A Case for Positive and Economic-Based Approaches to Reasonableness in Tort Law and their Practical Implications

In spite of some instances in which statute or contract specifically determines the approach by which the standard of care is to be tested, the notion of Reasonable Man which plays a crucial role at the heart of Duty of Care is an ambiguous and abstruse issue. The Article sets forth an answer to the following question: Should reasonableness be a normative or a positive notion? In other words, should the reasonable person be defined in accordance with a normative ethical commitment or in accordance with an empirically observed practice or perception? We put forward and defend the thesis that positive approach is illogical and normative approach, namely Economic Welfare approach, is categorically sound, although the latter raises partially surmountable practical problems. This Article is basically founded on Documentary Research and Literature Review and is presented in two parts; The first involves dealing with the positive approach and the latter with the normative one.