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.

This chapter takes a psychological perspective on tort law decision-making, drawing on psychological theory, empirical research, and legal practices in tort litigation to assess the state of knowledge about decision-making in tort cases. It examines how plaintiffs decide to bring a lawsuit, how defendants respond, and the process of dispute resolution in tort cases. Most tort cases do not go to trial, but trial decisions remain significant as a framework for negotiations. The chapter also draws on psychological theory and research to describe how the judge and the jury as decision-makers resolve legal issues and reach liability verdicts and damage awards in tort cases. Psychological heuristics, biases, and other psychological phenomena affect decision-making in intentional tort, negligence, and strict liability cases, and judgments about liability and damages. The chapter closes with suggestions for further investigations of understudied topics in tort law decision-making.

This chapter develops an original account of political ethics, which details not only what it means to belong to a political community but also the normative contribution that politics makes to the lives of private individuals. Advancing discrete conceptions of authenticity and reasonableness, it discusses two fundamentally political duties that we owe to those who share our communities with us: duties that partly define our membership within those groups and inform the ethical value of politics as a discrete form of human activity. It also describes two ways in which politics enhances our ethical lives in instrumental terms, articulating a conception of political action that foregrounds its objective value. This argument forms the normative core of 'statehood as political community', the conception of state creation advanced within the first part of the overall text.

Simply being applicable could still permit far too much in terms of the extraterritorial reach of the EU’s data protection laws. The law of jurisdiction cannot solve all the present issues. It helps to solve conflicts in terms of sovereignty, but not fundamental rights. As such, this warrants a second-tier, additional set of criteria including degree of connection and interest-balancing as a rule of reason. The degree of connection between a regulated situation and the regulator, and interest-balancing are useful in assessing the legitimacy of the EU’s exercise of extraterritorial jurisdiction in the internet age, which throws traditional concepts of territoriality into question. Flowing from this, a rule of reason transpires. A State may legitimately exercise jurisdiction where it has an obligation to do so to protect a fundamental right, based on a permissive principle exercised reasonably, that is, after regulators have balanced different interests to identify the State with the strongest interest in regulating the situation, unless this harms the global interest.

Chapter 6 closely analyses the operation of investment treaty clauses promising full protection and security. The chapter shows how armed conflict affects both dimensions of this standard significantly. It suggests that the duty to not cause unlawful harm to foreign investors and their invesments should be interpreted as a duty to comply with international humanitarian law standards when applied to the conduct of hostilities. This approach, deriving from the interaction of human rights with humanitarian rules, avoids normative inconsistencies. The due diligence obligation to protect foreign investors and their investments from third-party harm, on the other hand, should be understood as inherently sensitive to prevailing conditions. The state’s (constructed) knowledge of threats to foreign investments, its capacities and resources to counteract these threats, and the notion of reasonableness should guide the analysis under the due diligence standard. The latter element introduces a corrective balancing exercise, opening the way to factor in overriding military or humanitarian concerns.

This chapter critically discusses the proceduralisation of due diligence obligations. The chapter defines proceduralisation as a process gradually eroding the ‘reasonable’ standard traditionally linked to due diligence and substituting it with specific legal parameters. Through proceduralisation, the content of due diligence obligations is ‘spelled out’ into a series of sub-duties, tecnical standards and direct obligations (including procedural ones) whose fulfilment is required for assessing compliance with the standard of due diligece of the ‘principal’ obligation. The first part of this chapter critically explores this phenomenon, arguing that proceduralisation through interpretative practice raises challenges and comes close to creating new legal rules. The second part illustrates proceduralisation through two case studies taken from international environmental protection and due diligence obligations in international human rights law. The chapter argues that the proceduralisation of due diligence obligations fundamentally tests their dogmatic structure by affecting their nature and content.

This chapter explores how due diligence obligations operate in pratice and how their content is determined. The first part explores the factual conditions affecting the scope of a state’s duty to act with due diligence, which are identified in power over the source of risk and knowledge of the risk. The chapter critically discusses the concept of power of the source of risk linked to due diligence and explains the difference between this power and similar notions, like control, influence and jurisdiction. The chapter then argues that the other condition shaping the scope of a state’s duty to act with due diligence is knowledge of the risk and links this knowledge to the concept of state fault. The second part of the chapter discusses the legal and factual parameters affecting the content of due diligence obligations. After thoroughly appraising the concept of reasonableness, the set of variables influencing the degree of diligence expected of a state are identified in: the degree of risk linked to the primary rule; the nature and value of the legal interest protected by due diligence; the level of state capabilities; and the level of state control over the source of risk.

This chapter explains the concept of reasonable multiculturalism. Building on the Rawlsian notion of reasonableness, and on Kymlicka’s formulation of multiculturalism, the mechanisms for reconciliation between liberalism and multiculturalism are outlined. What are the boundaries of multiculturalism within the framework of liberal democracy? What are the boundaries of state interference in the business of minority cultures whose norms and practices are at odd with liberal democracy? Reasonability assumes acceptance of the underpinning shared principles. Cultures that do not adhere to these principles are perceived as less reasonable. The extent of reasonability varies. But lacking reasonability does not immediately entail that the liberal majority should intervene in the business of the subcultures. Interference is warranted to restore justice. The chapter discusses the concept of mutual respect, distinguishing between two forms of cultural pluralism – ‘multination’ and ‘polyethnic’ states – and between two kinds of rights that a group might claim: the first involves the right of a group against its own members, the second involves the right of a group against the larger society. Furthermore, the nature of liberal tolerance and the mechanisms of deliberative democracy are explained, the latter instrumental for resolving disputes in a liberal democracy in a civil, non-violent way.

This chapter presents the story of how proportionality became a core concept in English public law. This is a story of continuity and change. It is only since its connection to European law during the 1980s that proportionality acquired conceptual autonomy and was distinguished from the common law concept of reasonableness. While its application in domestic judicial review was rejected during the 1990s, the promoters of proportionality sought continuity between the common law and European human rights standards, among them proportionality. Since the incorporation of the convention in the domestic sphere, proportionality applies as a different head of review from irrationality. As a prong-structured test, it is very akin to the global proportionality model and it involves a significant extension of judicial powers. Still, the doctrine of deference ensures that the role of courts remains different from the one ascribed to the primary decision-makers.

This chapter presents the significant influence that British administrative law had on Israeli administrative law – starting with the law of Mandatory Palestine, and then dealing with the gradual process of independence which has developed since the modern State of Israel was founded in 1948. The influence of British administrative law has been one of the most enduring legacies of British Mandatory rule in Palestine. At the same time, the Israeli Supreme Court has allowed itself a significant degree of independence in developing on these traditional principles. This process of independent development has intensified since the 1980s, and even more so following developments in the area of constitutional law since the 1990s.

The constitutionalisation of Irish public law – first on independence in 1922 and then in 1937 on the adoption of the Irish Constitution – has had a marked effect on the development of Irish administrative law. My two objectives here are, first, to describe the constitutional influences on the development of Irish administrative law and, second, to demonstrate that Ireland has an indigenous administrative law. I begin in Part I with a brief historical introduction before moving in Part II to a discussion of the influence of the Constitution. In some areas, notwithstanding the adoption of the Constitution, legal life has gone on as before. The supervisory role of the superior courts has continued mostly unaltered, despite constitutional language that might be thought to justify a more intrusive judicial review jurisdiction. The law in relation to procedural fairness has been constitutionalised – and has a bespoke term, “constitutional justice” – but is not markedly different in substance from the English equivalent. However, there have been some important changes. With sovereignty residing in the People, rather than the Crown, the prerogative has been held not to have survived the transition to a new constitutional order. The permissible scope of delegation of power by the legislature has also been circumscribed. The constitutionalisation of judicially enforceable fundamental rights, meanwhile, meant that Irish administrative lawyers followed a ‘rights-based’ approach before their counterparts elsewhere in the common law world began to think in such terms. Finally, even though the supervisory role of the superior courts remains intact, it now has constitutional protection, such that limitations on access to judicial review are strictly policed and, potentially, unconstitutional. In Part III, I will tentatively suggest that the existence of the Constitution, and thus of an identifiably indigenous Irish administrative law, has prompted Irish judges to be self-confident enough to refuse to follow settled English law. There are some important areas where Irish administrative law has not tracked English administrative law, most notably in relation to error of law and procedural exclusivity (which has had a particular effect on the development of the law of legitimate expectations). In these areas, the Irish courts have operated in the shadow of English law but have sought to develop an indigenous approach.

At first glance, administrative law in Canada, where courts regularly defer to administrative decision-makers’ interpretations of law and judicial review of administrative action is organised around the concept of reasonableness, is very different to administrative law in England, where courts do not defer to administrative interpretations of law and prefer to conceive of the justification for judicial oversight of administrative action in terms of grounds of review and jurisdictional error. One might think, based on this first glance, that the differences must be attributable to deep-seated disagreement about the nature of judicial power and the appropriate allocation of interpretive authority between the branches of government. One might even suspect that such disagreement must rest on long-settled historical foundations. I will argue, however, that the difference between Canadian and English administrative law is best explained by relatively recent accidents of history. Indeed, I will suggest, a prolonged period of divergence may be coming to an end, with the Transatlantic rise of reasonableness review ushering in a new era of convergence. I will develop this argument by tracing the pattern of divergence and convergence in Canadian and English administrative law from the 1970s to the present day. From the common starting point identified in Part I, the two jurisdictions diverged dramatically between the 1970s and 2000s, as I will explain in Part II. Since then, the administrative law of the two jurisdiction has converged to some extent, as outlined in Part III. One of the implications of my argument is, as I discuss in Part IV, is that further convergence in the future is possible. Moreover, a corollary of this argument is that there is room for fruitful comparisons of English and Canadian administrative law. My message, to those who fear – for whatever reason – that “there be dragons”, is that they can safely venture forward in an Anglo-Canadian comparative administrative law endeavour. A reader interested in undertaking comparative analysis might well conclude that the nature of judicial power, the appropriate allocation of interpretive authority and long-settled historical foundations are substantially similar in both jurisdictions.

The sixth chapter applies the analytical framework for due diligence obligations to the field of human rights protection. The individual components of due diligence obligations are analyzed with regard to the specific risks and problems of human rights law. It addresses how knowledge of human rights risks can be established, how resource constraints alter human rights obligations in times of conflict and economic recession, and what reasonable measures of protection are required. Conclusions from the previous chapter are consulted in order to decide whether due diligence concepts and methods developed in other fields of international law might be fruitfully applied to the area of human rights protection. When analyzing the application of human rights due diligence obligations though, the chapter will also reveal that the implementation of such obligations is often hampered where states lack sufficient capacities to effectively regulate and control harmful non-state conduct.

The fourth chapter develops an abstract analytical framework of the different components of an international due diligence standard. It seeks to deduce those elements which due diligence obligations contain generally and irrespective of their application to specific fields of international law. With knowledge, capacities, and reasonableness three major components are identified: If a state knows of potential violations of international law, it is obliged to employ the reasonably available means at its disposal to prevent such violations or to sanction them should they occur nonetheless. The chapter then discusses common problems inherent in the application and implementation of due diligence obligations. Most notably, it elaborates on how the foreseeability threshold might be overcome; how the problem of diverging capacities could be addressed and whether all states have to adhere to the same standards of diligence; and finally how the vague and broad notion of reasonableness can be given substantial meaning.