as to what is reasonable care or a reasonable price is often
declared to be a matter not for the court but for the jury to decide,
i.e., it is not to be deduced from any settled principle but is a
question of what the average thoughtful man, who considers other people
as well as himself, would do under the circumstances. A glance at some
of the judicial definitions of such phrases as "reasonable care,"
"reasonable doubt," "reasonable law," as brought together in _Words and
Phrases Judicially Defined_, illustrates this view. We get a picture not
of any definite standard but of such a process as we have described in
our analysis, namely, a process into which the existing social
tradition, the mutual adjustments of a changing society and the
intelligent consideration of all facts, enter. The courts have variously
defined the reasonable (1) as the customary, or ordinary, or legal, or
(2) as according with the existing state of knowledge in some special
field, or (3) as proceeding on due consideration of all the facts, or
(4) as offering sufficient basis for action. For example, (1) reasonable
care means "according to the usages, habits, and ordinary risks of the
business," (2) "surgeons should keep up with the latest advances in
medical science," (3) a reasonable price "is such a price as the jury
would under all the circumstances decide to be reasonable." "If, after
an impartial comparison and consideration the jury can say candidly they
are not satisfied with the defendant's guilt they have a reasonable
doubt." Under (4) falls one of various definitions of "beyond reasonable
doubt." "The evidence must be such as to produce in the minds of prudent
men such certainty that they would act without hesitation in their own
most important affairs." There is evidently ground for the statement of
one judge that "reasonable" (he was speaking the phrase "reasonable
care," but his words would seem to apply to other cases) "cannot be
measured by any fixed or inflexible standard." Professor Freund
characterizes "reasonable" as "the negation of precision." In the
development of judicial interpretation as applied to the Sherman Law the
tendency is to hold that the "rule of reason" will regard as forbidden
by the statute (_a_) such combinations as have historically been
prohibited and (_b_) such as seem to work some definite injury.

III

The above view of the function of intelligence, and of the synthetic
character of the conscious pro