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- In all of these settings, “reasonableness” recognizes that there is not one absolute rule of conduct premised upon moral or religious command. Instead, law depends upon the reciprocal regard for the interests of others—even and particularly those others holding different moral, religious, and political points of view.
www.mainelawreview.org › volume-67-no-1-2015 › reason-and-reasonableness
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INTRODUCTION. Reasonable legal minds agree that reasonableness is one of the foundational concepts of American law, infiltrating everything from administrative, corporate, and constitutional law to crimes, torts, and contracts.1 Yet the concept’s importance and prevalence have not necessarily bred clarity. In fact, a recent flurry of analytic ...
securities law; contract law; and the list could go on.9 In each of these well-established areas of law, reasonableness has become the core doctrine. It affords lawyers and judges, not to mention juries, the opportunity to make and specify law in particular contexts and permits the application of community standards to controversial conduct. Yet
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Part VI clarifies the underpinnings of presumptions and inferences in criminal law. It proposes constructing reasonableness as a presumption or an inference, which is the best application of the rules of evidence to the con-cept of reasonableness.
- Hisham M. Ramadan
- 2013
3 days ago · This Article addresses the central concept of “reasonableness” in the common law and constitutional jurisprudence. On the basis of three examples, the common law of torts, the common law of contracts, and Fourth Amendment jurisprudence, the Article notes that different areas of the law follow fundamentally inconsistent utilitarian ...
- Abstract
- Reasonableness, Weight, and The Structure of Judicial Review
- Purpose, Relevancy, Reasonableness, and Weight: The Argument
- Purpose, Relevancy, Reasonableness, and Weight: Possible Responses
- Reasonableness, Weight, and The Case Law
- Reasonableness, Proportionality, and Incommensurability
- Reasonableness, Proportionality, and Review
- Conclusion
There is a wealth of literature exploring proportionality, but considerably less dealing with reasonableness, 1 even though the latter is a central feature of judicial review. The very nature of reasonableness review nonetheless remains contested. Consider in this respect two distinct albeit related propositions. There is the claim that weight and ...
We begin with the relationship between reasonableness and weight, or more exactly the relevance of weight for the determination of reasonableness review. Lord Steyn in Daly , 9 as is well known, stated that rationality and proportionality were differentiated inter alia because the latter could require the court to pay attention to the relative weig...
Reasonableness review can, as is well known, connote the totality of review for propriety of purpose, relevancy and Wednesbury unreasonableness, what I have termed the umbrella sense of reasonableness. 17 The term reasonableness review can also be used to mean judicial control over and beyond review for purpose and relevancy. This architecture of r...
There are four possible responses to the preceding argument, but none are successful in this regard. It might be argued that there is some tertium quid or third element between relevancy and weight, such that even though the assumption in reasonableness review is that the consideration has been adjudged relevant this does not lead to the conclusion...
The Reality of Reasonableness Case Law: The General Approach
We can now consider the way in which the courts undertake reasonableness review in the light of the preceding analysis. There is nothing special about the cases discussed below. They are just examples. It is not relevant whether the claimant wins or loses, nor is it relevant whether the cases concern human rights or not. The cases are concerned with weight and balance, although the type of case (rights-based, anxious scrutiny, non-rights-based) will perforce affect the relative ease or diffic...
The Reality of Reasonableness Case Law: Resources and Weight
There are a number of cases that bear on the issue of resources and weight in the context of judicial review. Three types of case should be disaggregated in this respect. There are cases dealing with whether the amount of available resources is a consideration that can be taken into account under a particular statute. This is decided as a matter of statutory interpretation. The decisions are not immediately pertinent to the present analysis. They are concerned with the very scope of relevant...
The Reality of Reasonableness Case Law: Daly
We can now return to Lord Steyn in Daly , 61 who stated that proportionality could require the court to pay attention to the relative weight accorded to relevant interests, in a manner not done under the traditional approach to review, and could require the reviewing court to assess the balance struck by the decision-maker, not merely whether it was within the range of reasonable decisions. Daly was inextricably linked with the need to deal with Smith and Grady,62 where the ECtHR decided that...
The fact that reasonableness review entails consideration of weight and balance necessitates consideration of incommensurability, since the classic objection to proportionality, viz that it requires the court to balance incommensurable values, is equally applicable to reasonableness review. There is much of philosophical value written about incomme...
We can now reconsider the debate 84concerning whether proportionality should become a general head of review, a step that I favour, in the light of the preceding analysis. It is important at the outset to address arguments concerning the legitimacy of introducing proportionality as a general head of review in UK law. There are two facets to this ar...
There will be no attempt to summarize the entirety of the argument in this article. Suffice it to say for the present that debate will doubtless continue as to the scope/intensity of judicial review of discretionary power and of the medium through which this should be expressed, whether reasonableness or proportionality. This article has sought to ...
- Paul Craig
- 2013
What is built into the judicial determination of reasonableness? To answer these and other questions, this Article presents results from the first empirical study that analyzes how reasonableness has been conceptualized, measured, and explained through judicial review of agency actions.
In order to be able to say what the reasonableness of law is, one has to know what “reasonableness” in general means. The concept of reasonableness addresses theoretical questions, that is, questions concerning what is the case, as well as practical...
