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2 results

The Reasonable Person
  • A Legal Biography
  • Valentin Jeutner
  • Published online:
    30 May 2024
    Print publication:
    06 June 2024
  • Jeutner argues that the reasonable person is, at heart, an empathetic perspective-taking device, by tracing the standard of the reasonable person across time, legal fields and countries. Beginning with a review of imaginary legal figures in the legal systems of ancient Egypt, Greece, and Rome, the book explains why the common law's reasonable person emerged amidst the British industrialisation under the influence of Scottish Enlightenment thinking. Following the figure into colonial courts, onto battlefields and into self-driving cars, the book contends that the reasonable person invites judges, jury-members, and lawyers to take another person's perspective when assessing their own or another person's conduct. The perspective of another is taken by means of empathy, by feeling what others might feel in a particular situation. Thus construed, the figure of the reasonable person can help us make more accurate judgments in a diverse world.

  • 2 - New Fictions Defined

  • Liron Shmilovits, University of Cambridge
  • Book:
    Legal Fictions in Private Law
    Published online:
    11 January 2022
    Print publication:
    06 January 2022, pp 48-110

  • Summary

    This chapter proposes a definition for legal fiction. The problem of definition has divided scholars into multiple camps and held back progress. The definition proposed here is a compromise which seeks to preserve precision while covering the true range of fictitious devices. My definition is composed of two limbs: Hard Fiction and Soft Fiction. In developing this definition, I address a range of theoretical issues. I rebut arguments by Vaihinger and Kelsen that fictions do not exist. I discuss fictions from a linguistic perspective. I discuss the relationship between fictions and rules, and between fictions and counter-factuals. Also explored are contributions to the definitional debate by Fuller, Olivier, Ross, Chiassoni, Del Mar and earlier thinkers. The Chapter concludes with an application of the proposed definition in two case studies: the reasonable man and volenti non fit injuria. I argue the latter is a Soft Fiction and the former is not a fiction.