Tuesday, November 22, 2022

Queering the Reasonable Person of Tort

Haim Abraham, Queering the Reasonable Person, Chapter in Diverse Voices in Tort Law (Kirsty Horsey Ed., 2023 Forthcoming)

Critical lenses, such as feminist and critical race theories, have been employed extensively to analyze the reasonable person standard theoretically and doctrinally, noting that courts and scholars personify the standards as a middle-class, white, heterosexual man. Consequently, these critical lenses have indicated that real individuals, who do not share the qualities of the personified reasonable man, become vulnerable. They are unlikely to be able to succeed in bringing claims against the people who the reasonable man represents, while they are more likely to be held to a higher standard and as such more likely to be liable.

These critiques are illuminating, but they are not particularly queer, nor do they exhaust all that queer theory can reveal about the reasonable man, and existing scholarship has yet to offer a comprehensive queer theory analysis of the reasonable person. This chapter fills this gap in literature, arguing that despite existing critiques, the reasonable person – as a legal standard – is essentially a queer standard. Yet, it is the very queer character of the reasonable person that places LGBTQ+ individuals at risk. First, past (and current) applications and personifications of the reasonable person into a white middle-class, cisgender, heteronormative individual, raises others’ standard of care while limiting the ability to hold ‘reasonable men’ liable. Second, the move from reasonable man to reasonable person, even if it signals a commitment to inclusivity, does not mean that this objective standard now has a fixed meaning. One of its core features is its ability to take on a wide-range of meanings, thus creating constant uncertainty and flux as there is a risk that that at any given moment the reasonable person will turn back to the reasonable man. The chapter concludes by examining several possible resolutions to the challenge posed by the reasonable man: changing his personification to a more inclusive one; eliminating the personification altogether; or diversifying the judicial composition, arguing that emphasis should be placed on the latter.


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