Personal Autonomy in Plural Societies

A Principle and its Paradoxes

Marie-Claire Foblets, Michele Graziadei, Alison Renteln, Marie-Claire Foblets, Michele Graziadei, Alison Dundes Renteln

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781315413594
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

This volume addresses the exercise of personal autonomy in contemporary situations of normative pluralism. In the Western liberal tradition, from a strictly legal and theoretical perspective the social individual has the right to exercise the autonomy of his or her will. In a context of legal plurality, however, personal autonomy becomes more complicated. Can and should personal autonomy be recognized as a legal foundation for protecting a person's freedom to renounce what others view as his or her fundamental 'human rights'? This collection develops an interdisciplinary conceptual framework to address these questions and presents empirical studies examining the gap between the principle of personal autonomy and its implementation. In a context of cultural diversity, this gap manifests itself in two particular ways. First, not every culture gives the same pre-eminence to personal autonomy when examining the legal effects of an individual's acts. Second, in a society characterized by 'weak pluralism', the legal assessment of personal autonomy often favours the views of the dominant majority. In highlighting these diverse perspectives and problematizing the so-called 'guardian function' of human rights, i.e., purporting to protect weaker parties by limiting their personal autonomy in the name of gender equality, fair trial, etc., this book offers a nuanced approach to the principle of autonomy and addresses the questions of whether it can effectively be deployed in situations of internormativity and what conditions must be met in order to ensure that it is not rendered devoid of all meaning. The Open Access version of this book, available at http://www.taylorfrancis.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives (CC-BY-NC-ND) 4.0 license.

Part I
Autonomy in the face of cultural diversity

Disciplinary perspectives

1
The fault in our stars

Personal autonomy, philosophy, and the law

Michele Graziadei

Introduction

Personal autonomy has a prominent place in the legal landscape of contemporary democracies. In a liberal democracy, individual rights rest on the recognition and protection of the individual’s entitlement to free, unconstrained decision-making over matters concerning oneself and one’s relationships with others. Many rules of public law aim to secure personal autonomy either at the individual or at the collective level. With respect to private law, personal autonomy is often presented as an overarching theme of the law of persons, contracts, property, torts, and so on. Personal autonomy in the private sphere thus mirrors the ideal of a liberal government in the public sphere. This general approach makes the legitimacy of a given government conditional upon its capacity to secure the protection of personal autonomy.¹

Even under liberal democratic regimes, however, personal autonomy is not the sole organizing principle of the law of the state. Policymaking is often grounded as well on considerations of utility, expediency, security, and solidarity. Furthermore, when human beings lack autonomy − think of an unconscious patient whose will cannot be ascertained − other princi ples take over, such as the beneficial principle that obliges doctors to act for that patient’s good.²

From a philosophical point of view, in the nineteenth century idealism made personal autonomy a central concern for the law, thus providing it with new ethical foundations. Nevertheless, whether personal autonomy can universally be recognized as a concept and a norm that truly has cross-cultural meaning and value or not remains a troubling question that is often debated by commentators without directly consulting the available empirical evidence.³

Even within as the Western legal tradition, personal autonomy has gained the reputation of an enfant terrible: brilliant, but unsettling, to say the least. The various meanings associated with the term are a good illustration of the variety of views that the notion of personal autonomy elicits among contemporary legal thinkers;⁴ the doubts surrounding the subject, however, go beyond the purely terminological, as I will show.

To discuss these doubts in an orderly way, the various interpretations that come together under the heading of ‘personal autonomy’ need to be untangled. They reflect different lines of research into human agency and highlight the varied concerns and outlooks on it. My coverage of these interpretations will be unapologetically selective, as space does not allow for a more comprehensive overview, yet I still hope that this cursory attempt to trace their genealogies will help readers appreciate why the notion is both productive and problematic and, in my view, is bound to remain so.

In the first sections of this chapter I will therefore briefly consider the philosophical tradition closely associated with Kant and Hegel to show how that tradition has pushed for the recognition of personal autonomy as an organizing principle of Western law. By focusing on this philosophical tradition, I shall explore what I know best, but that is not to suggest that I dismiss other philosophical traditions or systems of thought that have reflected on and make room for this idea.⁵

I will first show how Kant’s notion of autonomy was borrowed by some nineteenth-century jurists influenced by idealism to model the law as a system of rights. Following Kant, those jurists believed that the law could guarantee maximum freedom to all through the ascription of individual rights. This approach distanced the law not only from a status-based system of rights, but also from a prior utilitarian tradition that adopted an interest-based theory of human actions as well as an empirical concept of individual will. In contrast to the approach advanced by Kant, Hegel objected that rights, which are the mechanism whereby law guarantees personal autonomy, do not necessarily coexist peacefully; in fact, they may clash with one another, sometimes with tragic consequences.

In the Romantic period, the critique of the philosophical ideas of the Enlightenment brought with it the demise of faith in abstract reason as the foundation of autonomy, which the Kantian project both upheld and required. As will be shown, this offered the possibility to rethink autonomy and conceive of it as an individualized experience of the subject acting in the world from a personal point of view. For Hegel, morality can still be experienced in the form of shared moral commitments that have their centre of gravity in the institution of the state. As commentators have noted, this possibility is obviously more difficult to achieve today, both for reasons that are linked to the diminishing weight of the state in a globalized world and for the increasing individualization that characterizes life in advanced economies. Nevertheless, Hegel’s reconstruction of autonomy as an individualized experience comes much closer to our understanding of autonomy today than does Kant’s understanding of it.

A number of academic disciplines now employ empirical methods to conduct research on personal autonomy. These disciplines have taken up the most important question that was set aside by philosophers like Kant and Hegel, namely, how to measure personal autonomy in operational terms, both in a particular cultural context and across different cultures. As part of the psychological constitution of human beings, personal autonomy plays out very differently in different cultures. The remaining sections of this chapter briefly touch upon the need to provide concrete opportunities to exercise autonomy as an essential means to foster human development. Suffice it here to say that social inclusion, which is a vital part of the mandate of democratic governments, requires more than the recognition of the personal competence for autonomous choice. It requires making opportunities to exercise autonomy concretely available for the entire political community. In a globalized world, that community is constantly expanding, as are the corresponding moral, political, and legal obligations.

The birth of a philosophical tradition and its alternatives

The idea that the law should protect personal autonomy is relatively recent in the history of Western law. For this breakthrough, legal thought is indebted to ideas first fully developed by eighteenth- and nineteenth-century Western philosophy.⁶ A quick review of the genesis of the idea of personal autonomy singles out two leading themes.

The first is the shift from morality conceived in terms of prompt obedience to authority to morality conceived in terms of self-governance. Immanuel Kant’s famous answer to the question ‘What is Enlightenment?’, published in 1784, is explicit in this respect: ‘Enlightenment is the human being’s emergence from his self-incurred minority. Minority is inability to make use of one’s own understanding without direction from another.’⁷

The second major theme is related to the idea of equality, an idea that can be connected to the notion that all human beings have equal moral competence. They do not need instruction from above to understand the moral law, and they all are capable of taking responsibility for their own self-governance, assuming they are mentally competent. The idea that all persons have equal moral competence comes into the picture in a variety of ways through both religious and non-religious thinkers.⁸ Before turning to the reconstruction of personal autonomy advanced by thinkers as different as Kant and Hegel, here I must at least consider how a particular line of thought maintained that the foundations of social order rest on individual choice, but failed to provide idealistic grounds for it.

In the sixteenth century the idea of the equal moral competence of humanity was first advanced in the name of a realistic view of the nature of humankind, which made sense in a world divided by religious controversies and wars. As shown by Albert O. Hirschman,⁹ this view rebelled against the reigning philosophical tradition, which extolled an ethics of virtues as the foundation of social order. The notion of ‘interest’ was then introduced as a key to understanding how society can exist and possibly thrive, despite all the moral shortcomings of human beings. In the sixteenth century, and even more so in the seventeenth century, a number of thinkers started insisting that the world is not governed by virtue, but rather by the personal drive to satisfy various appetites.¹⁰

This current of thought turned vices such as avarice and greed into psychological features that are intrinsic to human nature, but which can nonetheless be turned to good social purposes. Many moral shortcomings of humans were thus newly appraised; rather than denouncing them, it was argued that they should be exploited to lay the foundations of a new order. A new science of man, established on realistic premises, was built during these centuries. The first principle of this new science was that it was necessary ‘to take human-kind as it is’ because it is futile to try to go against human nature.

According to this analysis, which abandoned both the status-based and the virtue-based views of morality, conformity to outward standards of behaviour sanctioned by legislation was enough to satisfy the requirements of civic conduct. In the eighteenth century, Giovan Battista Vico’s New Science echoed this view:

Philosophy considers man as he ought to be and is therefore useful only to the very few who want to live in Plato’s republic and not to throw themselves into the dregs of Romulus. Legislation considers man as he is and attempts to put him to good uses in human society.¹¹

Accordingly, subjects who entertain different spiritual inclinations can all participate in civic life. The consequence of this analysis is that anybody can be a good subject, no matter what his or her inner religious or moral beliefs are. Civic life thus turns out to be possible under less stringent conditions than those required by the predicaments of virtue.¹²

This philosophy did not put much faith in the exercise of individual will as an element of a philosophical system centred on the notion of reason as extolled by thinkers like Kant and Hegel. Consider, for example, what David Hume wrote in his Treatise of Human Nature about the concept of individual will: ‘[B]y the will, I mean nothing but the internal impression we feel and are conscious of, when we knowingly give rise to any new motion of our body, or a new perception of our mind.’¹³ This is an experimental notion of what individual will is, and it cannot ground a theory of personal autonomy such as that inaugurated by Kant. Nonetheless, as explained below, this experimental notion opens up new ways of understanding how human capabilities work and how autonomy can be fostered.

Autonomy and conflicts among rights: the unravelling of a canon

The architects of personal autonomy as a principle of the legal order, who were influenced by the philosophy of Immanuel Kant, intended to recognize personal autonomy by reconstructing the law as an abstract system of rights assigned to each individual in accordance with the law of the state. The project thus pursued was an inclusive one. Up to the middle of the nineteenth century, more than a few European states were still organized through the division of society into separate estates, such as the nobility, the clergy, the bourgeoisie, and so on. In many parts of Europe, religious faith could still mark a fundamental difference in the civic condition of subjects. In that epoch, as Hegel showed, the notion that an individual could have rights as such, simply by virtue of being an autonomous individual under the law of the state, was novel and, indeed, even revolutionary.¹⁴

This philosophical approach shaped the jurisprudential definition of a right, which was elaborated to serve this project.¹⁵ In the words of Savigny, perhaps the most distinguished German jurist of the nineteenth century, this is to be conceptualized as the sphere in which individual will ‘rules independently of every foreign will’.¹⁶

The specific function of the law in general was, in Savigny’s view, to establish ‘an invisible boundary within which the existence and the activity of each individual gains a secure, free space’ so that the human desire for sociability can be achieved in the world.¹⁷ Once rights are ascribed by the law to each individual – this is the message – the conditions for the existence of peaceful social life are established. Under this approach, the law assists morality ‘not by performing its bidding but by securing the free development of its power indwelling in each individual will’.¹⁸

Kant’s famous proclamation – that the law is simply the whole of the conditions under which ‘the voluntary actions of any one person can be harmonised in reality with the voluntary actions of every other person, according to a universal law of freedom’¹⁹ – is the immediate philosophica...