The Bar Exam and the Natural Law

by Brian Potts

In a cynical mood, an examinee might answer, “exception,” as in: the general rule is that a defendant accused of negligence is held to a reasonable person standard of care, but the exception to this rule is that a defendant’s physical disabilities can relieve him of liability, but the exception to this exception is that if a defendant knows of his physical disabilities, then he is held to the standard of care of a reasonable person with those physical disabilities. Some exceptions swallow the exceptions to the rule.

In truth, however, the most ubiquitous substantive word is likely exactly what we should expect it to be: “reasonable.” This fact is a great testament to the natural law foundation of our human-made laws. Even in the example detailed above, “reasonable” shines through as the basic guiding light.

Natural law is the discernment of right and wrong by unaided reason applied to facts. A precept or rule of the natural law depends for its validity and justness not on divine revelation or human declaration, but simply on the fact that it is reasonable. Indeed, a positive law’s validity and justness depend on its correspondence with the natural law.

Positivism, to the contrary, generally holds a human-made law to be valid and just simply if it is made by a human with the power to enforce it. Sheer will, not universal reason, rules.

Bar exam preparation materials belie positivism, and indicate our human-made laws are based upon the natural law. In broad and fundamental fashion, examinees are reminded that:

• an offer exists when a reasonable person in the position of the offeree would believe that his assent creates a contract;

• the Constitution protects us against unreasonable searches and seizures;

• a reasonable suspicion is sufficient grounds for a Terry stop;

• the government must prove a movie has no serious value judged by a reasonable person standard before the government can ban a movie as obscene;

• service of process is constitutional if it is reasonably calculated to apprise interested parties of the litigation;

• a process server must use reasonable diligence in serving process;

• long-arm personal jurisdiction constitutionally extends to people who have a reasonable expectation they might be sued in a particular state;

• the physical area protected by laws against trespass includes the ground and reasonable distances above and below the ground;

• an action for false imprisonment will not lie if there was a reasonable means of escape;

• the tort of assault requires a reasonable apprehension of an imminent battery;

• the owner of a servient estate can choose the location of an implied easement by necessity so long as the location is a reasonable one;

and so on. The word “reasonable” permeates our human-made laws. Even when the word is not used, of course, our laws are generally reasonable.

Occasionally the preparation materials refer to a “law” which is unreasonable. These exceptional instances prove the general rule that our laws are reasonable. These anomalies often arose from strange historical circumstances, or from activists pushing misguided agendas. Legislators, judges, and attorneys engage in vigorous efforts to change the anomalies, if they are significant enough to be worth the effort.

A simple, comforting thought, the general reasonableness of our laws. Maybe it even provides a bit of solace to the examinees preparing for the upcoming tests.

Brian Potts is an associate attorney with the law firm of Kopka, Pinkus, Dolin & Eads, LLC, in South Bend, Indiana, specializing in civil litigation defense. He has tried to make the best of preparing for complete bar exams in two states.  Originally published by the Madison-St. Clair Record, March 1, 2009.  Reprinted with permission.