Good morning.
Two concepts that have interested me for a long time are
the "average man" and the "man on the Clapham omnibus,"
a.k.a. the "reasonable man."
(Both phrases evolved in the 19th century and of course began
as "man," not "person," but that solecism has been remedied
in more recent scientific and legal literature.
I will use the 19th-century phrasing where appropriate. I trust that those who read my messages will
understand that I would not otherwise use those terms.) I want to be clear that my meanderings on
average and reasonable people doesn't really go anywhere. You may also find it a snoozer.
The
average man is the product of the work of Adolphe Quetelet, starting in 1835;
the reasonable man is a fictional person used by the courts in tort law
beginning in 1903.
In English law, the "prudent man" appeared in
1837 in Vaughan v. Menlove:
The
care taken by a prudent man has always been the rule laid down; and as to the
supposed difficulty of applying it, a jury has always been able to say,
whether, taking that rule as their guide, there has been negligence on the
occasion in question. Instead,
therefore, of saying that the liability for negligence should be co-extensive
with the judgment of each individual, which would be as variable as the length
of the foot of each individual, we ought rather to adhere to the rule which
requires in all cases a regard to caution such as a man of ordinary prudence
would observe.
In 1856 the prudent man became the reasonable man, in Blyth v. Company Proprietors of the
Birmingham Water Works.
Negligence
is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would
do, or doing something which a prudent and reasonable man would not do.
Later in the 19th century, the reasonable man
became "the man on the Clapham omnibus": "a hypothetical ordinary and reasonable
person, used by the courts in English law where it is necessary to decide
whether a party has acted as a reasonable person would. . . . The man on the Clapham omnibus is a
reasonably educated, intelligent but nondescript person, against whom the
defendant's conduct can be measured."
The phrase formally entered English law in 1903, in an opinion in which
the jurist, Sir Richard Henn Collins, in a libel case, cited a judge in an 1871
case. Lord Bowen in 1871 apparently
wrote or said that "'We must ask ourselves what the man on the Clapham
omnibus would think.' Quite why he
singled out that particular route we shall never know." A commentator on the phrase explained
Clapham:
When
it was first used, Clapham was a lower middle class (in modern terms) area of
London in commuting distance to the city (financial district) so users of the
omnibus would mainly be clerks, junior office workers, etc. So the test was actually pretty specific to
somebody who was somewhat educated, could read and write but wasn't a
professional lawyer/accountant/stockbroker.
A
lawyer/historian friend concurred. "A
nondescript commuter suburb seen to represent 'ordinary' London."
The
phrase itself is scattered through English literature beginning early in the 19th
century.
The man in the Clapham omnibus remains in English law up
to the present. In a 2014 opinion from
the Supreme Court of the United Kingdom, Justice Reed wrote that
1. The Clapham omnibus has many passengers. The most venerable is the reasonable man, who
was born during the reign of Victoria but remains in vigorous health. Amongst the other passengers are the
right-thinking member of society, familiar from the law of defamation, the
officious bystander, the reasonable parent, the reasonable landlord, and the
fair-minded and informed observer, all of whom have had season tickets for many
years.
2.
The horse-drawn bus between Knightsbridge and Clapham, which Lord Bowen is
thought to have had in mind, was real enough.
But its most famous passenger, and the others I have mentioned, are
legal fictions. They belong to an
intellectual tradition of defining a legal standard by reference to a
hypothetical person. . . .
3.
It follows from the nature of the reasonable man, as a means of describing a
standard applied by the court, that it would be misconceived for a party to
seek to lead evidence from actual passengers on the Clapham omnibus as to how
they would have acted in a given situation or what they would have foreseen, in
order to establish how the reasonable man would have acted or what he would
have foreseen. . . . The behaviour of
the reasonable man is not established by the evidence of witnesses, but by the
application of a legal standard by the court.
4.
In recent times, some additional passengers from the European Union have
boarded the Clapham omnibus. (Given the
Brexit vote, those passengers may be getting off the bus in the near future.)
Wikipedia summarizes the modern-day version of the chap
on the Clapham omnibus:
[Per
Judge Learned Hand in 1932] The reasonable person standard is by no means
democratic in its scope; it is, contrary to popular conception, intentionally
distinct from that of the "average person," who is not necessarily
guaranteed to always be reasonable. The
reasonable person will weigh all of the following factors before acting:
• the
foreseeable risk of harm his actions create versus the utility of his actions;
• the extent of the risk so created;
• the likelihood such risk will actually
cause harm to others;
• any alternatives of lesser risk, and
the costs of those alternatives.
Taking
such actions requires the reasonable person to be appropriately informed,
capable, aware of the law, and fair-minded.
Such a person might do something extraordinary in certain circumstances,
but whatever that person does or thinks, it is always reasonable.
From
A. P. Herbert (1932), "Misleading Cases in the Common Law":
He
is an ideal, a standard, the embodiment of all those qualities which we demand
of the good citizen. . . . [He]
invariably looks where he is going, . . .
is careful to examine the immediate foreground before he executes a leap
or bound; . . . neither stargazes nor is lost in meditation when approaching
trapdoors or the margins of a dock; . . . never mounts a moving [bus] and does
not alight from any car while the train is in motion, . . . uses nothing except
in moderation, and even flogs his child in meditating only on the golden mean.
English
legal scholar Percy Henry Winfield summarized much of the literature by
observing that:
[H]e
has not the courage of Achilles, the wisdom of Ulysses or the strength of
Hercules, nor has he the prophetic vision of a clairvoyant. He will not anticipate folly in all its forms
but he never puts out of consideration the teachings of experience and so will
guard against negligence of others when experience shows such negligence to be
common. He is a reasonable man but not a
perfect citizen, nor a "paragon of circumspection. . . ."
The
point of using the man on the Clapham omnibus is that "individual,
personal quirks inadvertently injuring the persons or property of others are no
less damaging than intentional acts. For
society to function, [wrote Justice Oliver Wendell Holmes] 'a certain average
of conduct, a sacrifice of individual peculiarities going beyond a certain
point, is necessary to the general welfare.'"
The
reasonable person has been called an "excellent but odious character." The reasonable person can be the reasonable
woman, the reasonable disabled person, the reasonable something, in the context
of a case. (The late Justice Scalia
dismissed the use of the reasonable woman in cases of sexual harassment, but at
least some courts have adopted it.)
I could be a man on the Clapham omnibus, certainly! I don't want to be considered odious,
although I otherwise qualify because I don't have Achilles' courage, Ulysses'
strength, nor am I clairvoyant. I can't
tell to what extent I might be a "paragon of introspection." Probably more than is healthy.
Let me turn now to the "average man." The true "average person" must be
bi-gendered, inasmuch as we need to "average" men and women together
to get the "average" human being.
Or perhaps, in the term now being used, "non-binary." (http://gender.wikia.com/wiki/Bigender: "Bigender is a gender identity which can
be literally translated as 'two genders' or 'double gender'. Bigender people experience exactly two gender
identities, either simultaneously or varying between the two. These two gender identities could be male and
female but could also include non-binary identities.")
As I noted earlier, the idea of the
average man was first articulated by Adolphe Quetelet in 1835 ("l'homme moyen"). This guy was clearly a "Renaissance man,"
a doctorate in mathematics, he produced original and noteworthy work in
multiple fields (including "meteorology, astronomy, mathematics,
statistics, demography, sociology, criminology and history of science");
he was also an artist and a musician.
Most of us would know him through the body-mass index, which he
developed (originally the "Quetelet Index," it was given the name
body mass index by Ancel Keyes, a world-famous University of Minnesota
physiologist). Quetelet was, however,
primarily a statistician—after he realized he could bring the methods of
astronomy to data on human beings. He
was one of the first to make use of data on larger populations to make
generalized statements about humans and he's considered the—or certainly one of
the—founders of the social sciences (which did not split into different
fields—sociology, political science, psychology, etc., until the early 20th
century).
Quetelet began his statistical
observations with physical characteristics such as height and weight (hence the
development of the body mass index). He
later went on to consider the motivation of behavior in society. "His
principal work, 'A Treatise of Man and the development of his faculties'
published in 1835 is considered 'one of the greatest books of the 19th century.'"
The moral regularities, the
aggregates of individual choice, which Quetelet himself investigated included
age-specific crime rates for men and (separately) for women. [The 1835 work was] on the development of
human faculties. . . . Also arousing
lively reaction was a term used in the book:
l'homme moyen, the demographically average man, the human being with his
individual wishes and peculiarities canceled out, and thus entitled to
represent the nation. . . . [In the 1869
second edition] Quetelet added observed regularities in the number of suicides from
year to year, and in the rate of marriage for each sex and age group. This "moral
statistics" of Quetelet is the distant progenitor of the modern science of
sociology.
Where Quetelet aroused controversy
was in his conclusions about the statistics he had compiled. "Quetelet did not find in these observed
social regularities evidence of divine will, as some had done. He attributed them to social conditions,
which were themselves liable to change or be changed." He identified two types of causes of
behavior. One is the usual package of
constant factors that every researcher looks at: age, sex, education, income, religion,
etc. (He looked at them in combinations,
an approach that was forerunner to multivariate analysis now used widely in
statistical analyses.) The other was "free
will," which Quetelet largely dismissed and said it was a random cause of
behavior that tended to cancel out across large populations. (Like flipping a coin: "unpredictable, but tending to average
out in the long run.")
Among the philosophical issues raised
by Quetelet's theory of social regularity . . . are questions of individual
free will, and, ultimately, of individual responsibility for crime. In Quetelet's own formulation, "Society
prepares the crime, and the guilty person is only the instrument by which it is
executed." . . . Equally
controversial are questions of the effect, and the desirability, of legislation
intended to improve social conditions.
A few years
after Quetelet published his 1835 volume, he followed up with the observation
that physical characteristics of humans (such as height, weight, chest
circumference) fell into a normal distribution, a bell curve. There are extreme cases (people really short
and really tall) but most of us cluster around the average.
This has philosophical import: it assigns the human ideal not (say) to the
most evolved extreme, the highest end of the distribution, as cultured persons
had invariably done up to that time, but rather to the term in the middle, the
least extreme, the value with the most examples in that population.
Todd Rose, in
the Atlantic, described what he
believed Quetelet's perspective to be.
for Quetelet, the Average Man was
perfection itself, an ideal that Nature aspired to, free from error. He declared that the greatest men in history were
closest to the Average Man of their place and time.
Eager to unmask the secret face of
the Average Man, Quetelet began to compute the average of every human attribute
he could get data on. He calculated
average stature, average weight, and average complexion. He calculated the average age couples got
married and the average age people died.
He calculated average annual births, average number of people in
poverty, average annual incidents of crime, average types of crimes, the
average amount of education, and even average annual suicide rates. . . . Each
of these average values, claimed Quetelet, represented the hidden qualities of
the Average Man.
As much as Quetelet admired the
Average Man, he held an equal amount of antipathy toward those unfortunate
individuals who deviated from the average. "Everything differing from the Average
Man's proportions and condition, would constitute deformity and disease,"
Quetelet asserted. "Everything
found dissimilar, not only as regarded proportion or form, but as exceeding the
observed limits, would constitute a Monstrosity." He also pronounced, "If an individual at
any given epoch of society possessed all the qualities of the Average Man he
would represent all that is great, good, or beautiful."
There
really cannot be an "average" person, given the physical differences
between men and women (that is, born male or female, irrespective of choices
they may later make about their gender).
As we all know, the averages of such things as proportion of body fat,
height, endurance, strength, and so on, differ between men and women. The "average" person is thus an
impossibility. It's possible that a male
somewhere might, on many measures, approximate the average male; the same is
true for a female somewhere. But the
average person can't exist.
(From "Uplift Connect, a
feed to my Facebook page)
Nor
can the "reasonable" person, the man on the Clapham omnibus (or one
of its many passengers), exist. The
courts have pointed out repeatedly that for legal purposes, whether the
reasonable person actually exists in a community is irrelevant, because the
concept is a legal fiction.
There
you have it. Two of the most widely-used
avatars of human beings are imaginary.
How do you compare to the two?
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