Date of Award
2019
Degree Name
Master of Philosophy (School of Law)
Schools and Centres
Law
First Supervisor
Doctor Keith Thompson
Second Supervisor
Augusto Zimmermann
Abstract
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).
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.
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