Some kind of plastic I can wrap around you… And the Man on the Clapham Omnibus

Okay, I haven’t updated this in a while because I’ve been fairly solidly buried in work, study, and play.  I am procrastinating and, thus, we get an update.

There is a legal principle in common law systems that people — generally and normally — behave reasonably.  The idea is that every person is rational — or ought to be rational — and that they behave in a generally rational way.  Those people include legislators and, when they write up statutes, it’s presumed that they did so in a reasonable way.  Those people also include parties to contracts and, when they form contracts, it’s presumed that they did so in a reasonable way.  Those people also include people who are criminals and, when they perform some criminal acts (the ones involving mens rea), it is presumed that they knew that they were performing some act which a rational person would condemn.

It’s called the objective test and it posits some hypothetical person — ‘the man on the Clapham omnibus/Bondi tram’ — and asks ‘What would he think?’

What’s curious about this reasonable person is that he is invariably white, male, and educated.  This is due to a wonderful feature of our thinking called ‘normativity’.  It’s where we consider the default — ‘normal’ — position to be that which is most dominant in our social framework.  In common law countries, this is invariably white guys.  So the default perspective is that of a member of the hegemony.

In a lot of cases, this doesn’t cause too much hassle.  It’s not unreasonable to think that in the vast majority of instances, what I consider reasonable and what a member of a minority considers reasonable will overlap considerably.  But what about instances where they don’t overlap?

Consider one of the historically interesting aspects of contract law: consensus ad idem.  Literally, ‘agreement about the same’.  It’s often parsed as the bit of a contract which involves a meeting of the minds.  The idea is that a contract is formed by voluntarily agreeing to be bound by a promise.

If it later seems that there’s disagreement about the terms of a contract, instead of extending consensus ad idem to its logical conclusion — that there was no consensus because there is clearly disagreement — Australian courts appeal to the man on the Bondi tram to explain what the terms mean.  No longer is the contract a voluntary assumption of responsibility, but it’s an obligation placed upon you by acting in a way which an hypothetical third person would interpret contract-forming.

And that’s weird.

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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