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University of New South Wales Law Journal Student Series |
HOW TO REMOVE A ‘NORMAL’-SIZED STAIN FROM THE SOCIAL FABRIC: INTERSECTIONS OF LAW, BIOLOGY AND UNREASONABLENESS
ISABELLA ZILESKI*
I INTRODUCTION
You want to watch out for the [words] whose influence is felt everywhere, but whose location and operation remain somehow invisible.[1]
The realms of law and medicine profoundly shape our understanding of what is considered ‘normal’. Medical systems define and uphold standards of physical and mental health, guiding individuals in their pursuit of well-being and empowering them to make informed decisions. Legal systems, on the other hand, create benchmarks for human conduct, establishing norms for behaviour and ensuring compliance through laws and regulations. Both systems share a common goal: to set societal norms and expectations that guide individual actions and societal functioning. Together, they act as the invisible architects of society, governing our actions – what we do and don’t do – and shaping how we perceive ourselves and others. However, the infiltration of neoliberal ideologies into the social fabric has led to a profound shift in these systems expectations, by embedding economic principles into the very concept of normalcy. This article explores how neoliberal ideologies influence definitions of normalcy by addressing two pivotal questions: First, how does medicalisation under neoliberal regimes commodify human diversity and perpetuate inequality by turning personal behaviours into marketable attributes? Second, is law the liminal space where these medical and economic definitions are operationalised?
This article begins in Part II by unpacking the concept of neoliberalism to provide a critical lens for understanding how economic principles have penetrated both medical and legal systems. Part III traces the genealogy of the term ‘normal’ exploring its construction within social contexts. Part IV critically examines the medical system, focusing first on the institutional discourse and classification systems that reinforce medical standards of ‘normalcy’, and second exploring the concept of medicalisation to highlight how personal behaviours are commodified under neoliberal regimes.
In Part V, the focus shifts to the legal system, examining the concept of ‘reasonableness’ within the context of neoliberal ideologies, highlighting its economic underpinnings. Part VI explores the convergence of medical norms and legal bias, offering a practical application of the reasonable person test, focusing on the exclusion of ‘non-conforming bodies’, which are perceived as ‘non-contributory’ in a neoliberal framework.
Part VII critiques the rationality of applying economic logic to human conditions, challenging the reasonableness of the ‘normal’ standard amidst ongoing medicalisation. It questions the continued reliance on the ‘reasonable person’ out of tradition, while examining the societal costs of maintaining such an approach. The article concludes by advocating for holistic reform, calling for a re-evaluation of what constitutes ‘reasonable’ in the face of a diverse society.
The article ultimately contends that the redefinition of normalcy and the expansion of medicalisation under neoliberalism not only tailor individuals to fit economic roles but also diminish genuine human diversity and complexity. This analysis seeks to expose the exclusionary mechanisms embedded in neoliberal policy, arguing that the law plays a critical role in operationalising these norms and perpetuating inequality.
Neoliberalism, as both an economic theory and a philosophical ideology, can be broadly understood as the ‘extension and installation of competitive markets into all areas of life’, fundamentally reshaping social, moral, and political values.[2] Emerging in the 20th century, neoliberalism gained prominence through the policies of Ronald Reagan and Margaret Thatcher in the 1980s.[3] These leaders championed the idea that markets are the most effective mechanisms for organising human activities.[4] Rooted in classical notions of political and economic freedom,[5] neoliberalism advocates for minimal state intervention and the primacy of free markets.[6]
The core of neoliberal thought has been significantly influenced by Michel Foucault’s analysis of neoliberalism as a form of ‘governmentality’.[7] Foucault emphasises how neoliberalism reshapes human nature and social relations through market logic, constructing the individual as an autonomous ‘entrepreneur of oneself’.[8] He discusses the transformation of the individual into a ‘homo economicus’ – neoliberalism’s subject – thereby viewing all aspects of their lives, including personal relationships and health, through a lens of economic valuation.[9] Individuals are expected to take full responsibility for their well-being and success, perceiving life’s challenges as opportunities for personal investment and competitive advantage.[10] In this view, every personal attribute and action is evaluated based on market utility and self-improvement.[11]
David Harvey offers another critical angle, suggesting that neoliberalism marks a modern revival of early liberalism, albeit with a shift in focus.[12] After all, it takes the basic grammatical structure of the prefix ‘neo’ followed by ‘liberalism’.[13] Whereas classical liberalism emphasised trade, neoliberalism prioritises competition.[14] This new focus views humans not just as traders but as inherently competitive beings, necessitating state intervention to preserve competitive conditions and prevent monopolies.[15]
The impact of neoliberalism on self-perception is profound. It broadens the scope of economics to encompass all human behaviour. Thus, all human actions, from marriage to crime, can be analysed economically by weighing costs and benefits.[16] Labour, too, is redefined as ‘human capital’, where wages represent returns on investments in skills and education.[17]
Moreover, neoliberal policies reshape societal norms, stressing personal performance and relentless competition. Foucault argues that this ideology not only alters economic perceptions but also redefines personal identities and societal roles, extending to encompass human biology by commodifying aspects like health and education as investments in ‘human capital’.[18] Even seemingly fixed attributes, such as age, appearance, or physical abilities, are seen as challenges to be overcome with technological solutions like plastic surgery or genetic engineering.[19] In this view, the ‘homo economicus’ is an entrepreneur of oneself, constantly managing and investing in themselves to maximise economic potential.[20]
Neoliberalism’s pervasive influence on contemporary society reflects a profound shift in the relationship between the individual and the state, promoting a worldview where free markets are seen as the optimal solution for societal and economic issues.[21] This framework not only redefines the role of governmental intervention but also fundamentally alters the societal landscape, promoting a vision of human relations rooted in economic terms and market-driven values.[22]
III CONSTRUCTING THE NORMAL
To define the limits of acceptable variation in any domain, it is essential to consider why we feel compelled to draw these limits in the first place. What is the standard we are upholding, and why is it considered a standard at all? Lennard Davis contends that ‘to understand the disabled body; one must return to the concept of the norm’ as a social creation, not a natural baseline.[23] The real ‘problem’ lies not within the individual with a disability, but with the societal constructs of normalcy that create the ‘problem’ of disability.[24]
Norms are pervasive, shaping perceptions and expectations across all aspects of life, stretching from the banal to the profound - how tall one should be, how quick one should think, and how many steps one should take.[25] This idea of the prevalence of norms within society was echoed by Theodor Adorno, who suggests that a ‘psychoanalysis of today’s prototypical culture’ would diagnose our times’ ‘sickness’ as an obsession with ‘normality’.[26] Davis’ reflection on attitudes towards disabilities by the Ancient Greeks contrasts greatly with their recognition today, asserting that norms are ‘less a condition of human nature’ and more a ‘feature of a certain kind of society’.[27]
As in tracing the genealogy of the term ‘normal’ we locate a relatively nascent entrance into the lexicon of human thought.[28] The constellation of words ‘normal’, ‘norm’, ‘average’, and ‘abnormal’ all entered European discourse rather late,[29] with ‘normal’ only acquiring its current connotation around 1840 from its prior meaning of perpendicular, a nod to its geometric origins.[30] This evolution from a carpenter’s tool to a societal measure is as fascinating as it is telling.[31] The normative lexicon’s codification underscores the commodification of human existence that accelerated between 1840 to 1860, potentially suggesting that the social process of ‘disabling’ arrived with industrialisation.[32]
The beginning of this period also marked the rise of quantifying human attributes through the endeavours of Adolphe Quetelet, who applied statistical methods to human attributes, formulating the concept of the ‘average man’ based on the bell curve.[33] This approach, which has since been discredited,[34] transformed norms from abstract ideals to quantifiable measures, defining not just the median but also the boundaries of human traits.[35] Quetelet’s approach lent a scientific appearance to what are essentially subjective judgments about human worth and behaviour.[36]
Interestingly, Davis challenges us to pivot our gaze from the ‘norm’ by contrasting it with the earlier concept of the ‘ideal’, which dates back to the 17th century.[37] This distinction is crucial in understanding the transition from an aspirational ideal to a regulatory norm. The ‘ideal body’, as depicted in the tradition of nude Venuses,[38] represented a mythopoetic form of ‘unattainable perfection’ that, ‘by definition, can never be found in this world’.[39] This historical ideal contrasts greatly with today’s societal expectations, where the normative body is not only idealised but also expected, pushing contemporary individuals to constantly strive for this elusive perfection.[40]
The construction of normalcy in neoliberal contexts thus emerges not from statistical averages, but from a complex interplay of historical, cultural, and economic factors. These dynamics reveal that what is deemed ‘normal’ is more about the power structures and institutions that frame human variation, than about any true median of human traits. This examination of normalcy challenges us to reconsider the socially acceptable limits of biological diversity and question the constraints imposed by normative standards.
IV THE MEDICAL SYSTEM
A Analysis of Institutional Discourse
Upon delving deeper into the mechanisms by which societal norms are entrenched, it becomes apparent that the medical field plays a pivotal role in this process. The term ‘normal’ in medicine, frequently used in major diagnostic systems such as the Diagnostic and Statistical Manual (‘DSM-V’) and the International Classification of Diseases (‘ICD’), is more than a clinical category;[41] it is a powerful tool that shapes societal perceptions and defines the boundaries of acceptable biological variation.[42] In the DSM-V alone, the term ‘normal’ appears roughly 366 times, revealing its substantive normative influence.[43]
Typically, normality in medicine derives its normative force from statistical averages, which, by nature, are purely descriptive and lack intrinsic moral significance.[44] In statistical terms, a normal distribution describes data clustering around a mean, with outliers being rare.[45] This concept, however, does not inherently create a binary of normal-abnormal, nor does it impose normative values.[46] Nevertheless, such descriptive statistics are frequently misapplied to justify normative claims, transforming neutral scientific measures into rigid societal standards. As Paul Mason highlights, while statistics are crucial for scientific understanding, they become detrimental when used to legitimise labels that sort people into sub-populations, thereby reinforcing social inequalities.[47]
When wielded as a ‘blunt instrument’,[48] statistics can enforce conformity by instilling a fear of deviating from the ‘norm’, leading to the marginalisation and stigmatisation of those who fall outside these arbitrary boundaries.[49] The label of ‘normal’ often carries unjustified moral weight, disguising subjective societal norms as objective truths.[50] Therefore, it is essential to question and critically examine these so-called norms, recognising them for what they truly are: socially constructed categories that can perpetuate discrimination and inequality if left unchallenged.
These diagnostic systems do more than classify; they delineate the limits of normality with precise, albeit arbitrary, cut-offs.[51] By defining normality so rigidly, these systems effectively limit the full range of biological variation, disregarding the infinite continuum of human experiences.[52] As a result, ‘normal’ is far from a ‘neutral’ term;[53] it wields the power to enforce conformity, pressuring individuals to align with these established norms to avoid the stigma of being labelled deviant.[54]
The consequences of this categorisation extend far beyond diagnosis. It stigmatises those who fall outside the predefined boundaries, promoting conformity and marginalisation. This normativity is particularly evident in how medical discourse on normality affects those with disabilities, mental impairments, or ‘non-conforming bodies’, often leading to oppressive narratives and discriminatory practices.[55] For instance, as Elizabeth Reis argues, the medical insistence on binary sex classifications threatens the integrity of intersex bodies, which are characterised as ‘abnormal’.[56] Similarly, ‘normative assumptions’ about physical capabilities result in discriminatory practices against individuals with disabilities.[57] Additionally, Thomas Armstrong contends the standardisation of a ‘normal brain’ marginalises neurodiversity, transforming natural variations into pathologies and devaluing different cognitive abilities,[58] with the category of the abnormal serving as the ‘nucleus of various forms of discrimination’.[59]
This biological taxonomy in medicine thus emerges as a ‘powerful tool’ that not only diagnoses, but also discriminates, influencing both medical practice and social attitudes.[60] It implicitly shapes judgments about acceptable biological variation and reinforces societal expectations on bodily appearance and functionality. Accordingly, the medical systems role in defining normality has broad and profound implications, highlighting the need for inclusive recognition of human diversity that respects and recognises the full spectrum of human differences.
B Medicalisation: Towards a Point of Diminishing Returns
As societal expectations for efficiency and productivity increase, behaviours once considered within the range of normal human variation are increasingly seen as pathologies requiring medical intervention. Irving Zola defines medicalisation as the ‘process whereby more and more of everyday life has come under medical dominion, influence, and supervision’.[61]
Today, the modern drive for self-improvement heavily influences education and employment, fuelled by a shift towards the medicalisation of these areas. Mark Fisher and James Davies associate this trend with neoliberal capitalism’s tendency to commodify human behaviours and emotions to meet increased productivity demands.[62] This shift involves repurposing human behaviours and cognitive functions through medical interventions originally intended for healing, thereby aligning personal capabilities with market demands.
Building on this perspective, Ashley Frawley conceptualises medicalisation as falling into two broad phenomena: the medical reframing of common life events such as pregnancy and ageing, and, more critically, the pathologisation of deviance, where behaviours and beliefs previously seen as non-normative or socially problematic are subjected to medical scrutiny and control.[63] This commodification of deviance transforms natural human diversity into areas for economic optimisation, pressuring individuals to conform to market demands.
1 Deviance: Medicalisation of Education
Antonio Mautro’s investigation of the use of medication in educational environments deepens with Davis’ perspective on disability, where deviations from normal standards are seen as problems requiring correction, revealing an ableist bias within society.[64] This view is particularly evident in the diagnosis of Attention Deficit Hyperactivity Disorder in children and teenagers, where behaviours unfit for structured, productivity-oriented educational settings are pathologised, reflecting broader societal expectations.[65] Peter Conrad recognises this as the medicalisation of education, where diagnosis is based on the patient’s narrative and constructed around a set of symptoms ‘strictly related to the functioning of the student in the academic setting’.[66]
Talcott Parsons was likely the first to conceptualise medicine as an institution of social control.[67] His concept of the ‘sick role’ serves to ‘conditionally legitimate that deviance termed illness’.[68] For Parsons, illness is an inherently social and role-structured phenomenon.[69] There is an available social role for when individuals become sick – they adopt the ‘sick role’ – which ‘channels them to the doctor’.[70] Upon a doctor’s legitimisation of their illness, individuals are both ‘relieved of responsibility for the illness and freed from some or all normal duties’.[71]
Joseph Davis expands on Parsons’ theory, illustrating that illness, akin to crime, is a form of deviance from normative role performances and is thus disruptive to society.[72] In this vein, ‘it is a problem of social control’, with doctors acting as control agents who regulate ‘entry to the sick role’ and facilitate the reintegration of the deviant individual, not through punishment but through treatment.[73] In Davis and Parsons eyes, society uses medical professionals to manage and control individuals who deviate from normal functioning by categorising them as ‘sick’ and guiding them back to normalcy through medical intervention.
The sick role imposes obligations, requiring the individual to ‘seek to get well and comply with medical advice’, indicating that even while being excused from normal duties, the individual is expected to actively participate in their recovery.[74] The implications are significant, as illness arrives hand in hand with the obligation to return to ‘normal’ functioning, thereby maintaining social order and control.
Karen Bray, however, offers a critical view of this narrative.[75] She argues that embracing the ‘sickness stigma’ is to question the ‘demands of productive labour’ enforced by societal norms.[76] This is interesting when considering Parsons’ view that individuals are often ‘unconsciously motivated to seek illness (deviance) as a refuge from the strains and pressures of their normal roles’.[77] According to Parsons, ‘medical social control generally has positive effects for individuals and the social system’ by providing relief from such pressures.[78] In contrast to Parsons’ view, Bray underscores the duality of medicalisation in both alleviating personal burdens and perpetuating economic exploitation, exposing a deeper tension between health, societal expectations, and economic systems.
Medicalisation is not just an expansion of healthcare but a tool of neoliberal-capitalism, redefining normality to suit economic imperatives, proving that in the marketplace of life, even our ailments are commodities. As Davis argues modern perceptions of normality and disability, once shaped by the forces of ‘industrialisation’, are now commodified under the guise of medical expertise.[79] This reductionist approach not only misaddresses the social construction of deviance, but also transforms individuals into mere biological entities, ripe for the capitalist market.
2 Common Life Events: Medicalisation of Work
The pressures of constant productivity, once fostered in educational systems, have seamlessly transitioned into professional environments. Caroline Pulfrey and Fabrizio Butera identify these environments as realms where natural human limitations, such as fatigue, are not acknowledged as normal physiological responses but as barriers to productivity.[80] This scenario promotes the pathologisation of individuals who do not meet market standards, suggesting an alarming trend of medicalising normal biological processes to meet economic expectations.[81]
The trial of Modafinil, a medication originally prescribed for narcolepsy, now used to enhance alertness in sleep deprived doctors, represents an example of how human capabilities are increasingly harnessed to boost workplace performance.[82] By aiming to improve cognitive functions in demanding situations, Modafinil exemplifies a broader narrative of commodifying human potential for market optimisation, intensifying the neoliberal ethos as ‘the basic biological features of the human species become the object of a general political strategy’.[83]
The advent of pharmaceuticals and cognitive enhancers extends human capacities beyond traditional boundaries, prompting essential ethical debates about coercion and voluntary enhancement in the workplace.[84] These technologies, often marketed under the guise of ‘choice’, may pressure individuals to enhance themselves just to remain competitive.[85] This nexus of biology and economics underscores how neoliberal policies dissolve distinctions between ‘labour and life’.[86] In this commodified landscape, even the ‘normal’ is for sale, exposing it ‘to the harsh light of direct economic calculus’ – crafted not by nature, but by market forces.[87]
V THE LEGAL SYSTEM
Just as the medical field deploys the concept of ‘normal’ to define and enforce societal standards, the legal system relies on the term ‘reasonable’ to set benchmarks for acceptable conduct. This standard of reasonableness serves as the legal equivalent of medical norms, shaping societal expectations and guiding individual behaviours. The malleability of normality allows it to ‘feed’ and ‘span’ many areas simultaneously, reinforcing norms across various fields and creating a cohesive but often exclusionary network of societal standards.[88] The implication is clear: legal norms must be critically assessed to ensure they do not perpetuate a narrow view of normality, far removed from the realities of a diverse society.
A Analysis of Institutional Discourse
Turning to the definition of ‘reasonableness’, the ‘most prominent definition of reasonableness is worded in cost-benefit terms’.[89] It provides that an individual acts unreasonably if they take ‘less than the socially optimal level of care’.[90] Expressed as a formula,[91] it posits that a failure to take ‘economically justified precautions constitutes negligence’.[92] This economic model ensures that negligent parties are held liable, compelling them to internalise the ‘external costs of their inefficient actions’, thus fostering a system that deters inefficient and harmful behaviours.[93] Essentially, the economic perspective sees tort liability’s primary function as the prevention of unreasonable risks.[94]
While Justice Posner has championed this formula as a means of wealth maximisation,[95] Ronald Dworkin has criticised such a goal as normatively problematic.[96] Today, the consensus among law and economics scholars leans towards welfare maximisation,[97] suggesting a shift towards broader economic efficiency rather than mere wealth accumulation.[98] This evolution reflects a nuanced interpretation of reasonableness as emblematic of neoliberal ideals, where economic rationality guides legal standards and reinforces the broader neoliberal framework of maximising individual responsibility and minimising regulatory oversight.
1 The Reasonable Person
Examining the intellectual traditions of the law, particularly its construction of a hypothetical person to fashion a legal standard, offers insight into the law’s definition of so-called ‘optimal’ conduct by explicitly personifying these concepts. At the heart of this discourse lies the concept of the reasonable person, an ‘excellent but odious character’[99] that inhabits ‘every nook and cranny of the common law’.[100] This figure is central to judicial decisions, particularly in negligence law, where the actions of a litigant are compared to those of an idealised, prudent individual.[101] The assessment hinges on whether actions ‘depart’ from those expected of the reasonable person under similar circumstances, with deviations indicating ‘culpability’.[102] Through the ‘personification of this normative demand’,[103] the reasonable person transcends its role as a legal benchmark to embody an ‘anthropomorphic conception of justice’, deeply influencing how justice is perceived and administered.[104]
While the origins of the reasonable person are debated, many scholars trace its inception to Vaughan v Menlove,[105] which defined the precautions a ‘prudent man’ would take.[106] Some argue this early reference to a ‘prudent man’ can be traced to the influence of Quetelet’s inquiry into human nature and his concept of the ‘average man’, published just two years prior. This may suggest that despite Quetelet’s theory being disproven, legal standards began incorporating statistical norms.[107] This link may suggest a normative baseline for legal judgments that integrates statistical averages, highlighting how cultural and statistical norms influence legal definitions of reasonableness.[108]
To date, the reasonable person remains a central figure in the literary imagination of the common law, reassuring us with his very ordinariness.[109] Unsurprisingly, difficulties also arise in precisely defining the characteristics this figure possesses, and there persists significant debate as to how the reasonable person should be understood. However, what can be agreed on is that the ‘common law is obsessed with reasonable people’.[110] As Patrick Kelley and Laurel Wendt’s survey of contemporary pattern jury instructions records, this figure consistently exhibits three traits: ordinary reasonableness, ordinary prudence, and ordinary carefulness,[111] all aligned within the ‘middle of the bell curve’.[112] This illuminates the normative core of the reasonable person, underscoring the legal norm of what an individual ought to be. Mayo Moran notes that intertwining the concepts of ‘normal’ and ‘reasonable’ is thus expected, demonstrating how legal norms can reinforce societal inequalities by privileging certain behaviours.[113] As such, the reasonable person serves both as a legal measure and a cultural artefact, reinforcing normative values and ensuring the stability of legal and social norms, pivotal in both adjudication and societal expectations.[114]
2 The Man on the Clapman Omnibus
Initially conceptualised by Walter Bagehot and legally cemented in McQuire v Western Morning News Co Ltd,[115] the ‘Man on the Clapham Omnibus’ serves not just as an image of the reasonable person but as a conduit for examining the interplay between legal norms and neoliberal ideologies.[116] Derived from Bagehot’s ‘bald-headed man at the back of the omnibus’, this figure, in representing the epitome of ‘public opinion’, may have subtly morphed into a symbol of economic rationality under the guise of ordinariness.[117]
This portrayal, seemingly benign, embeds within it a distinct economic rationality. As the archetype of an ‘employable person’, the Clapham ‘clerk’ does not merely travel ‘by bus to work in central London’ out of necessity, but as a rational economic decision.[118] This commuter is positioned as the embodiment of neoliberal rationality – prudent, productive, and perpetually engaged in cost-benefit analyses of daily choices. Here, the commuter is not merely a passenger but a symbol of economic efficiency, a rational actor making optimal use of resources.
As Kenneth Gergen articulates, contemporary identities are increasingly moulded by market ideologies, where ‘each action and personal choice is seen through a lens of economic gain’, suggesting that the legal standard does more than dictate normative behaviour, it constructs the individual’s identity around market utility.[119] This assertion gains depth when considering the commuter’s daily routine is underpinned by economic decisions, thus aligning their ordinary persona with neoliberal values.
The implications of this alignment are profound. By positioning the Clapham commuter as the standard of legal reasonableness there is an implicit suggestion that reasonable actions are those that mirror the neoliberal ethos. Michael Hardt and Antonio Negri’s critique of ‘immaterial labour’ clarifies this point, suggesting that the legal construction of the reasonable person often mirrors the neoliberal emphasis on flexible, market-oriented human capital.[120] This clerk may effectively come to resemble a ‘living breathing homo economicus’, whose everyday decisions are underscored by a neoliberal logic that prioritises economic efficiency.[121]
This transformation of the reasonable person into a neoliberal subject reveals a deeper cultural penetration of market logic into the legal fabric. The archetype, while meant to represent the ordinary, subtly promotes a norm that is deeply entrenched in neoliberal values. It is not merely about embodying the average, but about endorsing a specific form of economic behaviour as the standard. This raises critical questions about the inclusivity and representativeness of legal standards. Are we, through our laws, endorsing a narrow view of human behaviour that aligns with neoliberal values?
VI CONVERGENCE OF MEDICAL NORMS AND LEGAL BIAS: A PRACTICAL APPLICATION
The application of the ‘reasonable person’ to those with disabilities or mental differences often exposes inherent biases and limitations, as it merges normative expectations with descriptive elements, complicating legal judgments when the real person diverges from this idealised ‘legal counterpart’.[122] Critics such as Moran argue that while aiming to depict an average person, the standard often reinforces societal stereotypes about what is ‘normal’ or ‘reasonable’.[123]
A Legal and Mental Discrepancies
While the reasonable person test typically accommodates physical ailments, it struggles to fairly integrate mental impairments or divergences, revealing deep-seated biases in the legal interpretation of reasonableness. Physical impairments are often more straightforwardly exempt from liability, and ‘temporary incapacities are more likely to receive leniency than permanent ones’.[124] Thus the ‘normal defendant’ who suffers from a sudden collapse or other ‘involuntary conduct’, as in the case of Scholz v Standish (where a bee sting caused a ‘loss of control’ leading to a crash),[125] will generally be excused from liability in negligence because the accident will be deemed as ‘unavoidable’.[126]
Conversely, mental impairments often do not receive the same leniency, despite reasoning capacities differing greatly from that of the ‘reasonable person’. In Adamson v Motor Vehicle Insurance Trust,[127] ‘insanity’ did not exempt the individual from liability because they were deemed capable of appreciating ‘the wrongfulness of their actions’.[128] Arguably reflecting a legal bias favouring temporary physical impairments over mental ‘deviations’ from the ‘normal body’. Moreover, the language used in legal judgments suggests temporary physical impairments are viewed as ‘involuntary’ and thus without fault, whereas permanent mental impairments are treated as if they are under the individual’s control.[129]
Even attempts to accommodate mental impairments, such as in R v Thomas, reveal the system’s inadequacy.[130] Extensive efforts to locate varied applications of the reasonable person underscore the limited legal recognition of mental variances.[131] Justice RA Hulme recognised the defendants mental capacity as being ‘so far removed from that of the vast majority of the community’ judging him against the standard of a reasonable person, a standard ‘that he could never hope to emulate’, would be ‘patently unfair’.[132]
The expectation for individuals with even moderate learning difficulties to adhere to a neurotypical standard, as noted in R v Robertson, may indicate the law maintains high expectations for cognitive functions that do not account for the full spectrum of human diversity.[133] This ‘invariant standard’, which Moran criticises is erroneously treated as enabling ‘us to properly demand of all and condemn those who lack’,[134] inadvertently perpetuates inequalities and overlooks the unique challenges faced by those with mental disabilities.
B Flexibility of the Reasonable Person
The treatment of impairments by the courts notably depends on whether they are mental or physical, and their relevance to the act in question. While the reasonable person often remains inflexible in accommodating the full extent of mental impairments, it readily adjusts to account for increased levels of skill. This raises two issues: firstly, the law is able to exercise adjustments to the standard to accommodate for traits, voluntarily acquired through specialised training, yet fails to apply this to reflect the reduced mental capacity of the defendant. Secondly, the law tends to represent only those in the middle or upper percentiles of a skill set, suggesting that it is not designed to acknowledge or reflect the capabilities of those at the tail end of the bell curve.
The exclusion of the neurodiverse persons begs critical questions regarding the underlying rationale for their lack of visibility within a legal system intended to mirror society. Is such exclusion linked to their perceived reduced capacity to contribute economically, as compared to neurotypical individuals? Moreover, is this exclusion fundamentally based on the law’s prioritisation of reflecting its neoliberal subjects? The flexibility of the reasonable person standard seemingly only actively accommodates those who embody neoliberal ideals, while neglecting those who do not.
VII UNREASONABLENESS
It is deeply troubling that society’s most vulnerable individuals are subjected to a legal system that fails to account for their unique conditions and needs. The objective reasonable person test, entrenched in neoliberal ideology, leaves too much to the mercy of market-like forces, assuming a fair distribution of justice much like economic gains. However, while free markets may achieve equilibrium in theory, the courtroom is no place for such principles. Here, the arbitrary application of an ostensibly objective standard exacerbates inequality rather than mitigating it.
Market forces take their legalistic form through the judiciary. The democratic ethos of ‘trial by one’s peers’, derived from the Magna Carta, champions the notion that juries should reflect the full spectrum of society, thereby infusing legal judgements with diverse perspectives.[135] In line with the human rights principles enshrined in the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’), which promotes inclusivity through non-discrimination and equal access to justice, the CRPD highlights the importance of human rights concerning jury composition, despite not explicitly mandating inclusivity.[136] This is vital, as each jury’s construction of the ‘reasonable person’ shapes the law anew,[137] and can inadvertently embed biases into the legal framework, despite the ideal of equality.[138]
Just as ‘trial by one’s peers’ has a long lineage, so too does the persistence of systemic barriers to jury inclusivity. While the Jury Act 1977 (NSW) in Australia does not take a blanket approach to excluding persons with disabilities from jury duty, procedural nuances often prevent their participation, thereby limiting the very diversity intended to underpin the judicial process.[139]
In practice, the mere fact that a potential juror is blind or deaf often renders them ineligible for jury duty, primarily due to concerns about comprehension and the involvement of an interpreter – a ‘13th person’ – in the jury deliberation room.[140] This issue was highlighted in Lockrey v Australia, where the court denied Mr Lockrey live steno-captioning, citing concerns over breaches of jury confidentiality.[141] Similarly, the ‘13th person rule’, which confines jury deliberations to the twelve jurors to preserve confidentiality and ensure a fair trial, proved a barrier in Beasley v Australia and JH v Australia.[142] In these cases, requests for an Auslan interpreter were rejected due to the challenges of relaying non-verbal evidence,[143] with arguments that ‘securing multiple interpreters for lengthy trials may be difficult’,[144] and costly,[145] highlighting a systemic reluctance towards inclusivity. The CRPD deemed such denials discriminatory, suggesting that confidentiality oaths for interpreters would be a reasonable accommodation.[146] However, the Australian High Court’s unanimous decision in Lyons v Queensland upheld the exclusion of jurors requiring interpreters, reinforcing strict adherence to jury secrecy in most jurisdictions.[147] These cases underscore the significant barriers to achieving jury diversity, suggesting it remains an ideal rather than a norm, illustrating the continued reluctance to prioritise inclusivity under the pretext of preserving the sanctity of jury deliberations.
Claims that deaf or blind jurors undermine the fairness of trials or that their inclusion would be prohibitively costly lack empirical support.[148] Research from the New South Wales Law Reform Commission shows that deaf jurors, with the assistance of interpreters, understand proceedings just as well as non-deaf persons.[149] Arguments for exclusion often rest on presumed financial burdens, yet Justice Hulme’s assertion that accommodating blind or deaf jurors would be prohibitively expensive is undermined by the Commission’s findings, which describe these costs as ‘minimal’ in the overall context of court expenses, proving ‘no cause for concern’.[150] Even if the costs were substantial, Mendelle QC argues that the democratic values central to the jury are ‘beyond’ monetary evaluation.[151] In the unreasonably economic instance these values were subjected to financial scrutiny, the analysis should encompass not only monteray factors, but also the democratic enrichment that inclusive participation brings.[152]
In Australia, 21.4% of the population lives with a disability,[153] yet people with disabilities represent over 39% of incarcerated offenders.[154] This stark overrepresentation highlights a systemic failure to accommodate those who deviate from the ‘norm’. Furthermore, with the percentage of the Australian population identifying as neurodiverse estimated to be around 30–40%,[155] it becomes clear that the ‘normal’ standard reflects not societal reality but a neoliberal construct. Individuals are pressured to self-improve to avoid deviance, revealing a legal system that fails to uphold its foundational pillars of fairness, access, and the rule of law. For those who fall outside the perceived norm, accessing justice becomes an almost insurmountable challenge. While the rule of law claims that no one is above the law, those who deviate are frequently not represented within it. This raises a critical question: how many individuals are incarcerated simply because the reasonable person test fails to reflect their reality?
As the ‘normal’ individual will likely turn to the medicalisation market to enhance oneself, it is important to consider how the law may further evolve to reflect these enhanced capacities. The reasonable person test’s refusal to consider the full spectrum of human diversity poses significant challenges. When neurotypical individuals enhance their capacities through medicalisation, the un-medicalised population risks becoming a marginalised minority. This static standard threatens to create a new class of disadvantaged individuals – the un-medicalised neurotypical – while intensifying the struggles of already marginalised groups. The likely outcome may reflect the test vertical flexibility in raising its standard to accommodate the enhanced capacities of the medicalised ‘normal’ population, thereby leaving the un-medicalised neurodiverse further disadvantaged. Alternatively, the shift towards widespread medicalisation may be the catalyst needed to drive fundamental changes in the reasonable person test, underscoring the necessity for the law to evolve in step with society’s diverse and dynamic nature. This situation raises a pivotal question: can the law, through the reasonable person standard, ever truly reflect society’s diversity?
Why then do we persist with a test that continually presents more challenges as society evolves? The reasonable person is deeply rooted in a narrow, discriminatory perspective. Are we merely clinging to it out of tradition? If so, at what cost? By holding onto this test, are we not perpetuating an outdated and exclusionary notion of normality that fails to serve the diverse fabric of contemporary society? The call for reform emerges not just a legal necessity, but a moral imperative.
A Proposing Change
The pervasive ‘normalcy’ in societal systems is not merely an invisible influence but a profound stain, embedding biases within society, particularly in legal and medical systems. To address this, a comprehensive approach is necessary, moving beyond mere reforms to dismantle neoliberal policies that commodify individuals and impose market-driven definitions of normalcy, perpetuating inequality.
This proposal seeks to dismantle the entrenched architecture of ‘normalcy’ that imposes arbitrary standards and barriers. At the heart of this initiative is the shift from viewing disability through lenses of ‘charity’ or ‘social welfare’ to recognising it as a matter of human rights.[156] As neoliberal thought has manifested to marginalise diverse individuals, portraying them as needing rescue from their conditions. However, returning to Davis’ perspective, the issue lies not within the disability itself but within a society that creates the ‘problem’ of disability.[157] Thus, addressing this is not a commendable deed, but a necessary rectification of societal failings. Redefining the approach, in turn, affirms that persons with disabilities are rightful bearers of rights, ‘on an equal basis with others’.[158]
1 Reasonable Persons Framework
Australia’s current legal system, with its inability to fully understand the complexity of human diversity, must be reformed towards a more subjective and inclusive standard. Central to this proposal is the redefinition of the ‘reasonable person’ to a ‘reasonable persons’ framework that embraces a spectrum of behaviours from diverse populations as reasonable. Laws must be human-centred; this shift from an objective to a subjective test in legal judgments must reflect the plurality of human experiences and safeguard against a monolithic standard.
Moreover, the method of enacting this reform is crucial. Diversity should not be left to the whims of market forces within common law. Instead, statutory codification must secure it against fluctuating social attitudes. It is vital to strike a balance where legal norms can evolve with societal changes without losing their protective core.
The challenge lies in incorporating these human-focused considerations into a system traditionally prized for consistency and predictability. However, the objective of the law must be to serve and protect all members of society, with acute awareness of the varied conditions in which people live. By revising the ‘reasonable person’ standard and infusing a nuanced understanding of human diversity into legal frameworks, society can advance towards a more just and empathetic future.
2 Interdisciplinary Approach
Bridging the divide between medical and legal disciplines is crucial for fostering a more equitable justice system. This integration allows legal standards to be informed by a nuanced understanding of diverse human conditions, thereby enhancing fairness and inclusivity in legal judgments. By formally embedding these medical insights into legal frameworks, accommodations for individuals with disabilities are transformed from ‘gracious accommodations’ to mandatory requirements, thereby ensuring equitable treatment under the law.
Establishing interdisciplinary panels within judicial frameworks would enhance the interpretation of ‘reasonable’ behaviour, especially in cases involving individuals with disabilities. These panels, comprised of independent medical professionals, psychologists, and social workers, would offer critical insights that refine judicial decisions. By shifting from a blanket approach to an adaptable framework, the legal system can ensure a focus on human diversity.
3 Jury Diversity
The composition of juries must actively reflect the diversity of the society they serve. While current legislation aims to prevent the explicit exclusion of diverse individuals from juries, it falls short in mandating their inclusion. Legislative reform is required to codify accommodations and develop laws that ensure mandatory jury diversity, proportionate to the society they serve, mirroring the actual demographic makeup of the community. Such legislative reform is vital, as it moves beyond merely preventing discrimination to actively promoting the inclusion necessary for a genuinely representative judicial process.
4 Cultural and Societal Shifts
This change must permeate not just legal and medical frameworks but also societal attitudes and daily interactions. Structural reforms must be complemented by societal changes that cultivate a broader acceptance and understanding of diversity. Initiatives such as public awareness campaigns and enhanced support for advocacy groups are crucial. These efforts work to change public perceptions about normalcy and ability, challenge existing prejudices, and foster a supportive environment for individuals ‘deviating’ from societal norms.
The path forward involves persistent advocacy, education, and legislative reforms that consistently champion diversity and equity. It is about building a society that not only accommodates but also truly values and embraces all its members. This journey is complex and ongoing, but it is essential for achieving a just and equitable society.
5 Consideration at the Core: Inclusive Policy Development
While grounded in extensive research on the perpetuation of norms, this proposal is not the definitive answer. The true solution lies in acknowledging the diverse groups affected by our systems, ensuring they are actively recognised and involved in reform efforts.
Effective policy development must engage individuals affected by legal frameworks. Experts highlight the lack of ‘structural involvement of persons with disabilities in policy development’. [159] Too often, decisions are made for persons with disabilities, instead of ‘inherently’ working ‘with’ them. [160] As a result, the ‘policy doesn’t fit’ their experiences, reinforcing the stigmatisation of people with disabilities.[161] Through a collaborative approach, laws can be tailored to genuinely meet the needs and uphold the rights of these communities, actively dismantling biases and preventing exclusion.
Transitioning from a market-driven mindset to one that prioritises human dignity and diversity is essential. Such a shift ensures that all individuals are treated with fairness and respect. By redefining legal standards and deepening societal understandings of human diversity, we can begin to remove the entrenched inequalities in our society. This effort is not just a legal necessity, but a moral imperative, critical for refining our societal norms and conceptions of normalcy and reasonableness as we evolve.
This article critically examined the intersections of law, biology, and the pervasive influence of neoliberalism on societal norms, illuminating how these forces collectively mould the contours of what is considered ‘normal’. The ‘normal’-sized stain neoliberal ideologies have left on our social fabric is neither small nor superficial. It permeates the very threads of how law and medicine define human worth, embedding economic objectives deep into our perceptions of ‘normalcy’ and ‘reasonableness’. By incorporating economic logic into these spheres, neoliberal policies do not merely influence societal norms but actively construct them, commodifying human diversity and reducing complex individual identities to economically viable entities – eroding genuine diversity and complexity under the guise of normativity.
Medicalisation under neoliberal regimes serves as a mechanism of control, transforming personal attributes into areas of economic interest and enforcing a cycle of perpetual self-optimisation to align with market demands. This invisible yet pervasive expansion challenges the richness of human diversity, pushing the moral boundaries of societal governance to their limits. The analysis reveals a troubling portrait of a society ensnared by market-driven imperatives that not only redefines human worth and diversity but also steeply marginalise those who do not conform to these constructed norms.
The examination of ‘reasonable’ legal discourse not only codifies exclusion but also imposes a rigid standard that is harshly detached from the pluralistic nature of contemporary society. As these normative definitions become entrenched, the law acts as the liminal space where neoliberal norms are operationalised, reinforcing exclusionary standards of what is considered ‘normal’ and ‘reasonable’.
This analysis has revealed that the stakes are high: the pervasiveness of neoliberal ideologies threatens to diminish the richness of human diversity and compels conformity that aligns with market demands. It is clear that a redefinition of what constitutes ‘normal’ and ‘reasonable’ is imperative. This article advocates for a shift towards a more inclusive and flexible legal and medical framework that recognises and values the full spectrum of human diversity.
By challenging the entrenched norms of neoliberalism and advocating for holistic reforms, we can begin to dismantle the biases embedded within our societal structures. Only through such transformative changes can we hope to foster a society that truly values each individual not as a commodity but as a bearer of inherent worth and dignity. As we move forward, it is crucial that our legal and medical systems evolve not only to adapt to, but to actively promote and protect the rich diversity that characterises human life.
* Fifth-year BCom (Finance), LLB student (UNSW). I thank Associate Professor Dr. Marc De Leeuw for his guidance and feedback.
1 Elizabeth Stephens, ‘#notnormal’ (2019) 25(2) Cultural Studies Review 278, 278.
[2] Kean Birch, ‘Neoliberalism: The Whys and Wherefores ... and Future Directions’ (2015) 9(7) Sociology Compass 571, 572.
[3] Manfred Steger and Ravi Roy, First-Wave Neoliberalism in the 1980s: Reaganomics and Thatcherism (Oxford University Press, 1st ed, 2010) ch 2.
[4] Birch (n 2) 572.
[5] Felix Windegger and Clive L Spash, ‘Reconceptualising Freedom in the 21st Century: Neoliberalism vs. Degrowth’ (2022) 28(4) New Political Economy 554, 558.
[6] Jan Aart Scholte, ‘The Sources of Neoliberal Globalisation’ (Programme Paper No 8, United Nations Research Institute for Social Development, October 2005) 1, 10; Michael A Peters, ‘The Early Origins of Neoliberalism: Colloque Walter Lippman (1938) and the Mt Perelin Society (1947)’ (2023) 55(14) Educational Philosophy and Theory 1574, 1574–5.
[7] Ibid.
[8] Ibid; Jason Read, ‘A Genealogy of Homo-Economicus: Neoliberalism and the Production of Subjectivity’ (2009) 9 (6) University of Southern Maine 25, 28.
[9] Peters (n 6) 1580; Read (n 8) 28.
[10] Peters (n 6) 1575.
[11] Ibid; Read (n 8) 28.
[12] Ibid 27; David Harvey, A Brief History of Neoliberalism (Oxford University Press, 2007); Michel Foucault, The Birth of Biopolitics: Lectures at the Collège de France, 1978–1979, tr Graham Burchell (Palgrave Macmillan, 2008) 12.
[13] Andrew Ives, ‘Neoliberalism and the Concept of Governance: Renewing with an Older Liberal Tradition to Legitimate the Power of Capital’ (2015) 14 Mémoire(s), Identité(s), Marginalité(s) dans le Monde Occidental Contemporain 1.
[14] Read (n 8) 27–8; Foucault (n 12) 12.
[15] Read (n 8) 28; Foucault (n 12) 139.
[16] Peters (n 6) 1575; Read (n 8) 28.
[17] Peters (n 6) 1580.
[18] Ibid.
[19] Read (n 8) 28.
[20] Ibid; Foucault (n 12) 226.
[21] Ives (n 13).
[22] Ibid 1.
[23] Lennard J Davis, Enforcing Normalcy: Disability, Deafness, and the Body (Verso, 1995) 48 (‘Enforcing Normalcy’).
[24] Ibid.
[25] Ibid.
[26] Ibid.
[27] Ibid 49.
[28] Ibid.
[29] Ibid.
[30] Ibid 49–50.
[31] Ibid.
[32] Ibid 49.
[33] Kevin P Tobia, ‘How People Judge What is Reasonable’ (2018) 70(2) Alabama Law Review 293, 336.
[34] Stephen M Stigler, The History of Statistics: The Measurement of Uncertainty before 1900 (Harvard University Press, 1986) 240.
[35] Tobia (n 33) 336.
[36] Ibid.
[37] Davis, Enforcing Normalcy (n 23) 50.
[38] Ibid.
[39] Ibid.
[40] Ibid.
[41] Michael Rost, ‘“To Normalize Is to Impose a Requirement on an Existence.” Why Health Professionals Should Think Twice before Using the Term ‘Normal’ with Patients’ (2021) 18 Bioethical Inquiry 389, 391.
[42] Ibid.
[43] Ibid.
[44] Ibid 390.
[45] Ibid.
[46] Ibid.
[47] Ibid.
[48] Ibid.
[49] Ibid 390–1.
[50] Ibid 390.
[51] Ibid 391.
[52] Ibid.
[53] Ibid.
[54] Ibid.
[55] Ibid 392.
[56] Elizabeth Reis, Bodies in Doubt: An American history of Inter-sex (Johns Hopkins University Press, 2009) 158; Rost (n 41) 392.
[57] Rost (n 41) 392; Davis, Enforcing Normalcy (n 23).
[58] Rost (n 41) 392; Thomas Armstrong, ‘The Myth of the Normal Brain: Embracing Neurodiversity’ (2015) 17(4) American Medical Association Journal of Ethics 348, 350.
[59] Rost (n 41) 392.
[60] Ibid.
[61] Peter Conrad, ‘Medicalization and Social Control’ (1992) 18 Annual Review of Sociology 209, 210.
[62] Joanna Moncrieff, ‘The Political Economy of the Mental Health System: A Marxist Analysis’ (2022) 6 (January) Frontiers in Sociology 1, 2.
[63] Ashley Frawley, ‘Medicalization of Social Problems’ in Thomas Schramme and Mary Walker (eds), Handbook of the Philosophy of Medicine (Springer Dordrecht, 2015) 1, 2.
[64] Antonio Maturo, ‘The Medicalization of Education: ADHD, Human Enhancement and Academic Performance’ (2013) 5(3) Italian Journal of Sociology of Education 175, 176.
[65] Ibid.
[66] Ibid 177.
[67] Conrad (n 61) 210; Maturo (n 64) 210.
[68] Ibid 177.
[69] Joseph E Davis, ‘Medicalization, Social Control, and the Relief of Suffering’ in William C Cockerham (ed), The New Blackwell Companion to Medical Sociology (Blackwell Publishing, 2009) 211, 211 (‘Medicalization’).
[70] Ibid.
[71] Ibid.
[72] Ibid.
[73] Ibid.
[74] Ibid 211.
[75] Karen Bray, ‘The Monstrosity of the Multitude: Unredeeming Radical Theology’ (2015) October Palgrave Communications 1, 1.
[76] Ibid 1.
[77] Davis, ‘Medicalization’ (n 69) 211.
[78] Ibid 211.
[79] Davis, Enforcing Normalcy (n 23) 49.
[80] Caroline Pulfrey and Fabrizio Butera, ‘Why Neoliberal Values of Self-enhancement Lead to Cheating in Higher Education: A Motivational Account’ (2013) 24(11) Sage Publications 2153.
[81] Danae S Kokorikou et al, ‘Testing Hypotheses about the Harm that Capitalism Causes to the Mind and Brain: A Theoretical Framework for Neuroscience Research’ (2023) 8(June) Frontiers in Sociology 1030115:1–13, 2.
[82] Brian Bloomfield and Karen Dale, ‘Fit for Work? Redefining “Normal” and “Extreme” through Human Enhancement Technologies’ (2015) 22(4) Sage Publications 552, 553.
[83] Ibid; Peters (n 6) 1579.
[84] Bloomfield and Dale (n 82) 554.
[85] Ibid.
[86] Melinda Cooper, Life as Surplus: Biotechnology and Capitalism in the Neoliberal Era (University of Washington Press, 2009) 9.
[87] Ibid.
[88] Rost (n 41) 392.
[89] Alan D Miller and Ronen Perry, ‘The Reasonable Person’ (2012) 87(2) New York University Law Review 323, 328.
[90] Ibid.
[91] Ibid.
[92] Ibid.
[93] Ibid.
[94] Ibid.
[95] Ibid 332.
[96] Ibid.
[97] Ibid.
[98] Ibid.
[99] John Gardner, Torts and Other Wrongs (Oxford University Press, 2019) ch 8.
[100] Mayo Moran, ‘The Reasonable Person: A Conceptual Biography in Comparative Perspective’ (2010) 14(4) Lewis and Clarke Law Review 1233, 1233 (‘The Reasonable Person: A Conceptual Biography’).
[101] Mayo Moran, Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard (Oxford University Press, 2003) ch 1 (‘Rethinking the Reasonable Person’).
[102] Ibid 18; Western University, ‘Mayo Moran, “Rethinking the Reasonable Person”’ (YouTube, 10 February 2017) 00:05:27–00:05:39 <https://www.youtube.com/watch?v=_lkLiuMfqiM&list=PL16A5D0BF675D3F55>.
[103] Moran, Rethinking the Reasonable Person (n 101) 18.
[104] Ibid; Davis Contractors Ltd v Fareham Urban District Council [1956] UKHL 3; [1956] AC 696, 728 (Lord Radcliff).
[105] [1837] EngR 424; (1837) 132 ER 490.
[106] Michael J De Vinne, ‘The Reasonable Person as Living Fossil’ (2010) 37(1) Litigation 15, 15.
[107] Miller and Perry (n 89) 370; Tobia (n 33) 336.
[108] Miller and Perry (n 89) 370; Tobia (n 33) 336.
[109] Moran, Rethinking the Reasonable Person (n 101) 18.
[110] Marcia Baron, ‘The Standard of the Reasonable Person in the Criminal Law,’ in R A Duff et al (eds), The Structures of The Criminal Law (Oxford University Press, 2011) 11, 11.
[111] De Vinne (n 106) 16; Patrick J Kelley and Laurel A Wendt, ‘What Judges Tell Juries about Negligence: A Review of Pattern Jury Instructions’ (2002) 77(2) Chicago-Kent Law Review 587, 622–3.
[112] De Vinne (n 106) 16.
[113] Moran, Rethinking the Reasonable Person (n 101) 131.
[114] Ibid.
[115] [1903] UKLawRpKQB 105; [1903] 2 KB 100.
[116] Justice Hament Dhanji, ‘Cultural Diversity in the Law: It Is Not Revolution’ (2023) 32(3) Journal of Judicial Administration 131, 135.
[117] Ibid.
[118] Ibid; Mikael Holmqvist, ‘Stratification in a Neoliberal Society: The Making of Elites and Occupationally Disabled in Contemporary Sweden’ (2021) 47(7–8) Critical Sociology 1355, 1355.
[119] Francesco Tommasi and Johanna L Degen, ‘Keeping a Foot in the Door: Neoliberal Ideology in Subjects who Opt Out of a Corporate Career’ [2022] (March) Human Arenas 1, 2.
[120] Vanessa Lemm and Miguel Vatter, The Government of Life: Foucault, Biopolitics, and Neoliberalism (Fordham University Press, 2014) 5; Henrique Amorim, ‘Theories of Immaterial Labour: A Critical Reflection Based on Marx’ (2014) 8(1) Work Organisation, Labour and Globalisation 88, 92–3.
[121] Galen Watts, ‘Are You a Neoliberal Subject? On the Uses and Abuses of a Concept’ (2022) 25(3) European Journal of Social Theory 458, 472.
[122] Moran, Rethinking the Reasonable Person (n 101) 2.
[123] Ibid.
[124] Ibid 21.
[126] Moran, Rethinking the Reasonable Person (n 101) 21; Paul Vout, Torts: The Laws of Australia (Thomson Reuters, 3rd ed, 2016) 208–209 [33.2.1650].
[127] (1956) 58 WALR 5.
[128] Thomson Reuters (n 126) [33.2.1650].
[129] Ibid.
[130] (2015) 251 A Crim R 198.
[131] Ibid 204–10 [38]–[68] (RA Hulme J).
[132] Ibid 210 [69].
[134] Moran, Rethinking the Reasonable Person (n 101) 13.
[135] Magna Carta of 1215, art 39–40, as reproduced in GRC Davis, Magna Carta, (British Library, 1989).
[136] Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) (‘CRPD’); Eliza Nugent, Preyasi Domun and Winuri De Alwis, ‘Advancing Jury inclusivity in Australia’ (Research Report, Remedy Australia, August 2021) 5.
[137] De Vinne (n 106) 15.
[138] Mayo Moran, ‘The Reasonable Person: A Conceptual Biography’ (n 100) 1233.
[139] Jury Act 1977 (NSW).
[140] Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (Report No 124, August 2014) [7.221].
[141] Nugent, Domun and De Alwis (n 136) 5; UN Committee on the Rights of Persons with Disabilities, Views: Communication No 13/2013, 15th sess, UN Doc CRPD/C/D/13/2013 (30 May 2016) (‘Lockrey v Australia’).
[142] Nugent, Domun and De Alwis (n 136) 5–6; Committee on the Rights of Persons with Disabilities, Views: Communication No 11/2013, 15th sess, UN Doc CRPD/C/15/D/11/2013 (25 May 2016) (‘Beasley v Australia’); UN Committee on the Rights of Persons with Disabilities, Views: Communication No 35/2016, UN Doc CRPD/C/20/D/35/2016 (20 December 2018) (‘JH v Australia’).
[143] JH v Australia (n 142) 2 [9(a)].
[144] Nugent, Domun and De Alwis (n 136) 6; JH v Australia (n 142) 2 [9(b)].
[145] JH v Australia (n 142) 3 [10].
[146] Lockrey v Australia (n 141); Beasley v Australia (n 142); JH v Australia (n 142).
[147] [2016] HCA 38; (2016) 259 CLR 518.
[148] Brock Budworth, Trevor Ryan and Lorana Bartels, ‘Reigniting the Lamp: The Case for Including People who are Blind or Deaf as Jurors’ [2017] UWALawRw 23; (2017) 42(2) University of Western Australia Law Review 29, 35.
[149] Ibid; New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) 14–48; New South Wales Law Reform Commission, Access to Court Proceedings via Sign Language Interpreting: An Investigation (Research Report No 14, March 2007).
[150] Budworth, Ryan and Bartels (n 148) 35–6.
[151] Ibid 36; Tricia Harris, ‘Trial by Jury: Has the Lamp Lost Its Glow?’ (2010) 3(2) University of Central Lancashire Journal of Undergraduate Research 1, 9; R v Marshall (1986) 43 SASR 448, 499 (White J).
[152] Budworth, Ryan and Bartels (n 148) 36.
[153] ‘Disability, Ageing and Carers, Australia: Summary of Findings’, Australian Bureau of Statistics (Web Page, 4 July 2024) <https://www.abs.gov.au/statistics/health/disability/disability-ageing-and-carers-australia-summary-findings/latest-release#cite-window1>.
[154] ‘The Health of People in Australia’s Prisons 2022’, Australian Institute of Health and Welfare (Web Page, 15 November 2023) <https://www.aihw.gov.au/reports/prisoners/the-health-of-people-in-australias-prisons-2022/contents/human-function-and-disability/health-conditions-or-disabilities-that-affect-ever>.
[155] ‘Access Canberra Supports People with Hidden Disabilities’, ACT Government (Web Page, 12 June 2024) <https://www.act.gov.au/our-canberra/latest-news/2024/june/access-canberra-supports-people-with-hidden-disabilities#>.
[156] Dorien Claessen et al, ‘Bringing Human Rights Home: Access to Justice and the Role of Local Actors Implementing the United Nations Convention on the Rights of Persons with Disabilities’ (2024) 16(2) Journal of Human Rights Practice 554, 556, 565.
[157] Davis, Enforcing Normalcy (n 23) 48.
[158] Claessen et al (n 156) 557.
[159] Ibid 561.
[160] Ibid.
[161] Ibid.
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