Monday, November 23, 2009

My Constitution, Section 3

Section 3 - The Reasonable Person Standard

This formulation of a Reasonable Person standard is one of the definitions most crucial to the proper interpretation and implementation of this Constitution. In terms of sociopolitical theory and practice, a free society requires that the majority of its members be mostly rational. Underneath that is the fact that men acting rationally are entitled to expect others also to act rationally, particularly when dealing with the formulation of laws. When this is applied to laws, justice then requires that people draw upon a realistic picture of what it means for individuals to act rationally so that there will be one body of law whose content and implementation will be both consonant with morality and knowable to the broad mass of ordinary people. The Reasonable Person standard is that picture.

3(1) The foundation of the Reasonable Person standard is an individual of sound mind and who has used and will continue to use the principles of objectivity throughout all aspects of life.
3(2) Sound mind status shall be upheld of all individuals capable of:
(i) understanding the concept of morality;
(ii) making judgement of how to act; and
(iii) exercising volition to choose their actions.
There is no Reasonable Person without reference to the bedrock of what it means to be a rational being in terms of actual mental capacities. Without those capacities as the root all else is meaningless.

The possession of a sound mind is a critical foundation of the existence of rights – any kind of being who would ordinarily be expected to be capable of this has rights. A Constitution should recognise that fact and seek to protect it. Protecting the sound-mind status of rights-bearing beings is one of the first steps.

Further, invoking a sound-mind status implies that there are those who don’t in fact have a fully sound mind and yet either should have or in time will have, which is the case for the mentally handicapped and the young. How we treat these people in regard to rights must differ because of that lack of a full sound-mind status. The secondary point of this particular clause is thus to make sure that mechanisms of proper consideration for these people is not twisted to abridge the rights of healthy adults. For instance, one of the sly tricks that Communists play is to impugn the mental stability of their opponents, and to throw dissidents into mental institutions.

3(3) The Reasonable Person knows the principles of objectivity, these regarding or being:
(i) sensory and perceptual observation;
(ii) formation of concepts, propositions and arguments;
(iii) inductive logic up to the level that an individual of ordinary intelligence is capable of learning and using, irrespective of what actual people know and use;
(iv) all deductive logic;
(v) rejection of any variant of the idea that emotions are means of cognition; and
(vi) all further principles of objective judgement.
These are the elements of the actual practice of reasoning. It is by being objective that one properly uses one’s faculty of reason. That is, this is what it means to put a sound mind to use. Justice requires presuming this being actually followed through on by most people, or else law will increasingly treat people as children or incompetents unfit for liberty. It is also required for law to be based on and stated as principles, rather than an ever growing mass of concrete rules.

Most of it is straight forward, but one point in particular needs addressing. Expectation of skills in induction should only be invoked up to the level that people of ordinary intelligence are capable of, whereas skill deduction should cover the whole of that subtopic. The reason for the difference is that induction is a highly complex skill requiring considerable experience and intelligence, whereas deduction is much easier to learn. Thus justice requires that while we can rightly require that law presumes that men know deductive logic because all men of ordinary intelligence or greater can understand and use it, the kinds of conclusions one may honestly draw by inductive methods will change in response to someone’s intelligence. It is unjust to make it a legal requirement that people determine right and wrong in situations where they simply do not have the requisite capacity for sufficient judgement.

3(4) The Reasonable Person knows and understands the content of this Constitution, knows that an objectively-discovered morality is a necessity for flourishing life, agrees with the moral principles underlying the fundamental right to life and liberty, and disavows all contrary moral precepts.
The Reasonable Person ought know the foundations of justice and how ethical theory is necessary for good political theory, because it is everyone’s obligation to act morally and to obey just law – but the latter also requires that people know the law and the foundation of that law so they can tell apart just from unjust law. Hence upon the knowledge of morality is added the first content of the philosophy of law applied to governance and under which all laws are made. That is, knowledge of a Constitution with a good Bill of Rights.

3(5) For a given jurisdiction of which a law is invoking this standard, the Reasonable Person possesses and has objectively judged such quantity and quality of both understanding of language and general knowledge that was commonly expected of individuals of at least ordinary intelligence who were domiciled in that jurisdiction when that law was first made.
There are many customs and practices regarding what is legitimately within the purview of law that have to be just taken for granted. For instance, the law has to take into consideration what is reasonable for people to presume other people will implicitly expect or agree to as part of a legally-binding agreement using particular concepts; in one case it may be customary for people in one culture to physically examine merchandise offered for sale without the express permission of the vendor to touch and handle it while not customary in another culture, where touching without permission could be considered having agreed to purchase the item or even be an offence of some kind. The law has to take that kind of expectation of common knowledge into account and cannot dictate what that expectation ought be. It is not the place of government to define a society and its culture, nor to delimit what people’s experiences and expectations should be. Hence there is no alternative but to enshrine a principle of law incorporating consideration for commonly-expected knowledge and customs, which will also take care of the fact that cultures and expectations can grow and change over time.

3(6) In a given set of circumstances, and with objective consideration for urgency or otherwise for thought and action, the Reasonable Person has both obtained and objectively judged such quantity and quality of knowledge of those circumstances as he had notice to obtain; such notice and judgement being based upon what would be plainly evident to an individual of at least ordinary intelligence and possessing the above expected knowledge.
3(7) In those same circumstances, and with objective consideration for urgency or otherwise for thought and action, the Reasonable Person has both obtained and objectively judged (whether by himself or from another whose reliability he has objectively judged) such quantity and quality of further understanding of language and advanced knowledge as he has notice arising from the circumstances at hand that he ought to obtain and judge, and also that which he should prior have obtained and judged before choosing to be exposed to the circumstances, such notice and judgement being based upon the knowledge of the circumstances at hand and the above expected knowledge.
These two are refinements of the previous clause regarding knowledge and expectations. As well as the common knowledge, it is rational to expect people to take cognisance of the context of the particular situation they are in and also have made due efforts to prepare themselves for prospective situations they should know they’d end up in and purport to have knowledge of.

3(8) With due deference to the urgency or otherwise for thought and action, the Reasonable Person objectively infers conclusions from all the knowledge he is expected to possess, and then equally objectively formulates and executes plans of action.
3(9) For this Constitution and all laws of all Australian jurisdictions, ‘reason,’ ‘reasonable’, ‘reasonably’, ‘justice’ and ‘necessary’ shall be taken to mean what the Reasonable Person would think or would judge is proper.
These two are continuation of the practice of objectivity in general, as applied to the sum of a man’s knowledge, and indicating that this expectation will be invoked repeatedly. In fact, the word ‘reason’ and its related words are used a few hundred times. As was said at the outset, the meaning of what is reasonable is one of the must crucial definitions of all.


No comments:

Post a Comment