The University of Notre Dame Australia ResearchOnline@ND Theses 2019 The conjecture from the universality of objectivity in jurisprudential thought: The universal presence of a ‘reasonable man’ Johnny Sakr The University of Notre Dame Australia Follow this and additional works at: https://researchonline.nd.edu.au/theses Part of the Law Commons COMMONWEALTH OF AUSTRALIA Copyright Regulations 1969 WARNING The material in this communication may be subject to copyright under the Act. Any further copying or communication of this material by you may be the subject of copyright protection under the Act. Do not remove this notice. Publication Details Sakr, J. (2019). The conjecture from the universality of objectivity in jurisprudential thought: The universal presence of a ‘reasonable man’ (Master of Philosophy (School of Law)). University of Notre Dame Australia. https://researchonline.nd.edu.au/theses/215 This dissertation/thesis is brought to you by ResearchOnline@ND. It has been accepted for inclusion in Theses by an authorized administrator of ResearchOnline@ND. For more information, please contact [email protected]. The Conjecture from the Universality of Objectivity in Jurisprudential Thought: The Universal Presence of a ‘Reasonable Man’ By Johnny Michael Sakr Submitted in accordance with the requirements of the degree of Master of Philosophy University of Notre Dame Australia School of Law February 2019 SYNOPSIS This thesis proposes that all legal systems use objective standards as an integral part of their conceptual foundation. To demonstrate this point, this thesis will show that Jewish law, ancient Athenian law, Roman law and canon law use an objective standard like English common law’s ‘reasonable person’ to judge human behaviour. It argues that the universal use of objective standards dictates that human reason, a capability possessed by all mentally complete human beings, holds that objective standards are an important tool in judicial reasoning. To establish a just system of law, this thesis contends that objective standards should be used when judging human behaviour. This thesis, however, does not argue that purely objective standards should be used. Instead, a hybrid standard would suffice. In either standard, objectivity is present. This thesis therefore rejects using purely subjective standards to adjudicate human conduct. Whilst subjective elements are taken into account, such as sex, disability or other personal features of a defendant, this remains consistent with the objectivity thesis because subjective elements are not the basis by which fault is assessed. Fault is assessed objectively however, to ensure fairness, the defendant’s personal features are taken into consideration to ensure that he is not held to a standard no one can meet. The use of objective standards to determine accountability after individual idiosyncracies are factored into judgement, without those idiosyncracies determining the outcome. This is why the inclusion of subjective elements remains consistent with the objectivity thesis. The introductory chapter summarises this thesis and its methodology, and positions this thesis in its relevant jurisprudential context. The second chapter of this thesis identifies the use of objective standards in ‘Jewish law’. This term will refer to historical Jewish law in ancient times down to and including Maimonides in the twelfth century. After showing the use of objective standards in Jewish law, chapter three examines the use of objective standards in ancient Athenian law, focusing on the crime of homicide. With an analysis of ancient Athenian law in chapter three, this thesis proceeds to examine the use of objective standards in Roman law. After identifying the ancestor of common law’s ‘reasonable person’ in chapter four - Roman law’s homo constantissimus, chapter five continues to trace the use of objective standards in canon law jurisprudential thought. This chapter will focus on canon law issued before 1582 A.D. when Pope Gregory XIII revised and promulgated the Corpus Juris Canonici (the body of canon law). 2 Chapter six assesses the final legal system, English common law. This chapter successfully shows that this legal system used objective standards from as early as the sixth century A.D. Because all of the legal systems assessed in this thesis used objective standards in adjudication to ensure that their laws were just, we can infer that through reason, human beings view objective standards as a useful judicial or legislative tool. Chapter seven provides a defence to a potential argument against this thesis made from tradition. This objection argues that objective standards were only used in all these legal systems because they were blindly adopted through legal succession. In chapter seven, it is contended that this idea is false. Legal systems did not adopt prior philosophies or judicial tools blindly. Instead, these precedents had undergone a process to ensure they were befitting for society. Chapter eight explains why it is important we understand that all human judgement relies on objective elements like those evident in the reasonable man test of English common law. This thesis argues that the law ought not to apply subjective standards because in doing so it offends a principle throughout legal systems. The thesis traces the history of objectivity through Jewish law, ancient Athenian law, Roman law, canon law and common law. This chapter will assess two legal principles used in Australian law – mandatory minimum sentencing and strict liability. This chapter demonstrates how these contemporary laws offend the principle of objectivity – and argues for their revocation. The final chapter provides the conclusion that because objective standards are universally used to evaluate human behaviour; objective standards therefore play an important role to perpetuate a moral judgement. 3 STATEMENT OF ORIGINALITY This work has not previously been submitted for a degree or diploma in any university. To the best of my knowledge and belief, this thesis contains no material previously published or written by another person except where due reference is made in this thesis itself. This thesis follows the referencing conventions provided by the Australian Guide to Legal Citation. (Signed)_____________________________ Johnny M. Sakr 4 TABLE OF CONTENTS SYNOPSIS 2 STATEMENT OF ORIGINALITY 4 TABLE OF CONTENTS 5 ACKNOWLEDGEMENTS 9 CHAPTER ONE: INTRODUCTION 10 I Overview 10 II Defining the ‘Reasonable Person’ 12 III The Nature of the Reasonable Person Test 13 IV The ‘Reasonable Person’ and How it is Used 16 V Reasons for Choosing a Reasonable Person as an Illustration of Objective Standards 18 VI Thesis Approach 20 VII Thesis Structure and Chapter Breakdown 21 VIII Research Methods 30 IX Conclusion: Significance of this Thesis 30 CHAPTER TWO: THE REASONABLE PERSON IN JEWISH JURISPRUDENCE 31 I Introduction 31 II The Reasonable Person in Jewish Law 33 A The Law of Advertisement 33 5 B The Law of Bailment 35 C The Law on Abandoned Property 38 D The Law on Homicide 42 A Justified Homicide 42 I Warfare 43 II Self-Defence 45 III Preservation of Human Life 52 V The Law of Negligence 54 VI The Minor, the Deaf-Mute, the Lunatic and the Imbecile: Criminally Exempt 57 I The Minor According to Jewish Law 60 II The Deaf-Mute and the Imbecile According to Jewish Law 62 III Conclusion 63 CHAPTER THREE: THE REASONABLE PERSON IN ANCIENT ATHENIAN JURISPRUDENCE 66 I Introduction 66 II Ancient Athenian Jurisprudence 66 A Homicide 67 I The Draconian Constitution: Homicide and the Reasonable Person 68 II Homicide: Unintentional and Intentional 72 III Antiphon and the Reasonable Person 74 IV Conclusion 75 CHAPTER FOUR: THE REASONABLE PERSON IN ROMAN JURISPRUDENCE 77 I Introduction 77 II The ‘Pater Familias’ 78 A The ‘Bonus Pater Familias’ 82 B The ‘Diligens Pater Familias’ 84 III The Reasonable Person and the Sale of Property 85 IV Duress and the Homo Constantissimus 87 V Culpa and the Reasonable Person 89 6 VI Doli Incapax 94 VII Conclusion 96 CHAPTER FIVE: THE REASONABLE PERSON IN CANON LAW 99 I Introduction 99 II What is Catholic Canon Law? 100 III What is Ecclesiastical Law? 101 IV Objective Standards in Historical Canon Law 105 A Sources of Canon Law Up Until 1140 A.D. (Pre-Gratian Canon) 106 I Didascalia Apostolorum 106 II Council of Ancyra 107 A Council of Ancyra and Homicide 108 III The Apostolic Canons 110 A The Apostolic Canons and Homicide 110 IV Corpus Juris Canonici (Body of Canon Law) 114 A Decretum Gratiani 115 I The ‘Homo Constantissimus’ 115 V Conclusion 118 CHAPTER SIX: THE REASONABLE PERSON IN ENGLISH COMMON LAW AND CRIMINAL LAW 120 I Introduction 120 II English Common Law under Examination 122 III How English Common Law Used Objective Standards in Both its Civil and Criminal Law Departments 123 A Objective Standards Pre-Eighteenth Century 123 I The Laws of Ethelbert (600 A.D.) 124 II The Laws of Ine (C. 690 A.D.) 126 III The Laws of Alfred (892 – 893 A.D.) 128 IV The Reasonable Person 130 V Examples 145 A Volenti Non Fit Iniuria 145 7 B Diminished Responsibility: Irresistible Impulse 148 VI Discussion 151 VII Conclusion 152 CHAPTER SEVEN: AN ARGUMENT FROM TRADITION 155 I Introduction 155 II Pastness 161 III Authoritative Presence 161 IV Persuasion through Reason 162 V Conclusion 163 CHAPTER EIGHT: THE IMPLICATIONS OF DEVIATING FROM REASON 164 I Introduction 164 II Mandatory Sentencing Laws 165 A Western Australia 165 B Northern Territory 168 C New South Wales and its ‘One-Punch’ Laws 174 III Strict Liability Laws 181 IV Conclusion 189 CHAPTER NINE: CONCLUSION 193 THESIS BIBLIOGRAPHY 195 8 ACKNOWLEDGEMENTS I would like my principal supervisor Dr A. Keith Thompson for his guidance and support through the completion of my M.Phil. It was an honour and privilege to work under his supervision. I would also like to thank my associate supervisor Professor Augusto Zimmermann. His support and guidance has been invaluable. I would also like to thank my beloved wife Natasha for her constant support and encouragement, and finally I thank God for enabling me to complete this task and providing me with the grace necessary to do so.