The judicial community and team reasoning

Sociality is key to the legal system, which is a constellation of different institutions where individuals make decisions or take actions as members of groups. Some legal positivists even think that the law per se is a social practice characterized by ‘massively shared agency’. Shapiro has adapted Bratman's theory of shared cooperative activity to account for the fact that massively shared agency involves authority relations and participants who are not committed to a shared objective. However, his account still involves common knowledge, which seems implausible in large groups. Further, it fits the definition of what Bratman calls ‘pre-packaged cooperation’, which is not shared cooperative activity in a sense Bratman studies and is explicitly out of scope. There is another theory of cooperation and coordination that is better placed to explain massively shared agency: Team reasoning is an extension of standard game theory, which allows teams of individuals to count as agents and solve problems of cooperation and coordination. I show how team reasoning can encompass instances with authority relations and group members who are not committed to the activity and that it does not require common knowledge of the identities of the participants. Further, solving some questions in the theory of team reasoning—about what reasoning consists of—shows that team still has something to offer even to legal scholars who have criticized the idea that the judicial community is an instance of massively shared agency. A court is the classic example of a ‘group agent’, a suitably organized collective that can be an intentional agent in its own right. Team reasoning is premised on the idea that the team can be an agent. By comparing group agency with team agency, I show that group agents like courts can be considered to be doing reasoning and even team reasoning. These two approaches correspond to two ways we could attribute collective responsibility: at the micro level, by understanding the reasoning and intentions of the individuals who participate in collective actions, or at the macro level, by focusing on the group agent and attributing collective responsibility on the basis of a group membership.