the The Court of Appeal ruling in the case of Fardell v. Potts.
In this case the appellant (Mrs. Fardell – a woman) whilst navigating a motor-launch on the River Thames, collided with the respondent (Mr Potts – a man) who was navigating a punt on the river. As a result of the collisions, the respondent was immersed and caught cold. The respondent brought an action for damages, in which it was alleged that the collision and subsequent immersion were caused by the negligent navigation of the appellant. In the Lower Court the judge decided that there was evidence on which the jury might find that the defendant had not taken reasonable care, and, being of that opinion, very properly left to the jury the question whether in fact she had failed to use reasonable care or not.
The jury found for the plaintiff and awarded him damages. A verdict that the appellant was now asking be set aside on the ground of misdirection by the judge in the Lower Court. The contention being that the case should never have been allowed to go to the Jury. The following is an abridged version of the contention made on behalf of the appellant, which interprets English Common Law as demanded by the application of the philosophy of ‘The Reasonable Man’:
The Common Law of England has been laboriously built about a mythical figure-the figure of ‘The Reasonable Man’. He is an ideal, a standard, the embodiment of all those qualities which are demanded of the good citizen. No matter what may be the particular department of human life which falls to be considered in Courts, sooner or later the question arises: Was this or was it not the conduct of a reasonable man?
It being impossible to travel anywhere or to travel for long in that confusing forest of learned judgments which constitutes the Common Law of England without encountering the Reasonable Man. He is at every turn, an ever-present help in time of trouble, and his apparitions mark the road to equity and right. There has never been a problem, however difficult, which judges have not in the end been able to resolve by asking themselves the simple question, ‘Was this or was it not the conduct of a reasonable man?’ and leaving that question to be answered by the jury.
In all that mass of authorities which bears upon this branch of the law there is no single mention of a reasonable woman.
Such an omission, extending over a century and more of judicial pronouncements, must be something more than a coincidence; that among the innumerable tributes to the reasonable man there might be expected at least some passing reference to a reasonable person of the opposite sex; that no such reference is found, for the simple reason that no such being is contemplated by the law; that legally at least there is no reasonable woman, and that therefore the judge should have directed the jury that, while there was evidence on which they might find that the defendant had not come up to the standard required of a reasonable man, her conduct was only what was to be expected of a woman, as such.
The Court of Appeal found that at Common Law a reasonable woman does not exist therefore the appeal was allowed.
On an even lighter note, there is a Greek myth about Pygmalion who was a king of the island of Cyprus and a regal chiseller. Having spent many years carving an ivory statue of a woman more beautiful than any living female, he became so fascinated by his creation that he fell in love with it. This myth provided the inspiration for George Bernard Shaw in the writing of the play Pygmalion. The concept of Shaw’s play was in turn taken by Lerner and Loewe and made into a musical called My Fair Lady, which, in its turn, was adapted as a film. If he were alive today, Sir Francis Taylor Piggott would endorse Rex Harrison – who played the part of Professor Henry Higgins (Pygmalion) in the film adaptation of Lerner and Loewe’s adaptation of Shaw’s adaptation of Pygmalion – delivering the denouement to ‘The Reasonable Man’: