In every courtroom in which I’ve appeared over the past 30+ years there is a closet-size room at the front, usually behind where the court clerk sits, which is kept locked. Only the clerks and court deputies have keys. It’s where the clerks keep evidence when the court is in recess from an on-going proceeding.
But there is something else kept there, symbolically, as well. It’s an entity known to every lawyer and judge — traditionally called the “reasonable man” (now “reasonable person”) who has been explained this way:
“The reasonable [person] connotes a person whose notions and standards of behaviour and responsibility correspond with those generally obtained among ordinary people in our society at the present time, who does not allow emotions to overbear reason and whose habits are moderate and whose disposition is equable. Not necessarily the same as the average [person] – a term which implies an amalgamation of counter-balancing extremes.” (Salmond on the Law of Torts, 17th Ed, 1977)
“Reasonable” is a guideline to determine if someone acted in accordance with what society finds acceptable. For example, it’s what a jury might use to decide who is at fault in a traffic accident; or if an accused acted in self-defense and therefore is not guilty of a criminal charge.
Using a mythical entity to embody the objective, unemotional, standard of acceptable behavior is a concept described by moral philosopher Adam Smith (1723-1790) as an “impartial spectator”. Each individual living in a community must sublimate their subjective (selfish) interests to maintain peace and stability among its members — and the hypothetical “spectator” (who has no selfish interests) represents the agreed-to objective community standard.
The term “reasonable” appears throughout the law. For example, the Fourth Amendment to the United States Constitution provides, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”. That means “reasonable” searches and seizures are permissible.
There is an entire body of law explaining which searches and seizures are, and are not, “reasonable” — beginning with the premise that any search and seizure conducted without a “warrant” is presumptively “unreasonable” because of the additional language of the Fourth Amendment which states, “[A]nd no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” A search based on a warrant, properly issued by a “neutral and detached magistrate”, is presumptively “reasonable”.
(There are exceptions. Searches without a warrant can be reasonable, and searches with one can be unreasonable. Distinguishing which are which can be a lucrative legal specialty.)
In the context of when the government may legally enter and search a “persons houses, papers, and effects”, a “neutral and detached “ magistrate is the embodiment of Adam Smith’s “impartial spectator”. The best explanation I’ve read for why the government must obtain the approval of an “neutral and detached” magistrate before conducting a search or seizure was provided in 1948 by Justice Robert Jackson of the United States Supreme Court when he wrote,
“The point of the Fourth Amendment, which is often not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.”
Jackson repeatedly refers to the “reasonable” standard of determining legal validity – and that what’s reasonable must be decided by an “impartial spectator” in the person of a “neutral and detached” magistrate rather than those with an “often competitive” self interest.
‘Reasonable’ is also used to describe the standard of proof the government must meet for an accused to be convicted of a crime – beyond a ‘reasonable doubt’. What does that mean?
A Massachusetts judge explained it this way in 1850: “Reasonable doubt … is a term often used, probably pretty well understood, but not easily defined. It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt.” (Commonwealth v Webster 59 Mass 295, 320.)
That judge’s explanation is similar to the standard juries here in Florida are instructed to follow in deciding guilt, “ A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt.”
Just because something is possible; can be speculated or imagined; or you have to force yourself to believe, does not make it “reasonable”. It’s possible the moon landing didn’t really happen, and you can speculate or imaging that it didn’t, you can even force yourself to believe it was faked — but it ain’t reasonable to do so.
(In my experience, most criminal defense attorneys try to persuade jurors to force themselves to speculate and imagine there is a possible explanation for the evidence other than guilt. They try to get jurors not to believe their own eyes, ears — and common sense!)
In Florida (and some other States) jurors are also told to use their “common sense” to decide guilt. That is consistent with a criminal law textbook that talks about the historic difficulty of defining ‘reasonable doubt’ — and suggesting, “A simple solution would be to refrain from explaining it, relying on the common sense of the jury.” (Williams, Criminal Law, 2nd Ed, 1961)
So it appears that “reasonable” and “common sense” may be analogous.
But where did the concept of “reasonable” originate in our legal system? In the “Age of Reason” of course — or so it seems.
There is a legal definition of ‘age of reason’ which refers to when a person is old enough to distinguish right from wrong — but that’s not what I’m referring to. I’m talking about the historical era referred to as the “Age of Reason” — defined by Pulitzer winning historians Will and Ariel Durant as roughly from the beginning of the reign of Queen Elizabeth I (1558) to French revolution (1789). It is characterized by the questioning (and rejection) of superstition and religious explanations for how the world works.
As Durant writes, “[T]he expansion of commerce and industry were compelling the development of science. [Past beliefs] hardly harmonized with the swelling economy; the demand grew for a mental procedure that would deal with facts and quantities as well as with theories and ideas”.
“Scientific” analysis of empirical evidence based on observation, unobstructed by Medieval dogma, emerged.
English lawyer Sir Francis Bacon (1561-1626) became an icon (though a personally flawed one) of that “Age” with his writings in pursuit of a “more perfect use of human reason”. Sounds impressive, but it begs the question — what exactly does “reason” mean.
John Locke (1632-1704), and English physician more well known as one of the greatest thinkers of the “Age” (considered by some the inspiration for Thomas Jefferson’s thoughts in the Declaration of Independence) explained ‘reason’ as, “true and clear principles” and “clear and fair deduction” — meaning both an objective standard (noun) upon which to act, and at the same time a process (verb) by which to reach that standard.
In 1956, Webster’s Unabridged Dictionary of the English Language defined reason as, “The highest faculty of the human mind … which enables him to contemplate things …to weigh all that can be said or thought for and against them, and hence to draw conclusion and to act accordingly.”
So when a judge, or jury, must decide if what occurred was “reasonable” the “reasonable person” — the symbolic repository of human wisdom — is brought out of the closet behind the clerk and consulted.
Or at least, has been up until now.
How soon before the “reasonable person” — the “highest faculty of the human mind”, of human life experience — is replaced by AI ?
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.