THE COOL GIRL COURT

How supposedly neutral legal standards encode male experience

The law often speaks in the language of neutrality. It offers standards that appear universal, detached from identity, and resistant to personal subjectivity. Few examples are more central than the “reasonable person”, the figure who silently shapes negligence, fear, responsibility, and credibility across legal doctrine.

But the more closely we examine this legal subject, the less neutral it appears.

The reasonable person has always been presented as objective. In Vaughan v Menlove (1837), the court rejected the defendant’s argument that he had merely exercised his own best judgment, insisting instead on an external standard of ordinary prudence. This doctrinal move was foundational: law would no longer ask what this defendant thought was careful, but what a hypothetical reasonable person would have done.

That shift gave the common law coherence. It also embedded a serious problem. Because legal objectivity often disguises historical assumptions about whose experience counts as ordinary.

The “reasonable person” in tort and criminal law has traditionally reflected assumptions about autonomy, confrontation, bodily confidence, emotional expression, and risk tolerance that were historically coded through male social experience. This becomes visible when law confronts harms disproportionately experienced by women: coercive control, stalking, cumulative fear, workplace harassment, or trauma responses that do not resemble the law’s expectation of immediacy.

In negligence, the standard remains outwardly universal. Alderson B’s classic formulation in Blyth v Birmingham Waterworks describes negligence as failing to do what “a reasonable man” would do in ordinary human affairs. Yet what counts as ordinary is never socially neutral.

For example, the law often recognises catastrophic physical risks more readily than patterned social harms. Broken bones are legible. Repeated intimidation, digital surveillance, and coercive domestic behaviours are often not.

This matters because women’s legal harms frequently emerge through accumulation rather than singular dramatic events.

The doctrinal language of reasonableness can therefore become a filter through which lived female experience is flattened into legal abstraction.

A woman documenting escalating intimidation by a former partner may be told there was no sufficiently “immediate” threat. A workplace culture of exclusion may be treated as too diffuse to ground foreseeable psychiatric harm. A survivor’s hypervigilance may appear legally excessive only because the baseline of reasonableness was never built around cumulative gendered risk.

This is why feminist legal theory has long challenged the myth of universalism.

Catharine MacKinnon’s enduring insight that law often “sees and treats women the way men see and treat women” remains profoundly relevant here. The point is not that women need a separate legal standard. It is that standards presented as neutral may already be partial.

The question is therefore not whether the law should abandon objectivity.

It is whether objectivity has too often mistaken historically male social assumptions for universality itself.

A more honest doctrine of reasonableness would remain objective while becoming context-sensitive:

• attentive to cumulative threats
• alive to trauma
• responsive to gendered vulnerability
• capable of recognising harms that unfold through systems, not moments

The future of better legal design lies here. Not in rejecting the reasonable person.

But in finally asking: reasonable for whom?