The introduction begins by acknowledging that the reasonable person is not just a powerful legal concept but also a legendary legal figure that is little understood. It explains briefly how the concept operates in practice and introduces the book’s core argument concerning empathetic perspective taking. Outlining the structure of the book, the introduction then proceeds to addressing the limitations of the analysis and the unique challenge of setting out to write a biography of the reasonable person without either caricaturising or fetishising it.

Chapter 3 focuses on the application of the reasonable person in the nineteenth and twentieth centuries. The chapter begins by considering why the reasonable person is frequently placed on means of public transport. It argues that the reasonable person’s presence on the omnibus means that others can see it and that the reasonable person itself sees others. The chapter then considers whether the standard of the reasonable person was meant to be an empirical standard or a standard controlled by the courts. It does so by asking whether the idea was that one could actually encounter the reasonable person on the Clapham omnibus. Contrasting the concept of the reasonable person with the concept of the average human person proposed by the Belgian sociologist and astronomer Adolphe Quetelet, the chapter establishes that the reasonable person was meant to be a court-controlled standard. Finally, the chapter shows how the standard has historically been construed exclusively in male terms. It addresses the discriminatory potential of the standard and acknowledges that the reasonable person concept has often been applied in a manner that excludes anyone who does not share the characteristics of the male, white, middle-aged judge who applies the standard.

Chapter 2 focuses on the emergence of the modern concept of the reasonable person in nineteenth-century Britain. It argues that this development resulted from the legal and economic needs of the industrial revolution and was informed by the metaphysics of the Scottish sentimental Enlightenment. The chapter’s point of departure is the case known as Blyth v The Company of Proprietors of the Birmingham Waterworks, one of the first cases to discuss explicitly modern law’s reasonable person. Distinguishing between a rational Enlightenment and a sentimental Enlightenment, the chapter then shows that the underlying rationale of the reasonable person relies heavily on the sentimental Enlightenment, namely on David Hume’s and Adam Smith’s thought on the importance of empathy, judgement making in relation to the feelings of others, the incomplete understanding of morality that can be gained from objective reason, and the importance of a human common sense. The third section explains how the industrial revolution and the sentimental Enlightenment influenced the life of Baron Alderson, the judge who oversaw Mr Blyth’s case against the Birmingham Waterworks.

This chapter explores the reasonable person’s encounter with entities that possess artificial intelligence (AI). A discussion of this encounter is particularly important, since it has been argued that the advent of AI will lead to the demise of the reasonable person. The first section focuses on the ability of the reasonable person standard to assess the behaviour of machines or algorithms that act on behalf of humans and lack autonomous decision-making capacities. The second section considers proposals to replace the reasonable person standard with a reasonable robot or reasonable AI standard. The section also asks to what extent the reasonable person standard can be used to assess the behaviour of autonomous digital agents that act autonomously. The third section discusses contemporary proposals to subjectivise law through big data, in a manner that would dispense with the need for a reasonable person standard, since everyone would be measured with reference to their own personal standard.

This chapter considers how and in what contexts the reasonable person standard was applied by the selected colonial courts of the British Empire. The key question is whether the reasonable person imported from England remained English in substance – whether it continued to resemble a man on the Clapham omnibus – or the courts tailored the standard to the specific circumstances before them. As the first section shows, there are many cases in which the reasonable person was equated with an Englishman. This suggests that the standard was static in nature. However, the second section of the chapter complicates this conclusion by introducing numerous cases and settings in which the standard was adapted to specific, local contexts – sometimes so successfully that local variants of it developed. Drawing together the first two sections, the final part considers the nexus between a standard’s resemblance to the people to whom it is applied and the authority of law.

This chapter explains that the reasonable person was not the first anthropomorphised legal standard. The idea of model characters can be traced back to the oldest documents of humanity. The chapter introduces three of these ancient ancestors of the reasonable person: the silent person of Egypt (geru maa), the earnest person of Greece (ho spoudaios), and the male head of a family in ancient Rome (paterfamilias). There are many other ancestors of the reasonable person, and at least implicit anthropomorphised standards of behaviour could probably be found in any society at any time. The three concepts here are presented only as examples, and because they form part of one Mediterranean context in which the ancient Egyptians probably influenced the ancient Greeks, who in turn influenced the Romans, whose influence on contemporary European law and on the systems derived from it can still be felt. Each of the three figures introduced in this chapter deserves its own biography and the analysis offered here remains fragmented. Nonetheless, the selected aspects of the lives of the geru maa, of the spoudaios, and of paterfamilias foreshadow many of the questions, tensions, and challenges with which the common law’s reasonable person still struggles today.

The Conclusion argues that the reasonable person possesses an essence that can be traced across time and across the different jurisdictions we encountered. This essence concerns the concept’s fundamental acceptance that ours is always just one perspective among many and that the best way to understand and assess what others think, do and feel is to empathise with those others. Since the standard is not always understood or applied in this manner, the Conclusion offers a restatement of the function and rationale of the common law’s most illustrious character; the aim is to contribute to the realisation of the concept’s potential and to make it easier to identify instances of misuse. The section unfolds in three parts, which correspond to the three steps of judgement making through empathetic perspective taking: the intention to take the reasonable person’s perspective; the assumption of the reasonable person’s perspective; and the making of a judgement by reference to the reasonable person’s perspective. Ultimately the Conclusion argues that the concept of the reasonable person has significant potential to facilitate the making of tolerant and humane judgements in a diverse, globalised and dynamic society, provided that one remembers that the reasonable person is always someone else.

This chapter makes the claim that Giorgio Agamben’s Homo Sacer project is suffused with explicit and implicit references to Johann Wolfgang von Goethe’s Faust. It begins by locating Agamben’s task within and from international law, then relates how the mysteries that he seeks to unravel therein are central to his concerns generally and not just specifically to Homo Sacer.

International criminal law is replete with metaphorical references in one form or another to the decidedly non-legal but at once theological and, more to the point, literary devil. This is because the references to the devil are secular appropriations of an originally religious term. In examining this issue, this chapter owes a huge theoretic and methodological debt to Giorgio Agamben’s concept of the paradigm, and his take on the theory of signatures, both of which retain a certain ‘capacity for elaboration’. Agamben somewhat counter- intuitively makes the point that ‘secularization acts within the conceptual system of modernity as a signature, which refers it back to theology’. Agamben’s work admittedly does delve deeply into theological concepts, but the focus is more on their decisive deployment in secular contexts rather than their systematic theological development over time.

In that spirit, this chapter advances the ‘Faustian pact’ as an exemplary paradigm with legal utility, historically borrowed from literature but originating in religion and, as a consequence, still bearing that originally religious signature that the law could never quite eradicate or completely repress, even as it presses that paradigm into service.

This chapter engages with the work of Giorgio Agamben and American literary figure Herman Melville to conclude that the most effective antidote to political violence is not better violence, but better politics. It does this through the admittedly risky and controversial argument that the figure of the slave within the philosophical schematics of Agamben’s work counterintuitively paves the way to an authentic freedom that is not underwritten by violence. The chapter begins by demonstrating and outlining aspects of Agamben’s engagement with slavery. It then turns to Melville’s work to discuss the various alternatives to violent politics that Agamben could proffer as models of emancipatory politics. The model of Bartleby that Agamben sources from Melville is then used to show how to escape the strictures of the office (per Agamben’s take on that notion) with specific reference to the office of master in the master–slave dialectic.

The Use of Bodies, opens with an extended discussion of slavery.1 Prior to this, an apparent omission often cited with regard to Agamben was his supposed neglect of slavery in favour of an obscure figure of Roman law, the ‘sacred man’, or homo sacer. Antonio Negri expresses this as ‘resistance is interpreted by Agamben as passivity rather than as rebellion, represented by Bartleby rather than Malcolm X, by homo sacer rather than the slave or the proletariat’. Those pointed criticisms by Negri and others concerning Agamben’s valorisation of passivity over resistance, exemplification of Bartleby rather than Malcolm X and preferring the homo sacer to the slave or the proletarian are the impetus and starting point for this chapter’s argument. The discussion of slavery in The Use of Bodies might very well be a response to the criticism. However, whether it was included to amend a supposed omission or merely to amplify or render explicit something that was already present in the work is less clear. This chapter favours the latter view.

Human medical experimentation is profoundly haunted by moral ambiguity. On the one hand, prominent Nazi doctor Eduard Pernkopf ’s book of anatomy based on unlawful experimentation on concentration camp inmates – despite being out of print and commanding thousands of pounds sterling in price – is still in current use by surgeons. On the other hand, although the scientific utility of the knowledge gleaned might well be clear, it nonetheless depended upon utterly dehumanising its subjects due to the absolute power that was wielded over them. Thus, human experimentation sits right at the junction of Michel Foucault’s inseparable power/knowledge dyad. Indeed, Holocaust survivor Olga Lengyel observed first hand that ‘Since they [Nazi doctors] were free to do whatever they wished, they decided to experiment on these [human guinea pigs at Auschwitz Birkenau] people’. As will become increasingly clear below, these two competing axes invariably coincide in unlawful experimentation, and law is at a loss to sever them. Xavier Aurey notes law’s failure ‘to address one of the most difficult issues in clinical trials and human experimentation: the almost unavoidable context of exploitation of any situation where a person is used as an object for the good of others’.