Reasonable Persons, Reasonable Circumstances

Abstract

The reasonable person test is a common thread that runs through the fabric of Anglo-American law. It has become such a common trope in legal discourse that it scarcely receives much attention in its own right. In this article, I analyze one facet of the test that, I believe, will yield significant benefits in understanding the subject as a whole: how we ought to go about determining which circumstances are relevant to the reasonable person inquiry. I will argue that the circumstances that ought to be part of the test will vary based on the substantive area of law: the “reasonable person test” is in reality a series of tests that, perhaps aside from a common core, are applied separately to different areas of law. Which test is used will vary depending on whether the case is criminal, or an Establishment Clause claim, or another matter entirely; and it will vary further depending on what theory one believes animates a given field of law. By unpacking some of the details of the reasonable person test in these different fields, we will arrive at a better understanding of how the test works in practice.