October Discussion Forum: Rethinking the Reasonable Person Standard Through Engagement With Indigenous Laws

Problematizing the Reasonable Person | Efrat Arbel & Anne Uteck

Canadian tort law locates the “reasonable person” test at the heart of the standard of care analysis. Building on Arland and Arland v Taylor’s famous formulation of the reasonable person as the “mythical creature of the law whose conduct is the standard by which the Courts measure the conduct of all other persons and find it to be proper or improper in the circumstances”, Canadian tort law constructs the reasonable person as a known entity, and conceives of the reasonable person standard as being both objective and universal in its application.

Critics have long questioned the value and integrity of the reasonable person standard. Mayo Moran, for example, has artfully demonstrated how the reasonable person is constructed in tort law not only to perpetuate discriminatory understandings of gender, mental capacity, and other subject positions, but also to obscure tort law’s ability to identify at-fault behaviour. Moran points to the entanglement between “reasonableness” and concepts of “normalcy” that import value judgments that are themselves reliant on specific historical positions, as well as common sense arguments that rely on assumption-based reasoning. Urging for a shift away from the “reasonable person” test, Moran makes clear the need to question – and critically engage with — the assumptions that underpin this standard.

In this post, we take up the challenge of critically engaging with the assumptions that underpin the reasonable person standard, by asking how the common law’s construction of this standard engages with Indigenous laws and legal principles. In recognizing that the common law standard of “reasonableness” forms part of, and is constructed by, the colonial system in which it is entrenched, we ask: what challenges and limitations exist in the common law’s current construction of the “reasonable person”? Whose perspectives are included or excluded? What implications flow from this? Asking these questions, we suggest, can serve as an important step in de-colonizing our thinking about Canadian tort law, and in opening up avenues through which the common law can operate both more inclusively and more effectively.


Reasoning, reasonableness, and the reasonable person in Cree Law | Hadley Friedland

Reasoning is a defining feature of law and legal thought. In engaging with the questions posed above, it is important to recognize that the Canadian common law can display both indifference to, and denigration of, Indigenous systems of reasoning. The Canadian common law has not only refused to recognize Indigenous people as peoples, but also dismissed Indigenous peoples’ collective and individual reasoning. This position – the dismissal of a people’s entire system of reasoning – is itself not reasonable, yet is defining of much of the common law’s deeply impoverished engagement with Indigenous peoples and Indigenous laws.

In approaching the question of how Cree law and Cree legal thinking would conceptualize the reasonable person standard, I draw from an overarching principle of Cree legal principle of wahkohtowin. This principle emphasizes that everything flows from relationships – and would therefore operate to situate the Cree reasonable person as consciously embedded in a web of nested, interdependent relationships. Whether these are relationships with other people, with government, with courts, with the land, with society, or otherwise, Cree law conceptualizes of those relationships informing what reasonableness and prudence entail. In this key way, Cree law challenges the common law to shift away from the mythology of independence that is central to its operation.

Thinking through the common law’s mythology of independence also directs us to consider the Cree principle of miyo-wîcihtowin, which refers to the building and creation of good relations. The imperative of good relations is an orienting principle in itself, which guides not only the understanding of reasonableness, but also the broader understandings of how legal obligations are conceptualized and exercised. This principle is absent in the Canadian tort law, which conceives of the individual as wholly independent – not bound to others through pre-existing relationships of interdependence, but rather bound to others only in the ways in which the laws prescribe. The common law has much to learn from this principle in its conception of legal obligations.


The Respectful Person in Coast Salish Laws | Sarah Morales

My work conceptualizes how Coast Salish laws and legal traditions articulate legal obligations, as well as how Coast Salish laws responds to a breach of those obligations and the loss that flows from such a breach. At its heart, Coast Salish law does not privilege reasonableness in the same way that the common law does, but instead asks what would a respectful person, attuned to their place in the same web of relationships Hadley referenced, do, think, and act? It then derives legal obligations with reference to that understanding.

Engaging in a storied methodology allows us to identify some of the key criteria that inform how a respectful person is conceptualized in Coast Salish law. Some of those criteria include, for example, the concept of humility, and the idea of knowing who you are and your place in the world. Central to this is the concept of respecting boundaries – that is, being attuned to your own limitations, acting with care towards the needs of others, and understanding Coast Salish legal principles as guiding principles for action. Implicit in all of these considerations is the Coast Salish world view, anchored in three central pillars – in our connection to ancestors, our connection to land, and our kinship connections. There is enormous nuance in this world view, which informs every aspect of our legal obligations.

If you start from the premise that someone has suffered a loss at the hands of another, and this needs to be remedied, the idea of the reasonable person standard has no place or context within the Coast Salish legal system. The concern is not about limiting liability by reference to this standard, it is rather about restitution or restoration in whatever form it takes. The focus is on the harm caused by the loss, it does not matter if that loss was caused negligently or intentionally, whether it was foreseeable, or whether the person who caused the loss acted reasonably. The focus is on respectful relations, and the task of the law is not to restore the harmed individual to their original position, but rather, to make the relationships whole. This approach reflects a different understanding not just of obligations but also of loss, and of the remedies that could be devised to make up for this loss.


Rethinking the Myth of Individualism | Gordon Christie

The starting point for me is the recognition that the reasonable person is a very particular type of instrument, constructed by a very particular kind of legal system. In recognizing this, we might ask: why does the common law conceptualize and prioritize the reasonable person in the way that it does? One way to answer this is to acknowledge that the common law is oriented in and through a very specific theory of the world, one that presupposes the individual as an independent entity. The role of the common law is to enable each individual to do what they want to do without intrusion from others. In contrast with other legal systems, the common law derives legal obligations not from relationships, but from harm – that is, it brings individuals into relation with one another only when one harms the other. The reasonable person standard then comes in both to define the legal obligation, and to contour its requirements. Said differently, Canadian tort law will generally only impose a legal obligation in situations where it determines that one individual was unreasonable in their actions towards the other. Viewed in this light, this legal approach is rather strange – in that it is centered on the myth, as Hadley noted, that people have no obligation towards one another, except for those imposed in and by the law.

There are other societies around the world who begin with the idea that when you have a society comprised of people, those people have obligations towards one another. When we perceive of the individual as embedded within a web of relationships, the questions we ask are different. Instead of asking – did one individual harm another, we might ask instead, did the individual harm the web of relationships, and what might be necessary to restore balance, stability, and integrity to that web? This is a very different way of thinking about legal obligations, which does not require the reasonable person standard in quite the same way.

Many Indigenous legal systems don’t just focus on relationships, but about good relationships -and the word “good” is very important here. The idea is that relationships need to be tended to. When a person is understood as always already embedded in a web of relationships, it becomes easier to see that that person can act as they wish, but must do so in ways that are mindful of those relationships and the obligations they bring. If one person harms another, the remedy is not just about restoring the injured party, but about fixing the web, with the understanding that the failure is not the individual’s alone, but also society’s in failing to instill that obligation in the individual.


Questions for Discussion | All

The recognition that people are situated in a web of relationships invites us to consider not just how the common law identifies obligations and their breach, but also how the common law assigns remedies for those breaches. Focusing a remedy not just on restoring the harmed individual but on restoring the web in which that individual is situated – might compel us to think not only of different legal remedies, but also different standards by which to assign those remedies. What might an alternate approach look like? In thinking through this question, we invite our audience to consider how might Indigenous laws and perspective inform the (re)construction of the reasonable person standard? In thinking this through, how might we rethink the standard of objectiveness and its utility, when considered from different world views? What is the function of remedying breaches of involuntary obligations? Do these standards help to achieve or hinder those functions? How might we draw on these different legal ideas and understandings to reason through how

I love this sentence. It is profound.

T.

Thank you all for your thought-provoking contributions. I want to share my provoked thoughts and they have grown long enough that I am going to preface them with the following orienting sentence. I begin with an observation (this paragraph), followed by a puzzle or challenge for OP’s project (next), and topped off with a dream (last). I am always intrigued by how closely the language used in describing Indigenous legal traditions parallels language used by an earlier generation of feminist legal theorists to describe their goals and projects. A canonical summation of this work is Professor Jennifer Nedelsky’s Law’s Relations. If you had told me that Professor Christie’s first paragraph was a direct quotation from ch 1 of Nedelsky’s book, I would likely have been taken in. Non-Indigenous criticism of liberal individualism is old, but within the anglo legal academy the project was most directly pursued by liberal feminists, and they specifically turned to the idea of, and often the literal phrase, “webs of relations” (used by all three contributors in OP), necessary interdependence and mutuality rather than atomic opposition. I do not mean to suggest that these ideas are all “the same”; on the contrary the similarity says something about “translation”, about what happens when you take an Indigenous concept like wahkôtowin and put it into a form that colonial anglo academics will understand. For feminists the intuition of webs of relations often came specifically from an analogy to mothering (eg Virginia Held on non-contractual society) and the ethic of care rather than from a more general worldspiritual philosophy of the sort discussed in the bundles linked by Professor Friedland (though there were certainly cross-pollinations between Indigenous and feminist movements throughout the 20th c—I suspect Nedelsky at least got the web phrase from Arendt). As will already be clear, I am speaking here from my perspective as a non-Indigenous legal academic entrenched within some of the dominant strands of social justice thinking about law.

I think that a liberal tort theorist would say, of course we are all interdependent. But, we also aspire to autonomy, and liberal legalism is not a rejection of interdependence but rather a particular negotiation of the inevitable difficulty of living in community. Tort is precisely the body of law that details the obligations we always already owe to each other – contract is where you’ll find your perfect individuals bound only in so far as they agree to be bound. I am not a liberal tort theorist and so I will leave that thought there in the hopes that one might come along—I believe there are some in this group. Aaron Mills (Waabishki Ma’iingan) has painted the conceptual oppositions here with particular clarity (see their contribution to this volume). Beautiful theories aside, we face the straightforward rhetorical need to speak legalism to convince legal actors. It’s not enough to talk about how nice it would be for contract law to start from a relational subject rather than “the hegemonic subject” (as I did some years ago). People will say that these projects are too uncertain, that they ask too much of us, that they extend state power where it shouldn’t go, that they coddle people instead of treating them like adults (special valence for mothering analogies there), and that they pose no clear lines of the sort demanded by the rule of law. I wonder whether OP’s questions face the same opposition and what we should do about it. How would you address these pushes back? My personal response (which feels inadequate) has been to attempt the hard work of turning my grand and beautiful convictions into actionable doctrinal amendments, little piece by little piece – I think a lot of good work has been done in this mode.

In contrast to this method, it seems to me that rethinking reasonableness through Indigenous perspectives has something to offer that feminist legal theory does not, and that is already-worked-out systems of (legal) relation instead of attempts to build one piecemeal out of critique. Professor Morales’ shift from the reasonable to the respectful person seems particularly fruitful here. It at the same time seems to pose the most complete rejection of tort law as we know it, making it the hardest sell (if indeed selling it to existing legal actors within their existing rhetorical institutions is a goal). It thus brings to mind directly the feminist attempts to supplant the liberal subject in law and elsewhere with a series of constructed, relational, embodied, or caring alternatives. Depending on the forms of change sought here, the hard work then lies in elaborating and specifying these alternate visions. The legal academy stands to be invaluably enriched and transformed by the kind of embedded and committed work being done by the contributors, to continue sharing comparing and translating (in all senses) within our communities. Tort theorists should pay attention to it.

Thank you all for this discussion. One question that I have is in relation to ‘respectability’. Highlighting the challenges of respectability, Yuvraj Joshi argues that “respectability is thus a system of hierarchy and domination grounded on distinctions between the respectable and the degenerate…respectability is constituted by performative acts that align one’s behaviours with social norms that are gendered white, middle-class and heterosexual.” [Yuvraj Joshi, ‘Respectable Queerness’ (2012) 43 Columbia Human Rights Law Review 349, 419]. So I wonder whether relying on respectability instead of reasonableness won’t recreate similar challenges?