Autonomy and the Rule of Law (original) (raw)

Why Individual Freedom and the Autonomy of Law Stand or Fall Together

Revista acadêmica de Faculdade de Direito do Recife, 2017

There is, in legal philosophy, an ongoing debate about the autonomy of law, that is, about the extent to which law is distinguishable from some other phenomena. The dominant views, today, all understand law as fulfilling a certain instrumental role. Justice and efficacy, then, are probably the most common relational others to law. For example, it is common to say that the law should further a certain understanding of distributive justice-this is the view preferred by philosophers such as John Rawls and Ronald Dworkin. Others have argued for the efficacy of the law as with the law-and-economics approach most famously championed by Judges Frank Easterbrook and Richard Posner. This paper argues for a radically different understanding of the law, as it explains why the law should indeed be autonomous. The question, however, is not whether the law is actually autonomous or not-it is obviously not, as the law is too often the plaything of various lawgivers. The real question is the following-do we want to be autonomous, as individuals? The answer is obviously yes, individual freedom being a universal value, and therefore, this paper argues, the law should also be autonomous. There is, as we will

Law’s Autonomy and Moral Reason

Laws, 2019

This paper intends to set out an argument to Legal Idealism and a thesis that holds law and morality as necessarily connected. My focus is on deconstructing the Positivist argument to the Autonomy Thesis and beginning to reconstruct it through the application of morality to law’s autonomous authority. My aim, ultimately, is to demonstrate how, through the concept of law, practical reason might explain the related (and overlapping) notions of legitimacy, authority, and the obligation to obey through the necessary connection of law and morality. That is, I intend to demonstrate that morality both survives and remains identifiable (transparently) following the process of metamorphosis into institutionalised practical reasoning. If this is so, the authority of and obligation to law is simultaneously a form of morally rational obligation. In the response to the Positivist argument that moral values are incommensurate, I will show that this commensurability can be determined ‘artificially’ by a system of institutionalised reasoning (i.e., the law); this is to say, if I can show that the Legal Positivist argument is left incomplete without some explanation of moral values underpinning it, I need not to show that a specific, defensible moral truth or principle is required, but that an artificial weighting of abstract moral principles is sufficient

The Autonomy of Law: Two Visions Compared

Autopoietic Law - A New Approach to Law and Society, 1987

During the past decade the effort to understand the place of the legal system in society has, in England and America, given rise to a renewed interest in the possibility of legal autonomy (Thompson, 1975; Balbus, 1973; 1977; Trubek, 1977). More recently, on the continent of Europe, especially in Germany, scholars have focused on an apparently radical form of autonomy-embodied in the idea of an autopoietic system-in an effort to understand how law functions (Luhmann, 1985 d; Teubner, 1984). These two approaches to understanding the legal system paint pictures that have much in common, but they are differently developed; they are supported by different types of arguments and they are advanced at different levels of abstraction. The Anglo-American approach grows out of the empirical untenability of a crudely instrumental Marxism which posits that law is the barely disguised instrument by which one class dominates another in all things. The clearly redistributive elements of the modern welfare state as well as empirical studies of the treatment of rioters (Balbus, 1973), the enforcement of Draconian, class-based legislation (Thompson, 1975), and even the law of slavery (Genovese, 1972; Tushnett, 1975) have shown that the generation and application of legal norms cannot be explained solely-and sometimes can hardly be explained at all-by the class positions of involved groups and parties. It appears, in particular, that the legal system's own norms of procedure and substance have important implications for the way the law in the first instance affects the distribution of wealth and power between parties. The rediscovery of Pashukanis (1980) and theories building on his work (see e. g., Balbus, 1977, Stone, 1985) have shown that Marxist theories of social organization are not necessarily threatened by legal norms that take no explicit account of the class positions of those whose behavior will fall within the ambit of the law or by the application of legal norms without regard to the social class or other socioeconomic attributes of the parties. Indeed, some have suggested that legal autonomy in this sense or even, on occasion, special sensitivity to the interests of the less privileged may

A Concept of Personal Autonomy fit for Private Law

Cambridge Law Review, 2019

The interplays between autonomy and many areas of law are somehow evident but many times redundant and unclear. In this paper, I offer an account of personal autonomy that can be useful in reading private law phenomena, especially focusing on the doctrine of contract as promise. This doctrine, which assimilates contracts and promises, poses two challenges to the ideal of personal autonomy: first, how can autonomy justify or require the ability to be bound by promise or contract; second, how can the possibility to change one’s mind, which is a virtue of the autonomous life, be reconciled with the bond created by contracts. By defending that personal autonomy is an ideal of self-authorship, and that the autonomous person authors her own life, being emotionally and intellectually capable of committing to a sufficient variety of long- and short-term choices, which she will consider without uncalled external interferences nor impositions and with respect for a condition of integrity, I will address both concerns, aiming at proving that a thick ideal of autonomy is capable of justifying the practice of contracting and is not in opposition with the strong bond created by contracts. The debate will primarily focus on promises, and thereafter its arguments are applied to contracts’ analysis.

Hart, Raz and Kelsen on the Puzzle of Law's Autonomy

Manuel Atienza, José Aroso (eds.) Human Dignity and the Autonomy of Law, 2022

The paper attempts to reconstruct the claim for the autonomy of modern western law in the oeuvre of Hart, Raz and Kelsen. It suggests that law's autonomy for Raz and Hart is realisable in relative terms, as they would accept that law's ultimate determination depends on social facts; moreover, they argued for no sharp separation between law and morality. This scenario renders the law's autonomy claim superfluous. Conversely, Kelsen articulated a cogent argument for law's autonomy by closing the system to the chance of incorporating exogenous elements in legal determination. He based his argument on a non-factual and non-reductive postulate besides strictly separating law from morality. Law's determination is selfstanding; therefore, it is genuinely autonomous. There is no relativisation of the claim. However, this autonomous law becomes problematic because it may irritate rational personal autonomy. Conclusion shows that the law's claim to autonomy is an intricate puzzle that requires rethinking its possibilities. The challenge is not trivial for legal theory; a sound reflection on the claim would conciliate a genuine autonomous law with rational autonomy.

Law, Justice, His Master and Her Servant. Autonomy in a heteronymous legal order

When excavating legal modernity the remnants of a societal structure are laid bare. This structure was framed by a heteronymous legal system. It envisaged the enlightenment of the masses by means of rules imposed top down by an intellectual elite seeking to herd the flock. Bauman, drawing heavily on Foucault, denotes this top-down rule as: “the domination typical of ‘pastoral power’, one of the most insidious of the many shapes of domination, as it blackmails its objects into obedience and lulls its agents into self-righteousness by representing itself as self-sacrifice in the name of ‘the life and salvation of the flock’”. Moral autonomy allows for critical resistance towards extreme contemporary flashes of legal modernity which are visible in nationalistic tendencies across Europe. This presentation explores tentatively, as work in progress, the possibility of formulating a critical legal theory based on the Baumanian analysis of contemporary society and the role of law and ethics therein. The kernel of such a theory, it is suggested, lies in the courage of moral responsibility in the knowledge of uncertainty. In a globalising world such an attitude and perspective serves as a counterweight to the apparent prevailing focus, in practice, on the heteronomy of law within the developing new imperialism.

Liberty and Law. Institutional Circumstances of Freedom

2007

My aim in this article is twofold. I will discuss different ways of conceptualising the relation between liberty and law. By ‘law’ I refer throughout to law in the sense of civil law: rules with accompanying sanctions, promulgated by a legislator for the regulation of action in political society. I do not intend to say anything about ‘natural law’, unless I explicitly state otherwise. For the purposes of my argument I will loosely group the positions I discuss under different labels: ‘liberty from the law’, ‘liberty by the law’, and ‘liberty under law’. There is nothing self-serving about these labels; indeed, they may appear simplistic and historically inept. I use them to direct our attention and in order to illustrate my second aim, which is to make a fairly general point that seems to me to fall out of the preceding discussion. That point is that concepts like liberty are institution dependent and that we cannot hope to understand or even talk about what they mean without adhering to that fact. I will argue that even when liberty is understood in terms of the absence of law, the presence of law or the possibility of its presence will have to be assumed in principle in order for its absence to make sense. Freedom from law refers to different kinds of absences, depending on whether the law that is not there is the institution itself or an instance of regulation within an institution that is present.