Reasonableness and Proportionality

The law of England and Wales developed a concept of reasonableness; the law is usually blind to the sex of people and the phrase “the reasonable man” has a better ring to it than “the reasonable person”. In any event, the Interpretation Act deemed men women and vice versa for the purposes of statute law. Having developed a concept of the reasonable man, much of law turned on what a reasonable man would do or think or how a reasonable man would react.

A reasonable man, for some reason, was to be found on the Clapham Omnibus (unlike most judges who had to decide what a reasonable man would do, for the reasonable man was never called to give evidence. The actions of this hypothetical passenger were decided and described usually by very old judges, educated at public schools and Oxbridge, and drawn from the classes of people who rarely travelled on omnibuses especially in Clapham.

For all that narrowness of judicial education, the concept of reasonableness and of the reasonable men worked well in English law for many generations. However politicians like to change things in the mistaken belief that change is progress and progress is good. One of the changes in law that have crept in over the past generation is that the concept of reasonableness and of the reasonable man has been replaced in many cases by a concept of proportionality, the word and concept in legal usage having been imported from civil law countries.

English law is founded upon the common law; the common law is founded upon custom and usage. In this sense the common law is merely a judicial finding of what most people in that jurisdiction regard as reasonable and accepted. Fashions in what is reasonable do change. Take, for example the law about self defence. If you are attacked you can use reasonable force to defend yourself. The concept of what is reasonable force seems to have changed, so that giving your attacker a good hiding might well have been regarded as reasonable fifty years ago but today might be regarded as unreasonable.

The concept of proportionality is imported from civil law countries. Civil law is simply codified common law, usually based upon the Code Napoleon. Once a law is codified it changes in its essence, sometimes according to the political requirements of the codifiers. Proportionality is a civil law concept imported into English law.  It has its origins in German law, more than a hundred years ago. It does not need a reasonable man riding the Clapham Omnibus but lays down more detailed reasoning, and for that, I think, our law is the poorer.

I think that many use reasonableness and proportionality as meaning the same thing. The concept of proportionality has a valuable place in deciding whether laws, rules and regulations are lawful. In much of European Union law and in the laws of its member states a regulation must be proportionate to the harm intended to prevent and balance competing interests. Making laws that are disproportionate should not be allowed as they comprise unnecessary infringements on the liberty of the individual.

However applying the concept of proportionality to actions of people rather than to laws seems to be to try to create a strict test for things where there should be a more general judgement of reasonableness.

If I have to be judged in a dispute I would much rather have my fate decided by a judge who imagines what a hypothetical person sitting on top of the Clapham Omnibus would do than put my fate to the mercies of concepts of proportionality; sometimes reasonable men act in a ways that are both reasonable and disproportionate and the world is usually a better place for it.

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