Think of a tree. The image that comes to mind may look a lot like a favorite tree from your past, or one you saw today. An enduring philosophical problem is to understand the concept of “tree” separate from specific trees you have known. Many legal systems routinely ask judges and jurors to perform a similar abstraction, by asking not what they think about a case but, “what would a reasonable person conclude?” This abstraction invites a powerful critique: does the decision-maker always import bias by who they imagine the “reasonable person” to be? In an ambitious but remarkably efficient volume, Valentin Jeutner aims to relay the complicated and continuing life of the Reasonable Person. In doing so, Jeutner defends this device: the reasonable person standard is a perspective-taking mechanism than infuses empathy into legal decision-making.
As signaled by the title, Jeutner imagines this developmental account as a “biography,” a conceit that other authors have used to give “life” to inanimate objects (e.g. water), cities (London), the Earth and Universe, and more. Although the format’s application to the history of a legal concept might be clichéd, for the “reasonable person” it seems fitting: it is a person, after all, who has grown through legal discourse, and its story is worth telling. For his part, Jeutner is appropriately cautious about the limitations of applying a biographical approach to a legal standard that transcends geography and centuries.
Biographies almost always proceed chronologically. Less often, they begin with their subject’s ancestry. This is where Jeutner starts, with the strands of DNA that begin to combine in the ancient world. Egypt, Greece and Rome all had personified legal standards, though with considerable variation. The geru maa (“silent one”) of Ancient Egypt, for example, made the calm, self-controlled, and wise person the standard for conduct. The Greek spoudaios and Roman paterfamilias were idealized standards that were often linked to those already in-power – male and propertied. Much remains unclear about how these early concepts worked in practice, and so Jeutner cautions that the genetic code of these early paradigmatic figures may bear only a weak resemblance to modern conception of the Reasonable Person.
The Reasonable Person’s biography hits its stride in Chapters Two and Three, as Jeutner tells the birth story of the concept in the Common Law world of 18th-century England (p. 22). Jeutner’s socio-legal approach looks to the entanglement of several conditions, including economic, intellectual and literary. For one, industrialization converged with the desire of the Scottish Sentimentalists to locate the vantage point of an impartial spectator. The reasonable person could be imagined as both relatable and objective, situationally versatile but “functionally stable and predictable” (p. 49). Of course, invocations of “reasonability” in law invite skepticism about the standard’s inherent subjectivity. When, in 1903, the reasonable person became associated with “the man on the Clapham omnibus” – a regular mode of transport for the urban middle class in London – the figure was explicitly gendered and definitely not “average.” Jeutner finds dynamism in the history, however, such that the figure can take on different qualities. At a minimum, he argues, it forces judges to at least respect the perspectives of others, thus acting “as a bulwark against prejudicial, subjective assessments” (p. 78).
The best test for this argument comes in Chapter 4, taking the Reasonable Person to the colonies, where British judges confronted what they regarded as ignorance and superstitious beliefs. In an intercultural setting, Jeutner concedes, the concept does not promote empathic judgments. He acquits the concept, however, by observing that judges sometimes did conclude that the reasonable person standard required the perspective of the local community rather than an Englishman. In several case studies, Jeutner finds the concept itself dynamic – yet wielded by judges who turned it into a static, universal norm. While this “bad apple” defense deflects blame away from the standard itself, Jeutner is persuasive that the reasonable person remains the most useful balance between objectivity and subjectivity in colonial contexts.
Although Chapter 5 threatens to break with the chronological development promised by a biography, Jeutner’s turn to the battlefield begins with a case tried at Nuremberg and presents the reader with problems that feel urgent today. True to his interdisciplinary sensibilities, something new – a psychological dimension – comes to the fore. Who is the reasonable person in the context of war? Is it a reasonable person wearing a military uniform or a soldier with a “different normative cosmos” (p. 115)? But what’s more, how can the military be asked to empathize at all, when its very job is to kill? The battlefield raises existential questions for the legal standard, and human empathy again faces threats of extinction in Chapter 6’s discussion of technology and AI in the future. While his analysis in this chapter is necessarily more abstract and speculative, lacking case studies, Jeutner foresees that the reasonable person standard, which was always at least partially normative, may be supplanted by data showing “empirically verifiable average behavior” (p. 154). The crossroads we now face is made plain: the reasonable person standard is “intimately connected to the humaneness” of both subject and decision-maker (p. 142), and “reasonable AI” is not that.
But, as Jeutner notes, “the reasonable you” constructed by data in the near future would produce personhood by extinguishing the need for empathy. A future with data-driven portraits of behavior diminishes the need to take the perspective of another. In a brief conclusion chapter, Jeutner urges that we choose to retain empathy by imagining legal persons who are human, fallible, imperfect and, ultimately, social. Behavior is contextual, and by being indeterminate except through the perspective-taking exercise it produces, the reasonable person standard facilitates “a more tolerant, inclusive, and human” system of law (p. 174). Jeutner wryly recognizes that this conclusion may undermine his “biography” framework, in that he has not provided concrete information about the identity of his subject. So be it, because overall, the portrait he has drawn, and the vision of law that Jeutner brings to the conversation is humane and most welcome. With an interdisciplinary reach and writing that is unfailingly measured, Jeutner has given us a socio-legal study worth embracing.
