What is a "subjective test"?

Iwannahurl

I heard the term "subjective test" used today in the context of legal discussion.

What exactly is a "subjective test", when does it arise, and what is its real-world practical significance? Any interesting examples by way of illustration?

I've done a Google search, but I'm having difficulty nailing it down.

seb65

Iwannahurl wrote: »

I heard the term "subjective test" used today in the context of legal discussion.

What exactly is a "subjective test", when does it arise, and what is its real-world practical significance? Any interesting examples by way of illustration?

I've done a Google search, but I'm having difficulty nailing it down.

The courts can use two viewpoints when setting a test in law, subjective or objective.

For example, say x is charged with raping y. X does not deny he had sex with Y, but believed that y consented.

The court may consider if x himself believed that y consented, taking into account all pertinent circumstances of x's state of mind. This is the subjective approach.

On the other hand, the court may instead consider if a reasonable person would have believed y was consenting at the time of intercourse. This is an objective approach.

Procrastastudy

Objective is the reasonable man or reasonable human being. If someone crashes into you while driving they are expected to have the skill to operate a car. Therefore it could not be argued that the person has just passed the test. The objective test can sometimes be complicated as the court may give an attribute to the reasonable human being. Say a blind man falls over something a sighted person would not. Given the right circumstances it will be a blind reasonable human being.

Subjective is where the court will try and get into a particular persons mind.

Probably the best contrast between the two tests is in provocation in homicide cases. Should it be objective - e.g. the reasonable man or subjective taking to account someones short temper?

Iwannahurl

I understand this has to do with criminal law, where a person can only be guilty if their mind is also guilty (culpability, mens rea and all that).

So, subjective refers to the mind of the accused, objective to the "reasonable person".

What about that word "test" then? Is that a specific process, or is it just a general term for the process of a trial where a person is tried on both subjective and objective principles?

And who is that reasonable person?

Procrastastudy

The objective standard of the reasonable man is used in all sorts of areas of the law. There has been quite amusing obiter (not key to the judge's decision) comments made in judgments which I'll dig out for you later. Contract and Tort is where this guy crops up a lot.

Criminal law is different in that the consequences for the accused are, arguably, more serious than a civil case. Therefore the use of a subjective test seems to be more prevalent although not always more popular.

Mens Rea and Actus Reus are even more complicated and may involve both tests described.

seb65

Iwannahurl wrote: »

I understand this has to do with criminal law, where a person can only be guilty if their mind is also guilty (culpability, mens rea and all that).

So, subjective refers to the mind of the accused, objective to the "reasonable person".

What about that word "test" then? Is that a specific process, or is it just a general term for the process of a trial where a person is tried on both subjective and objective principles?

And who is that reasonable person?

When the courts have to decide if a specific circumstance is proven in court, they will often set down a test.

The Common Law (of which Irish adheres to) is based on the past decisions of court cases. Often, the test is created by the Supreme Court (or, if the test was created by a lower court, it may be affirmed or changed by the Supreme Court).

So, when you sue someone because you slipped on their premises and you must prove, to win, that the person was negligent the courts have laid down, that to satisfy the test of negligence, you must prove:

That the person you are suing owed you a duty of care;
That the person you are suing breached the standard of that duty of care;
and that the breach caused your injuries.

The courts may deem the test to be applied is to be subjective or objective. However, that also follows past decisions - they won't go back and forth between the two for the same crime - or tort.

The reasonable man is your average Joe. The man on the bus. Middle class, average education (maybe leaving cert).