Locating Agency in Automated Behaviour and Legitimated Authority

Most theoretical concerns regarding capabilities centre on the relationship between structure and agency. While there has been a lot of concentration on how agency is constructed, there is little work on now how agency may be recovered or expressed. Trends in both critical social theory and empirical social psychology point towards the prevalence of automated behaviour, which makes reflective agency problematic. In this paper, I suggest that the recovery and identification of agency in automated behaviour may be moderated by authority, and it is in the process of legitimising such authority that agency can be located.To this end, the paper concentrates on: (a) how automated behaviour may be influenced by authority, (b) how human agency may assess the legitimacy of such authority, and (c) how agency may moderate the automaticity of behaviour. Contrary to popular studies in law & psychology which use psychologicalmethods to inform legal issues, this paper aims at bringing legal theory into the conversation by concentrating on agency, authority and legitimacy as tools to guide such interaction. Using cognitive and social psychology to structurally inform legal questions has been in vogue over the last two decades primarily because of Behavioural Law & Economics (BLE). Although this field has been critiqued on several grounds by legal scholars, one aspect which has not beeninterrogated is how biases may be internally intelligible for self-regulation. In other words, information about biases and reading manuals on ‘how to change behaviour’ is unlikely to assist with making better choices. Reliance, therefore, is placed on external agents in an authoritative capacity to ‘nudge’ such choices while those who make such choices are usually unaware of their autonomy being compromised. The impossibility of internality may prove Michael Bratman’s‘means-end coherence’ as a mode of governance difficult, and this marks the point of departure for my inquiry. It is suggested that the theory of ‘unconscious agency’ has not yet been explored by legal scholars, and BLE research provides little guidance. It is proposed that trends in cultural and clinical psychology aiming at identifying and working towards accessing our ‘retrievable selves’to mediate our non-conscious engagement such as intuition and reflexive-behaviour may provide guidance on locating agency