| Although the reasonable person has been the central figure in the law of negligence at least since Vaughan v. Menlove, he continues to provoke as many questions as he answers---questions that have become increasingly pressing given recent challenges to the reasonable person as inherently male, privileged and otherwise oppressive as a behavioural standard. This work addresses the defensibility of the standard in light of such challenges. The thesis begins by analysing the operation and justification of the standard in the treatment of the mentally disabled and of children, an analysis which reveals that the standard of reasonableness is deeply indebted to conceptions of what is normal or ordinary. The thesis goes on to examine the role of conceptions of the 'normal', not only for the mentally disabled but also for women and those disadvantaged on other grounds including race and class. It turns out that because of the discriminatory implications of reliance on the 'normal', the treatment of various groups under the objective standard raises profound concerns about equality and ultimately about the rule of law. The thesis then asks whether, given these difficulties, the objective standard is worth saving. Although plagued by its own contradictions, the feminist debate is invaluable here: it explicates the strengths and weaknesses of the standard and highlights constitutive tensions between equality, custom and the rule of law. And feminist analyses lead us to conclude that under certain conditions the objective standard is actually invaluable for equality-seekers. This debate also affords the most concrete illustration of how one might go about reformulating the standard to ensure that it lives up to its promise of equality. The thesis concludes that a reformulated objective standard---more attentive to normative failings, widely shared or not---is not only defensible but in fact crucial to any meaningful conception of equality. |
