R. v. Jones (1703): The Origins of the 'Reasonable Person'

Phil Handler, Henry Mares, and Ian Williams (eds.), Landmark Cases in Criminal Law (Oxford: Hart, 2017), 59-79

29 Pages Posted: 10 Sep 2015 Last revised: 1 Nov 2017

See all articles by Simon Stern

Simon Stern

University of Toronto - Faculty of Law

Date Written: September 7, 2015

Abstract

Although the origins of the “reasonable person” standard are usually traced to the 1837 tort case of Vaughan v. Menlove, eighteenth-century jurisprudence offers various examples of a personified, objective standard. This paper focuses on an early version of this standard, in a 1703 fraud case, R. v. Jones, which uses the “person of an ordinary capacity” to draw the line between civil and criminal liability. The discussion examines how this standard was transformed in the course of the eighteenth century; considers the blend of normative and descriptive features that were already driving the standard at this time; and seeks to explain what is significant about the personified form of the standard, such that it fits some areas of criminal law, such as duress and provocation, better than others, such as fraud. Although fraud would ultimately prove to be an inhospitable area for the use of this standard, R. v. Jones provided a vehicle for its circulation, so that it might eventually take root elsewhere. In the course of the discussion, I show how William Hawkins’s treatise on criminal law reformulated the standard in terms that are far more familiar to modern eyes (“a man of common prudence and caution”), and I discuss some of the early nineteenth-century American jurisprudence, which would have made the application of the standard a question for the jury.

Keywords: reasonable person, objective standards, criminal law, fraud, legal history

JEL Classification: K14

Suggested Citation

Stern, Simon, R. v. Jones (1703): The Origins of the 'Reasonable Person' (September 7, 2015). Phil Handler, Henry Mares, and Ian Williams (eds.), Landmark Cases in Criminal Law (Oxford: Hart, 2017), 59-79. Available at SSRN: https://ssrn.com/abstract=2657309

Simon Stern (Contact Author)

University of Toronto - Faculty of Law ( email )

78 Queen's Park
Toronto, Ontario M5S 2C5
Canada

HOME PAGE: http://www.law.utoronto.ca/faculty-staff/full-time-faculty/simon-stern

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