Preserving Us from Regulatory Power? Legal Normativity and the Possibility of Agency

Abstract

The success of law's institutional structure in keeping in check various forms of regulatory power is critical to the continued exercise of normative agency.

This chapter first argues that it is misleading to speak of something being ‘normative’ if it does not call for any form of normative engagement on our part. On this account, Berlin keys are no more 'normative' than social media platforms, even if both durably influence and constrain our behaviour.

This chapter then emphasises the extent to which legal theory's tendency to assume deliberative agency all the way through the practices that make legal normativity possible in the first place not only leaves us with a poorer understanding of legal normativity. This assumption also makes us blind to the extent to which it is not just our deliberative selves, but also our habitual selves that need protecting from undue influence if our capacity for normative agency is to be adequately preserved. This chapter concludes by highlighting the role played by law’s institutional structure in preserving us from a rigidification of the patterns of behaviour underlying our habitual practices. Such rigidification can be the result of our getting ‘hooked’ by technologies that are designed to bypass our deliberative selves; or it can stem from State-sponsored endeavours to maximise compliance while minimising the need for enforcement. An extreme example of the latter - the ‘Wall-E scenario’ - and the extent to which the standards that are complied with in such a scenario may cease to be adequately referred to as ‘legal norms’, is discussed.

Keywords: legal normativity, normative agency, machine ethics, deliberative agency, habitual agency, cybernetics, regulatory power, Korsgaard, Hildebrandt, Kelsen, Hart