Law and the Question of Human Agency

Alochonaa (Dialogue)

* Simon Katterl

How are questions of agency – that is the capacity to choose one’s own decisions – understood in the context of law? Does it resemble our common or folk understanding of psychology? How does it fare against our best empirical accounts of human behaviour?

I want to suggest that law’s understanding of human agency is deeply at odds with contemporary behavioural science, and that this matters for conversations about social justice. To do so, I will present three distinct but inter-related points:

  1. That the contemporary legal system has understood humans as rational agents through the medium of the legal subject – the legal person; and
  2. That this account is deeply flawed when compared to the best available accounts of human agency; and finally
  3. That this has political narrative of rational equality sustains injustice in our criminal legal system.


Law’s Rational Subject

Law’s subject – that is…

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