This essay argues that legal practice must be understood as a form of shared agency. Building on H.L.A. Hart’s theory of social rules and the rule of recognition, I show that its familiar difficulties stem from Hart’s individualistic framing of law as a set of discrete actions, rather than as a collaborative enterprise. Drawing on Michael Bratman’s account of shared intentions, I argue that legal systems are best seen as collective projects of social planning in which different actors – legislators, judges, officials, and citizens – play interlocking roles. Bratman’s framework illuminates how legal systems achieve their characteristic functions of maintaining order, distributing resources, protecting rights, facilitating agreements, and resolving disputes – goals unattainable through individual effort alone. However, I argue that Bratman’s model of small-scale shared intentions cannot adequately capture massively shared agency, such as institutional conduct. His recent attempt to extend shared agency to law offers valuable insights, but ultimately falls short as a foundation for general jurisprudence. I conclude by situating the debate at the intersection of the philosophy of action and the philosophy of law, suggesting that the divergence between Bratman’s reconstruction and my own reflects differing meta-philosophical aims in reworking Hart’s theory.
What are social norms, and in what sense are they normative? An influential answer is that social norms are grounded in shared intentions. This view has now received a powerful articulation and defence by Michael Bratman. Bratman understands social norms in terms of shared policies, and he argues that the normativity of social rules is derived substantially from rational requirements applicable to plans. I argue that shared intentions of this kind cannot explain social norms. However the relevant intentions are construed, they cannot supply the deontic content of paradigmatic social rules. Moreover, I claim, the practices of criticising non-conformity and demanding conformity that characterise social norms are not explicable on the model of communicating requirements of rationality. I suggest that the attitude of acceptance, rather than intention, is a more promising candidate in a theory of social norms.
There is now a considerable body of analytic work examining the norms of criminal conviction at trial, integrating contemporary legal theory, political philosophy and epistemology to consider when a judge or jury should doubt the guilt of an accused. This paper takes up a neglected adjacent issue: when can citizens doubt a conviction returned by a criminal court? This question, aside from being independently important for a general theory of criminal justice, also bears on the perceived legitimacy of punishment and the relationship between individual citizens and state power. I provide an account of the intellectual and moral norms governing such dissent and explain their sensitivity to contingent facts about the jurisdiction in question. One upshot is that even among well-functioning criminal justice systems, the norms for public dissent can vary considerably—and depend on the ‘nuts and bolts’ of criminal process often hidden from public view. Ultimately, few states have sufficiently effective criminal processes to undergird any moral prohibition on dissent against conviction, so long as the intellectual hurdle of responsible inquiry has been cleared.
Raz’s influential notion of exclusionary reasons is a conceptual resource that would allow us to understand the normative nature of important political, legal, and social phenomena such as authority, promises, and rules. However, the existence of second-order reasons has been attacked on motivational grounds. According to this motivational objection, while there are reasons to perform some actions, there cannot be normative reasons about our acting for reasons, since we cannot be motivated to act by them. Here, I defend exclusionary reasons from this motivational charge. I shall argue that exclusionary reasons are able to rightly guide intentional omissions, insofar as belief in such reasons may be linked to states of omissive or negative intentions whose main role is to serve as causal blockers.
