Agency and Legal Responsibility: Epistemic and Moral Considerations

Abstract

What kind of agency is required for legal standing? What are the cognitive and rational requirements assumed by legal systems about the subjects of the law? How is it that humans comply with these requirements? In previous work,1 we argued that these questions require a new approach to legal theory, based on recent findings in cognitive science, and which goes beyond extant neuro-legal approaches. We now elaborate on this proposal, now focusing on issues regarding agency and normativity, including types of agency that are relevant for social epistemology. The main conclusion of the paper is that the high cognitive demands on the explicit rational capacities of agents assumed by legal philosophy are not only incompatible with findings in psychology, but also that a careful and systematic analysis of moral and epistemic agency is required to fully comprehend legal normativity. Our main argument is that forms of collective agency, moral and epistemic, differ from individual agency, which must also be distinguished as moral and epistemic. Crucially, collective agency differs from individual agency not merely because of differences in rational standards, but fundamentally because of constraints on the cognitive integration of information. Several consequences of this approach are assessed, including aspects of information integration for judgment and decision-making, reliable communication in epistemic agency, and the integration of moral considerations in legal reasoning. A thorough revision of the notion of “autonomy” is justified under the present proposal, partly because the standard requirements for legal standing and autonomy are too demanding and unrealistic in many cases, and partly because collective agency needs to be taken into consideration as a fundamental kind of legally responsible agency for processes of information integration. By relying on the distinction between epistemic and moral forms of reasoning, we explain how legal systems demand high levels of cognitive integration for legal responsibility at the collective level.