31 May 2015


'Constructing Autonomy' by Bailey H. Kuklin in (2015) 9 NYU Journal of Law & Liberty 375 argues
Legal and moral norms have strengthened their protection of individual autonomy over the centuries. The emphasis and impressions by most scholars regarding this progress have, nonetheless, often been misleading. It is not that we have developed better standards by which to protect a pre-existing notion of autonomy. This puts the endeavor backwards. It is, to the contrary, that our evolving rules and standards of rights and duties create and delineate what we mean by autonomy. Autonomy, in a nutshell, is that which is protected by adopted norms. This article unpacks the principles supporting this conclusion and offers guidance for further progress.
Kuklin comments
This article examines the meaning and reach of autonomy. More particularly, it analyzes the means by which personal autonomy boundaries are established and, relatedly, the notion of crossing an autonomy boundary, which gives rise to an autonomy invasion. Plausible autonomy boundaries between persons are looked at mainly from an individualistic, deontic viewpoint. I take the perspective of persons making personal claims against one another, typically in light of existing legal, moral, and social norms. The autonomy claims of entities other than individuals, such as collectives (e.g., the state, corporations), are set aside because they are not natural persons with independent moral status. 
The currently preponderant strain of legal analysis generally embraces an internal point of view. The dominant internal orientation of modern tort scholarship is especially noteworthy. Tort scholars who base their theories on corrective justice, such as Ernest Weinrib, Jules Coleman, and Arthur Ripstein, identify and mainly support the corrective justice principles that they see as immanent in existing tort doctrine, and typically reject inconsistent tort doctrine or principles as incoherent. Tort scholars with an economic orientation who look to the Hand formula as signaling the central organizing principle of tort law negligence, such as Richard Posner, suggest that the formula implies that the goal of efficiency is recognized as immanent in existing tort law, and commonly dismiss inconsistent authority as counterproductive. Criminal law and contracts scholars, other than those with a strong law and economics commitment, do not seem to emphasize a single, identified immanent principle of their legal subjects as much as do most torts scholars. They often acknowledge the existence or acceptability of polycentric values. 
In contrast to this current strain of legal thought, my approach looks outside existing law to the overarching principles of individual rights however they may align with today’s law. These principles stem from Immanuel Kant’s categorical imperative. This inspiration from Kant reflects the predominant thinking of modern legal, moral, and political commentators. Writers as diverse as John Rawls and Robert Nozick ground their fundamental conceptions on Kant’s works. In seeking a rounded understanding of personal autonomy, reliance on the lessons of existing law is of limited usefulness. There is little reason to believe that the body of private common law would reflect a coherence that is ascribed to it by some commentators. It is still largely influenced by the old writ system. This system emerged as a means to obtain the jurisdiction of the courts of the English sovereign. As some commentators have made so clear, it was not designed for, nor did it ever achieve, a comprehensive, logical ordering of the private law. The common law is complete in the sense that every issue brought before the courts can be resolved one way or another. But in light of its quirky and historically contingent origins, it would be amazing if the substantive principles and doctrines of the common law entirely harmonised. At best, the common law would take a very long time to evolve towards and achieve harmony because of the braking constraints of the doctrine of stare decisis and the ebb and flow of the moral and political inclinations of the law’s agents. Even with an overall trend towards coherence in the common law, which I do not deny, path dependence would point toward a limited orbit of likely end points short of a radical reorientation of the common law process. Akin to Pareto optimality, the common law could reach a state of completeness and coherence without satisfying any ideal body of substantive principles. One should be very doubtful about finding a fully justifiable moral “ought” in the “is” of the common law. 
A somewhat comparable tale can be told about the origins and development of criminal law doctrine. Here, however, we should expect greater, though perhaps not complete, order. The body of criminal law has historically been subject to comprehensive adjustments through legislation. Subject to constitutional limitations, the legislative process allows for giant steps, backwards and forwards, and the opening of entirely new avenues, such as those needed to cope with abuses relating to the emerging forms of power being generated by the computer revolution. None of these cautions regarding the origin and growth of the law goes to reject the claim that conceptions of corrective justice and retribution are, at least partially, immanent in the private and criminal law. Bypassing the powerful arguments by legal economists and other commentators that additional principles are, and should be, immanent in the law, the problem remains that corrective justice and retribution are formal concepts only. They instruct us on limitations to what we may properly do, but they do not tell us exactly what we should do. 
The central orientation of my search for the meaning of autonomy is Kantian, with needed and enlightening help from Aristotle. In considering the range of an individual’s plausible deontic claims, I will identify points at which normative choices may or must be made when adopting substantive principles and, when they are violated, requital principles for the autonomy invasions. Atop a strictly formal, Kantian foundation, just law allows for a considerably broader range of acceptable doctrine and precepts than is generally acknowledged. Under this orientation, political obligation (the duty to obey the law) must be grounded on individualistic principles alone, such as consent. For instance, to the claim for requital since “you broke the law,” the claimee may properly respond, “but I am not obligated to obey that particular law. I did not consent to it.” Although Kant insisted that one has a moral duty to obey universalized laws, his position involves a nonconsensual social contract imposed by the state. For purposes of the strongly individualistic analysis here, a nonconsensual grounding for a social contract is deemed inadequate. 
Here is a roadmap of what follows. In the private sphere primarily addressed, autonomy boundaries, within which is one’s autonomy space, are established by each person’s adopted deontic maxims (e.g., “do not batter another person”). Under the common, formal interpretation of the categorical imperative, an individual’s chosen, substantive, first-order maxims may vary from person to person. Each individual’s set of maxims must be complete, in that it addresses all possible conflicts with the interests of other persons, for otherwise the autonomy boundaries are not fully drawn and thereby leave gaps. Each set of maxims must also be coherent, that is, all the maxims in the set must be consistent with one another. In adopting maxims to establish autonomy boundaries, two sorts of freedoms are balanced and delineated: first, the liberty to choose and act; and second, the security, essentially, from being acted upon by others. Once a person’s autonomy space is plotted, she may adjust its boundaries by consent, within limits (e.g., no slavery contracts), by granting another party rights and, correlatively, assuming duties. When an autonomy boundary has been impermissibly crossed, that is, there has been an autonomy invasion producing a wrongful harm (e.g., a battery), requital is available to the invadee. This response requires the invocation of adopted, requital, second-order maxims. In the private law the requital standards are conceptions of corrective justice, while in the public (criminal) law, they are conceptions of retribution or distributive justice. For the violation of a first-order maxim against battery, for instance, an invadee may seek damages under a second-order requital maxim based on corrective justice. Because independent claims of the state are here discounted, conceptions of corrective justice and retribution focus entirely on individual rights and duties. 
The conceptions of corrective justice that are adopted, like the substantive maxims that initially mark autonomy boundaries, are matters of individual choice that, again, must simply meet the categorical imperative and establish a complete and coherent set of requitals to cover all the possible invasions of autonomy space determined directly by substantive maxims. For example, there could be one or more remedial conceptions of corrective justice to deal with harmful ultrahazardous activities, and other ones to deal with negligence, as where distinct degrees of wrongful risk are accounted for. Furthermore, the conceptions may vary according to the differences in the ensuing harms, such as physical versus psychic harms. The combination of first- and second-order maxims establishes a person’s overall autonomy space. Because these maxims are matters of personal choice, the maxims adopted by different individuals may conflict. A claimant may charge another person with invading her autonomy space by violating one of her first-order maxims. The claimee may properly respond that he has not adopted this particular maxim and that his conduct fully meets the full set of maxims consistent with the categorical imperative that he has personally adopted. Consequently, as a practical matter, the state cannot be entirely excluded from choosing maxims and imposing them on individuals. The state must act as an arbiter of inconsistent sets of maxims as a second-best solution to an otherwise intractable problem. Similarly, for retribution the state must be the arbiter of conflicting claims and the implementer of apt punishment. But this second-best solution is resorted to only when unavoidable, for it runs contrary to strict individualistic principles. 
In unpacking common conceptions of corrective justice and retribution, there are three key notions that are often, if not always, elements: harm, wrongfulness, and blameworthiness. For example, “when one wrongfully harms another person by blameworthy conduct, she is to compensate that person to the extent of the wrongful harm.” As in this conception of corrective justice, one or more of the key notions may relate to whether requital is called for and, if met, affect the measure of that requital. Furthermore, specification of the notions may vary from context to context, as where, say, a greater degree or type of blameworthiness is required to recover for purely psychic harms than for purely physical harms. Harms are, in short, of four kinds: physical, economic, psychic, and dignitary. This last kind of harm, dignitary, has not received extensive attention in existing law, though dignity is central to Kant’s development of practical reason. It does receive much attention here. Wrongfulness, or wrongful harm, occurs when a substantive, first-order maxim is violated, as, say, when an agent purposely puts another person at an unreasonable risk of harm. Blameworthiness refers to two notions. First, it refers to the extent to which an actor is responsible for the conduct in question. This responsibility turns on her relative freedom from ignorance and coercion when choosing the act or omission. The more she knows about the potential consequences of her considered conduct, the freer she is to make an un-encumbered choice, the more she is responsible and blameworthy for the wrongful harms that ensue. Second, blameworthiness refers to the actor’s mental state and conduct regarding the invadee. This blameworthiness is gauged by the degree of her disrespectfulness of the invadee’s dignity. Fellow moral agents are entitled to equal respect. Depending on the particular adopted maxims, both forms of blameworthiness may affect the delineation of autonomy space. 
Once an agent has worked out a deontically acceptable range of meanings for the three key moral notions, she is ready to consider and adopt a full set of first- and second-order maxims. This article aims to help her get to that point of being ready to work out her own autonomy boundaries. I leave it to future articles to help her further along. The bottom line, it will be seen, is that the deontic constraints on delineating autonomy boundaries are much looser than is commonly supposed. A very wide range of potential rights and duties are consistent with the claims of individualism.
'The Impact of EU Fundamental Rights on Private Relationships: Direct or Indirect Effect?' by Matteo Fornasier in (2015) 23(1) European Review of Private Law 29-46 argues
 Traditionally, the primary goal of fundamental rights has been to limit the power of the state over individuals. However, it is undisputed in most legal orders today that fundamental rights also have an impact on the relationship between private parties. The present paper looks at how the fundamental rights guaranteed at the level of EU law may affect private law relationships. In particular, the paper analyzes whether EU fundamental rights have direct or indirect effect in private relations, that is to say, whether they are, as such, binding on private parties or whether they impose obligations on individuals only through the medium of an implementing act. It will be shown that, contrary to what has been written by a number of authors, this question actually matters in practice, especially in the context of the social rights guaranteed by the Charter of Fundamental Rights of the European Union. Special attention is devoted to the more recent case law of the CJEU, which in the view of some commentators supports the notion of direct horizontal effect.