The recent death of Harper Lee propels me to share some thoughts about her famous fictional lawyer, Atticus Finch, in the context of that insistent legal fiction, the reasonable person of the law reports.
Notoriously and deliberately, the RP is “an excellent if odious creature.” Setting the standard we must strive for to avoid negligence or other unlawfulness, he is of our world if woodenly complacent, imperfect but somehow always doing the right thing. While a classic standard-bearer, he is no Archimedes, so deep in ingenious mathematical reverie that he fails to notice that he is about to be slaughtered by the Romans as they take Syracuse. Rather, he “invariably looks where he is going … [and] neither star-gazes nor is lost in meditation when approaching trap-doors or the margin of a dock.” He is the man on the Clapham omnibus (where he prudently pays the exact fare with all available discounts), but never boards it while it “is in motion,” and even “will inform himself of the history and habits of a dog before administering a caress.”(2)
As standards of reasonableness go, this is a dated and in some ways sorry compromise – cautious, even fearful, but not genuinely excellent.(3) What is legally reasonable does not reflect the relative level of technological and material advancement in the “developed” world, nor the cultural diversity of modern western societies. While more people than ever might be able to read and type, signs of cultural literacy and progress toward comprehensive justice seem commensurately depressed. (Consider the Donald Trump and gun culture phenomena of today’s United States. To paraphrase the novelist Peter DeVries, the fact that so many people can read and write seems the major cause of mass illiteracy.) The really reasonable person, in other words, is arguably an old granola who walks as lightly as possible across the earth singing “Give Peace a Chance” – a new and improved throwback who looks both hindwards and ahead, a nostalgic paradox. Rather than ride the Clapham omnibus to the office (as the old legal characterization has it), or even an electric “smart car,” she probably commutes on a recycled comfort bike and brings her own vegan sandwiches on multi-grain bread, with an organic apple for dessert. She is, in other words, Eve-like, empathetic (if not all that more sympathetic than her law report iteration) but no luddite (Google and LinkedIn are her friends), deliberate and caring like the Eve we see in Paradise Lost, an inquisitive, conscientious neighbour, a phrase I deliberately adopt from the neighbour principle of negligence law, whereby the reasonable person is commanded to follow the community-minded principles of Mosaic law, and more particularly the compassionate behaviour of the Jesus’s Samaritan on the road to Jericho.(4) Were it not for the religious connotation, she would be a tzadik, a word deriving from the Hebrew tzedek for “justice,” to describe those who are righteous and reflexively charitable (“charity,” tzedaka, recall, itself derives from tzedek). The pastoral meets advanced civilization, each complementing the other.
If we can fly to the moon and Mars, not to mention to France in three hours, eradicate polio, and invent smartphones, the old Clapham-omnibus standard insults our potential, asking too little of us in our social life and our personhood. It never transcends the material. In civil law we have moved far beyond mere property interests, with a growing concentration on individual interests, and in the arena of constitutional law, we are impelled into pluralism. A new legal fiction, with more demanding standards of duty and reasonableness, seems necessary, a new, improved reasonable person as our empathic, engaged inspiration and standard-bearer for perfected justice. Like the reasonable man or “good mother of the family,” she still “takes the magazines” and newspapers “at home” (or at least reads them on-line, and “in the evenings pushes the lawnmower in [her] shirtsleeves”(5), but she also reads the books and blog postings, and occasionally listens to public radio – while admitting that for large swaths of parkland a petroleum-powered mower is more reasonable than human-powered, albeit bio-fuelled groundskeeping would be best.
There is precedent for such evolution, after all; until the reasonable man became a person, “at Common Law a reasonable woman [did] not exist.”(6)
Though this might sound facetious, it is about as serious as we can get. More fundamentalist and demanding yet simultaneously more liberal than the reasonable person of the law reports, the really reasonable person is a practical idealist with a keen but not overweening sense of social duty, the neighbour who never, or at least very rarely, says never. While she inculcates the highest achievements of our civilization, she is no magnate or political leader, but, rather, she is that imperfect, ordinary person of sound judgment and sense whom we seek to emulate. (She is too sensible to be a captain of industry or prime minister.) Obliviously, she seeks to bridge the gap between law and justice. While she perhaps does not ride a bike everywhere and perhaps finds organic too dear (except when it’s on special), she resists, or even breaks, an unjust law.
In an interview about halfway through his second term, Barak Obama sounded very like such a conscientious neighbor:
I have strengths and I have weaknesses, like every president, like every person. I do think one of my strengths is temperament. I am comfortable with complexity, and I think I’m pretty good at keeping my moral compass while recognizing that I am a product of original sin.(7) And every morning and every night I’m taking measure of my actions against the options and possibilities available to me, understanding that there are going to be mistakes that I make and my team makes and that America makes; understanding that there are going to be limits to the good we can do and the bad that we can prevent, and that there’s going to be tragedy out there and, by occupying this office, I am part of that tragedy occasionally, but that if I am doing my very best and basing my decisions on the core values and ideals that I was brought up with and that I think are pretty consistent with those of most Americans, that at the end of the day things will be better rather than worse. …
And we’re on this planet a pretty short time, so that we cannot remake the world entirely during this little stretch we have. But I think our decisions matter. … [A]t the end of the day we’re part of a long-running story. We just try to get our paragraph right.(8)
Were Obama not the president of the United States, by this description he would make an excellent objective correlative for our new legal fiction, perhaps in tandem with his wife, Michelle, to complete the yin and yang of the business – Barack and Michele a few years after law school, say.
What does Atticus Finch, the compassionate lawyer of To Kill a Mockingbird, have to do with this? At first blush I imagined that he could serve as the modern exemplar of this new reasonable person, a fictional compassionate man as improved legal fiction. And while I think that it is simplistic, and perhaps grievance mongering, to use Harper Lee’s death as an occasion to complain that Finch’s popularity is another imposition of a “white viewpoint” on racism, Finch is a conscientious neighbour of his time and town (an evolving, reasonable sensibility, which is precisely the point of Mockingbird), not the conscientious neighbour of the 2016 global village. If we mean to be modern as we jet around the planet, we need to be at least as interested in empathy as we are in technology, sport, and entertainment. If we mean to be civilized, our enthusiasm for evolved justice must outstrip our enthusiasm for the material.
(1) These ideas grow out of my work on justice as nostalgia – see the Justice page
(2) A.P. Herbert, “Fardel v. Potts,” Uncommon Law (London: Methuen, 1935) 1 at 3.
(3) Jeffrey Miller, The Structures of Law and Literature (Monreal: McGill-Queen’s U. Press, 2013) at 165-72 and passim, where the typology and standard are discussed in greater length.
(4) Ibid. at 65-114.
(5) Stansbie v. Troman  L.J.N.C.C.R., 137.
(6) Robert Megarry, Miscellany-at-Law (London: Stevens & Sons, 1955), at 261.
(7) As Obama is demonstratively Christian, we cannot assume that he means this metaphorically, but for our purposes we shall.
(8) The New Yorker, Jan. 27, 2014, 40-61 at 61. The interviewer is the magazine’s editor-in-chief, David Remnick.
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