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107 S. African L.J. 279 (1990)
Reasonableness in a Divided Society

handle is hein.journals/soaf107 and id is 295 raw text is: 'REASONABLENESS' IN A DIVIDED SOCIETY CHRISTOF HEYNS* Senior Lecturer in Legal Philosophy and Comparative Law, University of Pretoria A student of mine recently wrote a paper in which she attacked the trend in South African law to attribute characteristics to the 'reason- able man', which are typically associated with white males, according to which everyone in society is then measured. She argued that even in terms of Western jurisprudence there is no authority for such an approach. As is known, the reasonable man in English law is typified as the person on the bus and in American law as the person who mows the lawn. If applied to our country, she argued, this depiction obviously would mean that the reasonable man must be seen as black: it is a sad reality that the large majority of people in South Africa who use bus transport and mow lawns are, after all, black. This playful argument does raise an important question with far-reaching implications: What content should be given to the legal norm of 'reasonableness' in a society with such deep divisions in its value-structures as ours? That is, should the pursuit of only certain values' be regarded as legally acceptable, and others not, and if so, in terms of what standards should the distinction be made? This problem is particularly pressing in a society where what is considered as unreasonable or deviant by one group is accepted, in good faith, as reasonable or normal by others.2 Can the legal system avoid 'choos- ing sides'? The question what the term 'reasonable' means presents itself in a wide spectrum of fields in South African law,3 and the answer courts * MA (Phil) LLB (Pret) LLM (Yale). The term 'values' is used here, and in the rest of this paper, loosely to refer to irrational factors such as beliefs, attitudes, prejudices and idiosyncrasies. Of course, values need not be 'good' values. See in general on the role of values in the law, Guido Calabresi Ideals, Beliefs, Attitudes, and the Law (1985) (hereinafter cited as Calabresi). 2 See C S Cant & E L Masina 'Deviance in Rhodesian Society: The Impact of European Values on African Culture as a Cause of Crime' (1973) 13 Rhodesian LJ 47. As an example of the problem posed in the title of this article, the authors cite the smoking of dagga, which is not regarded as deviant amongst certain groups of rural Africans. 3 In respect of the law of delict, see P Q R Boberg The Law ofDelict: I Aquilian Liability (1984) (hereinafter cited as Boberg) 30 (on wrongfulness) and 268 (on negligence); NJ van der Merwe & P J J Olivier Die Onregmatige Daad in die Suid-Afrikaanse Reg 5 ed (1985) (hereinafter cited as Van der Merwe & Olivier) 49 (wrongfulness) and 127 (negligence); J C van der Walt 'Delict' in W AJoubert (ed) The Law of South Africa VIII (1979) paras 19-20 (wrongfulness and negligence). As far as criminal law is concerned, see E M Burchell, & P M A Hunt South African Criminal Law and Procedure: I General Principles of Criminal Law 2 ed (1983) 319 (unlawfulness) and 123, 234 279

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