Five Canadian thinkers take the IDEAS 'Reasonableness Questionnaire'
'There are times when one should be 'unreasonable in quotation' marks,' says poet George Elliott Clarke
*Originally published on Feb. 6, 2024.
When Justice Richard Mosley ruled that the federal government's invoking of the Emergencies Act in early 2022 did not "bear the hallmarks of reasonableness," he also listed those hallmarks to avoid confusion.
Justification. Transparency. Intelligibility.
Mosley's three hallmarks of reasonableness follow the text of a Supreme Court of Canada decision from 2019. That older judgment asserts "the principle that the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it."
Lawyers and judges cannot avoid the task of converting vague words like 'reasonableness' into tangible acts, such as allowing somebody to hold a passport, remain outside of jail, or occupy a city street with large trucks.
To some extent, legal definitions are jargon. They evolve and exist in a subculture detached from mainstream society. And yet, the law must also bear another hallmark of reasonableness identified by legal scholars: responsiveness.
The implication is that a legal interpretation must respond to how reasonable people throughout society would use and understand a word. And that goes for the term 'reasonable person' itself.
Many laws rely on a distinction between reasonable and unreasonable behaviour.
According to the influential American philosopher John Rawls, a liberal democratic society depends for its existence on the use of "public reason." Without this basis, Rawls argued, the society's institutions would collapse.
Given the importance of telling reasonableness apart from its opposite, IDEAS invited five scholars from outside the legal profession to clarify their own definition of the term.
Each scholar received one hour to answer a five-part questionnaire aimed at drawing out this definition and revealing any potential contradictions within it.
A Five-Part 'Reasonableness Questionnaire'
1. When in your life have you encountered what you consider to be unreasonableness?
2. What are the characteristics of unreasonableness?
3. What role should reasonableness play in a democratic society?
4. When are you unreasonable and why?
5. What is your strategy for dealing with unreasonable people?
Here are some excerpts from the answers our panellists provided.
Anakana Schofield: I think a deficit of imagination is the main characteristic of being unreasonable, because you can't perceive how somebody else might feel. So, for example, poverty. You might have very unreasonable people that say, 'Oh, just pull up your socks and get a job. Look at me. I work.' Because they basically have a deficit of imagination, they might not know that that's not how it is for every single person in the world. Maybe that person has all kinds of barriers that you have a deficit of imagination imagining because you've not had those barriers. So for you, they don't exist.
Lynne Viola: I'm totally unreasonable when I have neighbours who blast their music when I'm trying to write. I demonstrate a complete lack of tolerance and at times a complete lack of civility. More importantly, I cannot stand dealing with bureaucracy when it is stupid or when it is run by some sort of algorithm. It is the bane of my existence, and I have seen it operate equally in the U.S., Russia, and Canada. I'm sure I've been very unreasonable dealing with unreasonable bureaucrats, including in my own department at the university.
George Elliott Clarke: There are times when one should be 'unreasonable' in quotation marks. I mean, if one is being treated unjustly in some way, shape or form, and if you feel that your personal values, virtues, are being trampled upon, are being thwarted, are being unjustly denied, then I do think that a certain level of angry confrontation may be justified within reason — you know, I gotta use that phrase 'within reason.' Sometimes one does have to push back against unfair, unjust, and untoward behaviour.
Miglena Todorova: One way for me to unpack it is to lean back on my first original language, Bulgarian, and what is reasonable or unreasonable in the Bulgarian language, a unique language spoken only by Bulgarians, about six million of them. In the Bulgarian language, the very idea presumes public behaviour. What is reasonable or unreasonable behaviour is always determined by a social collective, by the context of a social interaction. It's not about what I think is reasonable but how society or members of society experience this. This may be slightly different from the connotation of the wording in the English language, where 'reasonable' gestures to rational behaviour and the presumption that all human beings are rational.
Rinaldo Walcott: My strategy for dealing with unreasonable is, first: I laugh. It buys me time to think about how I'm going to respond. And then, neutrally, I often ask the question: is there any other way that we can do this? And if the answer is no, I usually either argue or I just give up and walk away. Depends on what mood I'm in that day. When I want to argue my case, I want to try to break down the unreasonableness of the response and try to show up its contradictions so that maybe something different will happen. And when I walk away, it's because I'm just, like, I don't have it in me today. I'm going to come back another day, another time. I always suspect that another day, another time, a different person.... what was unreasonable on Tuesday might be very reasonable on Thursday.
*Excerpts have been edited for clarity and length. This episode was produced by Tom Howell.
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Guests in this episode:
Miglena Todorova teaches at the Ontario Institute for Studies in Education, at the University of Toronto.
George Elliott Clarke is a poet and playwright, originally from Halifax, Nova Scotia. His books include J'Accuse: Poem vs Silence.
Rinaldo Walcott is chair of the department of Africana and American Studies at the University at Buffalo, part of the State University of New York.
Anakana Schofield is a novelist in Vancouver. Her books include Bina: A Novel in Warnings.
Lynne Viola is professor emerita in the department of history at the University of Toronto.
