Lawyers love a good ghost story. In his opinion in a famous case involving a dispute between a local council and a firm of contractors, British Law Lord Cyrill Radcliffe mused that during the proceedings, the parties had become “so far disembodied spirits that their actual persons should be allowed to rest in peace.” Free of the burden of ‘actual’ personhood, these spirits were transformed into “the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice” (Davis Contractors vs Fareham Urban DC [1956] UKHL 3).

Of all the metaphors Radcliffe might have chosen to describe a contractual quarrel over seventy-eight houses in Southampton, why ghosts? One answer lies in the history of the ‘reasonable man’, the weird and powerful figure judges call on to determine what an archetypal person would have known and done in the real-life circumstances faced by an actual person. Would the reasonable man have noticed the uneven step? Would he have checked under the hood, or pulled the trigger? Futures and fortunes routinely rest on how the court imagines the reasonable man. So, who is he?

Susanna Blumenthal’s Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (Harvard University Press, 2016) tells the story of the reasonable man, and broader legal understandings of the self, the mind, and legal responsibility, in nineteenth-century America. She shows how judges imbued the ghostly figures of the competent and the reasonable person with their own characteristics. The reasonable man was, in fact, the white, middle-class, property-owning, male head of household. In the nineteenth-century American republic, he was also widely considered the cornerstone of democracy. Radcliffe’s 1956 invocation of the ‘reasonable man’ was not a slip of the tongue, but a legacy of this Anglo-American jurisprudential tradition.

But the nineteenth century was a turbulent time in American history, marked by battles over slavery and sectional power, the violence of the frontier and the explosion of industrial capitalism. These changes tested judges’ faith that white, propertied men like themselves would always occupy the pinnacle of hierarchies of class, race and gender. Scientists warned that the universe was determined, and that individual autonomy and Americans’ prized self-governance were only illusions. Legal archetypes that had once allowed judges to substitute an “anthropomorphic conception of justice” for the messiness of human lives came to seem more like hungry ghosts than good spirits.

My essay, “Wondrous Depths: Judging the Mind in Nineteenth-Century America”, situates Blumenthal’s book in an emerging body of scholarship on the ‘self’ in modern Anglo-American law. This field brings wills contested in nineteenth-century New York and (to draw from my own work) homicide cases tried in courtrooms around the British empire into the same frame. Its insights are not just historical.

Today, we are increasingly alert to the ways that supposedly timeless and neutral concepts can reinforce structures of power and privilege. Legal understandings of ‘reasonableness’ and ‘competence’ remain central to common law jurisprudence. We use them to decide who counts as a person and what duties we owe each other. We use them to justify punishment. These ideas have a political history that haunts us still; we should tell it.

Read the article, “Wondrous Depths: Judging the Mind in Nineteenth-Century America” in Law & Social Inquiry.