Simon Stern (University of Toronto – Faculty of Law) has posted The Reasonable Person as a Narrative Device on SSRN. Here is the abstract:
One question about the “reasonable person” standard, rarely asked by legal theorists and historians, is why the standard is personified and how a personification lands differently from an abstract version. I have begun to explore that question in other work and turn here to the question of how the personification first emerged, around the middle of the nineteenth century. I show how it solved a syntactic and conceptual problem, the problem of specifying the agent of “foreseeability” in tort. The problem would be specified in narratological studies as one of focalization, the taking of a particular narrative perspective. To understand how the “reasonable man” (as it then was) first served as a focalizer is to recognize a set of truly narrative functions that the figure solves. Examination of these functions takes us beyond truisms such as that “every case tells a story,” and allows us to see how, once a person has been posited as the foreseeing agent, other aspects such as proximity, probability, and due care (prudence) fall into place, constellated around this figure.
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