Who, exactly, is the man on the Clapham omnibus?

Since the adoption of common law, Canadian courts have revered the man on the Clapham omnibus. This man, thought to be of humble means and intellect, rides the bus each day between Knightsbridge and Clapham. He is an ordinary man, travelling to a somewhat unremarkable area of London. He is a man of rationality and impartiality, one who, though not an expert, has some knowledge of the world. This man, standing amongst the other passengers on the bus, is thought to be a reasonable man. As recently as 2014, in Healthcare at Home Limited v The Common Services Agency[1] the UK Supreme Court described this man and his comrades: 

The Clapham omnibus has many passengers. The most venerable is the reasonable man, who was born during the reign of Victoria but remains in vigorous health. Amongst the other passengers are the right-thinking member of society, familiar from the law of defamation, the officious bystander, the reasonable parent, the reasonable landlord, and the fair-minded and informed observer, all of whom have had season tickets for many years. [para 1]

Each day, on the cramped bus ride between downtown Victoria and campus, I think about this man. Who among us, embodies the reasonable person, this intellectual fiction we have summoned to help us grapple with a legal standard?  The other archetypes —the officious bystander, the informed observer— are relatively easy to spot in the swells that flow on and off the bus. But this folkloric, mystical common law mascot, an inquisitive, cool-mannered generalist who balances evidence and argument to make the decision that most benefits society, remains elusive.  

The idea that one person —a middle-aged, middle-class white man from the suburbs of London— can possibly negotiate the complexity and intersectionality that exists in a modern society is both colonial and obtuse. The man on the Clapham omnibus, though reasonable as he may be, is a product of his environment. His relative privilege, and his subsequent experience of the world, evokes its own set of cognitive biases. Our reverence for the reasonable man is, arguably, what got us into this mess in the first place: by touting his characteristics as the epitome of reasonableness, we have designed a system based an archetype is not only unattainable, but actually make-believe. It does not take into account the realities of being sentient creatures who are hopelessly vulnerable to any number of cognitive biases[2] that go entirely unchecked. By using this hypothetical, the court is identifying a set of norms upon which reasonability is formed; which is not only singular, it is also entirely dismissive of the plurality of experiences, needs and mental models that exist in a modern civil society. 

In his book The Opposable Mind[3], Roger Martin describes “The ability to face constructively the tension of opposing ideas and instead of choosing one at the expense of the other, generate a creative resolution of the tension in the form of a new idea that contains elements of the opposing ideas but is superior to each.” Managing the tension between ideas that may at first appear opposed, he argues, is the hallmark of an integrative thinker, someone who “welcomes the challenge of shaping the world for the better.” As a legal practitioner, I would like to integrate principles from design, neurobiology, computational psychiatry, human factors, behavioural economics, architecture, and engineering to build more interdisciplinary, participatory structures within the law. We need to build legal literacy, and create meaningful, playful ways to engage with the law that do not require any working knowledge of how to navigate a legal memo. And we need to help Canadians trust their country’s commitment to the constitution and the rule of law, and feel the presence of the legal system as a shield rather than an unwieldy sword. 

Addressing the complex, wicked problems that have blocked access to justice in Canada will require a different set of tools than those currently offered through the law. The mental building blocks of the justice system crystallized in a time characterized by very different social values, some of which were glaringly racist, misogynist, ableist, classist, ageist, and other socio-political afflictions. In the words of Audre Lorde, “the master’s tools will never dismantle the master’s house[4].” To redesign the administration of justice for increased access, we will need to apply different mental models than those that were used to architect that system. Lorde demanded a kind of ethical reform, arguing that oppression cannot be disrupted with the same logic that justified the oppression in the first place. To explore this, Lorde mused, “What does it mean when the tools of a racist patriarchy are used to examine the fruits of that same patriarchy?” responding, “It means that only the most narrow perimeters of change are possible and allowable.” In other words, to challenge the status quo in our legal system, we must find new tools to help us evolve our conceptions of justice, fairness, and ethical hygiene. 

The core purpose of strategic design is to resolve tension by combining the best elements of opposing ideas, which when combined, generates a model that is superior to both. In this model, diversity is not a moral imperative, but rather, a strategic one: to be diverse is to manage our differences while developing a moral code stronger than the sum of our parts. Part of this is not even cultural diversity per se, but rather, neurodiversity: bringing together different types of thinkers from different disciplines to help us see problems from new angles. Diversity in civil society — true diversity, beyond platitudes — makes us smarter, stronger, and more resilient. 

We are living in an era I affectionally refer to as the mid-future: where optimistic visions of well-designed systems are dangled in front of us like carrots, but they are strung from the archaic socio-cultural sticks of the past. It feels fairly absurd at times; we revel over editing the human genome, yet we fail to address the suicide epidemic on reserves; we are developing the technology to colonize Mars, yet we fail to rising atmospheric temperatures here on earth.  And rather ironically, it is a time when the man described riding the Clapham omnibus probably could not afford legal representation. Our legal system is only as strong as its citizens’ capacity to utilize it. Improving access to justice in Canada demands a systems-based response that is experimental, informed, and nuanced. I hope to collaborate with my peers to build an integrated legal practice that is driven by those principles.

Footnotes

[1] [2014] UKSC 49

[2] Benson, Buster. “Cognitive Bias Cheat Sheet.” Medium, Better Humans, 23 Apr. 2019, medium.com/better-humans/cognitive-bias-cheat-sheet-55a472476b18.

[3] Martin, Roger L. The Opposable Mind How Successful Leaders Win through Integrative Thinking. Harvard Business School Press, 2009.

[4] Lorde, Audre. The Master's Tools Will Never Dismantle the Master's House. Penguin Books, 2018.

[5] Googins, Bradley, et al. “Vision, Mission, Values: Guideposts to Sustainability.” Organizational Dynamics, vol. 39, no. 4, Oct. 2010, pp. 316–324., www.researchgate.net/profile/Philip_Mirvis/publication/247141794_Vision_mission_values/links/5a43ce11aca272d2945c07b9/Vision-mission-values.pdf.

[6] Jones, Bruce. “The Difference Between Purpose and Mission.” Harvard Business Review, Disney Institute, 22 Apr. 2016, hbr.org/sponsored/2016/02/the-difference-between-purpose-and-mission.

Buche, Ivy, et al. “Put Purpose at the Core of Your Strategy.” Harvard Business Review, Harvard Business Publishing, 27 Aug. 2019, hbr.org/2019/09/put-purpose-at-the-core-of-your-strategy.

[7] https://www.discprofile.com/what-is-disc/history-of-disc/