I’ve been thinking about these issues in another context, so I decided to salvage this post from my old blog so I could reference it. Originally written March 23, 2004, with edits for clarity today.
There’s a concept in the law known as the “reasonable man.” It’s used as a benchmark to compare the behavior in question with the behavior a reasonable person similarly situated would be reasonably expected to exhibit. It’s often criticized as an elusive standard, because no person ever could attain such consistently normalized behavior. All people, even the most conventional, predictable, and rational, stray into their own eccentricities from time to time, which isn’t itself necessarily unreasonable. Furthermore, reasonable behavior often derives its inherent reasonableness from context. Lighting a match may be reasonable in a dark cave; not so in a dynamite factory. Yet judging a behavior according to the reasonable man standard may not always capture contextual nuance so well.
Still, it can provide some guidance when courts are trying to decide if a person acted in a way unique to himself, or in a manner that other people might have reasonably behaved. In torts cases this test is extremely important, particularly in cases of negligence. Is it reasonable, for instance, to presume that a person who knew there were vicious, hungry dogs in the yard would have double-checked that the gate was locked? If yes, then why didn’t this one?
The U.S. Supreme Court just heard a case, Hiibel v. Sixth Judicial District Court, involving a man who was arrested in Nevada for refusing to give his name when asked by the police. In this case the State conceded that the police hadn’t had probable cause, a high level of suspicion he was guilty of a crime, to justify arresting the man when they first came upon him and asked him his name. They only had “reasonable suspicion.” The Court was asked to decide whether this was enough to entitle them to ask him his name, with him being required to answer under penalty of law.
Ultimately this case could turn, at least in part, on how plausible a suspicion of an actual crime the police needed to justify the demand for a name. But what caught my eye in the New York Times report about the oral arguments was a comment made by Justice Scalia. On being asked to identify oneself, he said, “I would think any reasonable citizen would answer.”
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