Citation

Pundik A. Oxf. J. Legal Stud. 2017; 37(1): 189-216.

Copyright

(Copyright © 2017, Oxford University Press)

DOI

10.1093/ojls/gqw016

PMID

unavailable

Abstract

Both inside and outside the courtroom, we commonly infer facts about individuals by using generalisations about how similar people tend to behave in similar situations. However, some types of generalisation seem intuitively objectionable (eg using the high rate of crimes involving illegal firearms in a certain neighbourhood to support the conviction of an individual resident in a crime involving an illegal firearm). This article seeks to propose a new approach to the use of generalisations in order to identify which uses are objectionable and to explain why this is the case. This new approach seeks to connect the problem of generalisation to the issue of free will. The crux of the argument is that using some types of generalisation requires presupposing that the individual's behaviour was determined by a certain causal factor which renders such behaviour unfree. Yet, in some contexts, most importantly in criminal proceedings, it is necessary to presuppose the exact opposite: that the individual is free to determine her own behaviour. Using these generalisations in such contexts is objectionable because it involves contradicting presuppositions about the individual's behaviour.

Language: en