Prof. Solum: You are a victim and a perpetrator of law school cult indoctrination. It made you forget 10th Grade World History and Western Civ 101.
Most of our core legal doctrines come unchanged from Henry of Bratton's Case book. He was a student of St. Thomas.
They believed that intellect was unreliable source of justice, morality. It was misled by the Fall from Eden and the Seven Deadly Sins.
The more reliable guide to moral decisions is Reason. The most reliable guide to Reason is the New Testament according to St. Thomas. If this is true, the Reasonable Person may really be 13th Century judge code for Jesus Christ. You learned this stuff when you studied the High Middle Ages. Law school indoctrination made you forget high school and freshman year of college. The reason this indoctrination took place is that supernatural doctrines violate the Establishment Clause.
The reasonable person has to be a fictional character in order to be objective. The use of a fictional character violates Due Process and Equal Protection because it is made up on the spot during the trial, and is subjective to the judge and jury. Idiosyncrasy is unfair, and violates Procedural Due Process.
In Henry's 13th Century, the idea of Reason was a good technical advance in the law. It was cutting edge modern application of Aristotle and St. Thomas Today, nothing from the 1200's is acceptable for practice in the real world. Today, that word is oppressive, unlawful, and unconstitutional.
2 years ago