Aristotle once expressed that: ‘the law is reason free from passion…’ Commentators often disagree with this premise, having argued that the law is rarely every free from passion where it is bound in politics and philosophical theories and where ‘reason’ and ‘precedent’ are often times profoundly riddled with bias. The law creates standards and requirements for defendants to satisfy as a defence in many criminal cases. One of such is in the ‘Reasonable Person’ as a legal concept emerging from 18th-century liberal and utilitarian ideas of the liberal legal subject. Reasonableness and the reasonable person standard is an important legal standard as such, evidenced in its keen role in virtually every area of law, a concept that needs to be satisfied in order to prove innocence or culpability in many cases.
According to its connotation in law, the liberal legal subject–the reasonable person– is free from subjectivity, neutral and a yardstick to achieve fairness in cases. However, many debates question the reality and universality of this free individual and how workable this ideology is in any realistic society, especially where it derives its roots from patriarchal structures. Arguments show that the reasonable person does not exemplify certain particularities individuals possess, creating multiple problems with its application and interpretation in other areas of law.
Focusing mainly on the reasonable person standard in criminal law, the aim of this research is to assess the impact and contribution of gender influence in judicial reasoning when determining reasonableness standard. This work, therefore, challenges the supposed objectivity and neutrality of this reasonable person, with an aim to expose the gendered nature of this concept and its contribution and influence on judicial reasoning. This paper thoroughly investigates the social realities of the reasonable person standard and the apparent gender bias in judicial reasoning present in the application of the standard in cases relating to the loss of control defence in criminal law. The arguments made would also be concluded as to the need for upholding legal subjectivity in cases as opposed to its supposed prima facie objectivity, with potential reforms to the law also discussed. This project is highly influenced by feminist works and jurisprudence as to the abstraction and problematic objectivity the liberal legal subject presents for women in society.
CORE (COnnecting REpositories)
CORE (COnnecting REpositories)