Keith Mack
The concept of common sense in law refers to the idea that certain principles or actions are widely accepted as reasonable and logical by people across diverse cultural, political, economic, religious, racial, and social backgrounds. In the United States, the idea of common sense often comes into play in legal contexts, such as insurance law and tort law, where the behaviour of a reasonable person is considered. For example, in product liability cases, manufacturers can be held liable for reasonably foreseeable misuse of their products, even if the customer lacked common sense in their usage. In other contexts, such as gun control, the term common sense laws is used to describe legislation that aims to reduce gun violence while respecting the rights of law-abiding gun owners. These laws may include measures such as raising the minimum age to purchase certain firearms or requiring gun owners to securely store their weapons.
| Characteristics | Values |
|---|---|
| Common sense laws | Based on "reasonableness" or what a reasonable person would do |
| Prevents the type of gun violence that devastates communities | |
| Respects the rights of law-abiding gun owners | |
| Enact legislation that would mean a reduction in gun violence statistics | |
| Broad support indicates wisdom | |
| National gun laws | |
| Stricter firearms regulations | |
| Strengthening background checks | |
| Raising the minimum age to purchase assault weapons and high-capacity magazines from 18 to 21 | |
| Requiring gun owners to keep their weapons secured and away from children, thieves, etc. | |
| Providing tax incentives for gun owners to buy secure storage lockers for their firearms |
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What You'll Learn
Common sense laws in Western Europe
In Western Europe, the concept of "common sense" is applied in laws, particularly in insurance law. This means that customers are expected to use their common sense while using a product, and companies are not held liable for a customer's misuse of a product due to a lack of common sense. For example, if a customer puts their cat in a washing machine because it was not specified that doing so would lead to its death, they do not have the right to sue the company that sold them the washing machine. This differs from US law, where customers can sue companies if they misuse a product because the instructions for use did not explicitly state what is allowed and what is not.
The European Union (EU) is the most significant source of supranational European law, and its laws are supreme over the national laws of EU member countries. The EU has expanded its authority over many aspects of European economic and political life, including contracts, business law, labour law, immigration law, and consumer law. The Council of Europe, which includes nearly all European countries, also influences supranational European law by requiring its members to become parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
In addition to these pan-European legal influences, individual countries in Western Europe have their own unique laws that reflect local priorities and concerns. For example, in Lithuania, it is illegal to cross the street while using a mobile device, with fines of up to 40 euros, to address the country's high rate of pedestrian deaths. In Bulgaria, drivers are required to carry a fire extinguisher in their vehicles at all times. In Cyprus, there is a zero-tolerance policy for drinking and driving, which even includes non-alcoholic drinks, and eating while driving can result in a fine.
While not specifically mentioned as "common sense laws," certain regulations in Western Europe align with the concept of using common sense in daily life. These laws often relate to public safety, health, and maintaining social order.
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Common sense laws in the US
In the context of insurance law, the concept of common sense arises when customers misuse a product due to a lack of explicit instructions. In such cases, customers may have the right to sue if their actions, despite demonstrating a lack of common sense, were not specifically prohibited by the product's instructions. This differs from Western European insurance laws, where the concept of common sense is more explicitly integrated.
Common sense also extends to legal ethics and the attorney-client relationship. For instance, the California Court of Appeal in Streit v. Covington & Crowe (2000) asserted that an attorney making a one-time appearance is deemed to be representing the client and is thus subject to the usual attorney-client obligations. This decision was justified based on common sense, as it recognised the presumption of authorisation for an attorney making a court appearance on behalf of a party.
Additionally, the term "commonsense gun laws" has been used to describe proposed legislation aimed at reducing gun violence while respecting the rights of law-abiding gun owners. These proposals include ideas such as raising the minimum age to purchase assault weapons, requiring secure storage of firearms, and strengthening background checks. While there is public support for such measures, implementing commonsense gun laws faces significant political and legislative challenges.
Overall, while the term "common sense" may not be explicitly defined in US law, the concept influences legal interpretations, jury decisions, and policy discussions, shaping the understanding of reasonableness and foreseeability in various legal contexts.
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Commonsense gun laws
While the specifics of commonsense gun laws may vary, they generally refer to measures such as raising the minimum age to purchase certain firearms and implementing secure storage requirements. For example, after the Parkland school shooting, Florida Governor Rick Scott signed a bill into law that raised the minimum age to purchase assault weapons and high-capacity magazines from 18 to 21. This was challenged by the National Rifle Association (NRA), but the state's attorneys argued that young adults are more likely to engage in impulsive and risky behaviours, making the restriction a reasonable method of addressing public safety concerns.
Secure storage is another key aspect of commonsense gun laws. A Politico poll from May 2022 found that 76% of Americans support requiring guns to be kept in secure storage, while only 15% oppose such a law. H.R. 7910, also known as the Protecting Our Kids Act, proposes providing tax incentives for gun owners to purchase secure storage lockers and establishing a federal gun storage law. Additionally, some states have implemented their own negligent storage laws, with criminal penalties for allowing children to access unsecured guns.
Other potential commonsense gun laws include restricting the sale of "bump stocks," which enable semi-automatic rifles to fire almost continuously, and strengthening background checks for gun purchases. While there is significant support for commonsense gun laws among Americans, the specifics of what these laws should entail are often unclear, and there is ongoing debate about how to balance public safety with the constitutional right to bear arms.
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The CommonSense Principle
In the context of law, the CommonSense Principle can inform legal frameworks and judicial interpretations. For example, in insurance law, the concept of "common sense" is considered in Western Europe, influencing the length and specificity of guarantee documents. Similarly, in product liability cases, the notion of "reasonable person" or "reasonableness" is applied in US law to determine whether a product was misused in a foreseeable manner, impacting the liability of manufacturers.
Overall, the CommonSense Principle serves as a reminder that effective policies and legal frameworks should be grounded in the diverse perspectives and collective wisdom of a society. By seeking broad consensus and considering the interests of various segments of the population, policies are more likely to be successful and equitable.
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Common sense and insurance law
In Western Europe, the concept of "common sense" is incorporated into laws, especially insurance law. This is reflected in the relative brevity of European guarantee documents compared to their American counterparts. In the US, if a customer misuses a product due to a lack of common sense, they may have the right to sue if the instructions for use did not explicitly prohibit the misuse. For instance, a couple sued a washing machine manufacturer after putting their cat in the machine to "give him a bath", resulting in the cat's death. The instructions did not specify that washing a cat in a washing machine could be fatal.
However, US law also considers the concept of "reasonableness", or what a reasonable person would do. In the aforementioned example, it could be argued that it is not reasonable to assume that someone would attempt to wash a live creature in a washing machine, and therefore, the manufacturer should not be held liable. This interpretation is supported by tort law, which states that manufacturers are liable for reasonably foreseeable misuse of a product.
In the context of insurance law, the question of "common sense" arises when discussing coverage and liability. Judges have become increasingly reluctant to supplement policy language with common-law considerations. However, in certain cases, common sense has been invoked to determine liability, such as in the 1995 ruling Allstate Ins. v. Forest Lynn Homeowners Ass'n, where a US district court in Washington state ruled that Allstate had to compensate a homeowners association for costs incurred to prevent decaying walkways from collapsing. The court reasoned that if a structure had to fall down before being deemed insurable, insured parties would have an incentive to let the structure deteriorate to that point.
In the UK, the Common Sense, Common Safety report, also known as the Young Report, was published in October 2010. It addressed a perceived compensation culture and made recommendations to streamline risk assessment requirements, improve accountability in health and safety decision-making by local authorities, and reform personal injury claims processes. The report also called for restrictions on the work and advertising of claims management companies and clarification that well-intentioned actions would not lead to legal repercussions. It received media attention, and David Cameron's cabinet accepted all of its recommendations.
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Frequently asked questions
Common sense laws are those that are based on the 'reasonable person' standard, which is often a question for the jury.
In the US, if a customer misuses a product because of a lack of common sense, they have the right to sue if the instructions for use were not clear. For example, a couple sued a washing machine company after putting their cat in the machine to "give him a bath".
Common sense gun laws refer to legislation that aims to reduce gun violence while respecting the rights of law-abiding gun owners. This includes legislation such as raising the minimum age to purchase assault weapons and requiring gun owners to keep their weapons secured and away from children.
The CommonSense Principle holds that broad support across diverse societal groups indicates wisdom. In other words, when a policy is supported by a diverse society, it is generally a better policy than one supported by a fervent minority.
Yes, in the case of Streit v. Covington & Crowe (2000), the California Court of Appeal held that an attorney making a one-time appearance is deemed to be associated with the attorney of record and is thus subject to the usual obligations an attorney owes a client. This decision was based on common sense and the rule that an attorney making a court appearance is presumed to be authorized to do so.
