Justice Megarry said, in a breach of confidence case:
“It sems to me that if the circumstances are such that any reasonable
man standing in the shoes of the recipient of the information would
have realised ... , then this should suffice...." (Coco v A.N.
Clark (Engineers) Ltd. [1969] R.P.C.)
This Reasonable Man criterion has been used in many cases
-- not just in breach of confidence cases -- see, for example, the contract
case: Paulger v Butland Industries Ltd [1989] 3 NZLR 549-554.
New Zealanders take Feminism very seriously, and you often hear Feminists
(which includes both men and women) refusing to use the phrase Reasonable
Man, but insisting on using the phrase Reasonable Person
instead. I will discuss why they do this below, in the course of making
the case for the retention of the original phrase.
The Case for the Reasonable Man
There are three reasons, I believe, for retaining the term Reasonable
Man:
1.That is what the term originally was;
2.It was not meant in a way that excluded women;
3.Feminist uses of "non-sexist language" are inconsistent
and sexist.
1. The Original Term
The English legal tradition is full of Latin phrases, such as a
fortiori, Ex parte, and non sequitur, etc. I
happen to have studied Latin for many years (a long time ago), but I
do understand that Law students who have not done so might find these
Latin phrases a bit unnecessary, to say the least. In that context,
one might expect that a simple English phrase, such as Reasonable
Man, would be retained in its original form. After all, if you
don't object to using numerous phrases from a language that has been
(for most purposes) dead for about 1,500 years, why should you insist
on modifying a phrase in your own, living language that was perfectly
acceptable a mere generation ago ?
2. An Inclusive Term
The word man, before Feminism was invented, was a sexually
(no: I do not mean "gender-", because I am referring to physical
sex, rather than to Sociological gender) inclusive word. It had (at
least) two meanings: it meant a male human being, and it also meant
a human being -- whether female or male. I don't think that anyone is
so simple-minded that they can't cope with a word having more than one
meaning.
There is more to this issue, however: Feminists claim that research
indicates that males and females take more interest in job-advertisements
if the occupational term is sexually neutral, than if it seems to include
the opposite sex only. See, for example, the booklet "Watch Your
Language" (New Zealand State Services Commission 1990).
This booklet suggests, for example, replacing the words on the left
with the words on the right:
However, many of the occupations involved are not attractive to most
women, so the name changes may seem to some people to be a waste of
time, effort and money. It is not as if all mainly-male occupations
are better paid and more attractive than all mainly-female occupations!
A lot of them are dirty, dangerous, and poorly-paid. Many more men die
in job-related accidents than do women.
Nevertheless, let's assume that the above argument in favour of using
occupational terms that are sex-neutral is a convincing one. Even if
it is convincing, it still does not apply to the term Reasonable
Man, because it is not an accupational term.
3. Feminist Hypocrisy
The clincher, however, is the hypocrisy of the Feminist attempts to
institute sex-neutral terminology -- at least, outside the limited sphere
of occupational terms. For example, many Feminists have argued that
God should not be regarded solely as male. Some have even referred to
God as She. But I have never heard a Feminist refer to the
Devil as she. Why is this ? It is quite obvious that most Feminists
are biased. They only want the good things in Life to be female !
I have found that TV One and TV3 insist on using words like gunman,
instead of gender-neutral alternatives, such as gunperson,
gunner, or shooter. The incident when armed male and
female Chechen militants took over a Moscow cinema would have been a
perfect opportunity for the (overwhelmingly Feminist) media to use terms
like gunperson or even gunwoman, but they did not
rise to the occasion, as far as I could see. If a word was derogatory
only to mere men, then they were perfectly happy to use it. Another
example is the word manhunt, which Feminists have never tried
to change to personhunt, as far as I am aware.
The word gunman denigrates all males, because it implies that
only men go around killing people with guns. This is parallel to the
word chairman, which Feminists say discriminates against (all)
women, because it implies that only men chair meetings.
The difference is that Feminists want women to be thought of as potential
chairpersons, and so on, but they are quite happy for only men to be
thought of as potential gunmen, because this word has negative overtones.
Feminists often say that they only want equality, but issues such as
sexist language make it obvious that this is a lie.
Conclusion
Until and unless Feminists show a consistent willingness to use non-sexist
language for the benefit of men as well as women, lawyers should not
even contemplate saying Reasonable Person instead of Reasonable
Man. Even if and when the above unlikely event does occur, lawyers
should continue to use the term Reasonable Man until and unless
the use of Latin terms is also abolished in Legal contexts.
