Autonomy in the law: How free is a person?

What role does autonomy play in the law? Professor Anne Röthel, Chair of Civil Law, European and International Private Law at Bucerius Law School, explores this question.

Why is a debate about “autonomy in the law” so important?

It is important because it is central to our self-understanding as human beings and, at the same time, it is fundamental to our legal system. But it is difficult to grasp exactly what autonomy means. Therefore, its meaning must be debated time and time again. For example, today we are experiencing fundamental changes in bioethics, neuroscience and robotics. Markets are deregulated before once again becoming regulated. In the present day, we have to constantly come to new understandings of what we mean by autonomy and how the law can support and protect it.

Which areas of the law are involved in the research?

Actually, all legal areas have something to do with the topic: corporation law, foundation and endowment law, family law, administrative law, and also constitutional law. For example, public law asks how we defend autonomy against the state. Private law is concerned with how autonomy is endangered by private actors, among other things. On the one hand, companies like Facebook and Google receive our permission to store our data. On the other hand, we have no choice, other than to share it with them; ultimately, we want to participate in a social life. It is comparable to small print: you check the box at the end of the terms and conditions, regardless of whether they are suitable or not. Are such practices actually able to be reconciled with our self-understanding as autonomously bargaining individuals?

Are there any positive developments?

Yes, of course. The history of autonomy in the law is not only a history of danger and loss. For example, today we can legally determine in advance what medical treatment we want through a living will. That was not always the case in the past. We can also determine what happens to our organs after we die. Today, we do not only have marriage, but also registered life partnerships. In addition, it has also become easier to undergo a sex change. A lot has been achieved in these areas in recent decades.

Which disciplines outside the legal sphere have a role to play?

Almost all disciplines play a role, from psychology and neuroscience all the way to medicine, economics and sociology. We are especially interested in political science and ethnology. If we want to come to a better understanding of ourselves, it is very revealing to explore how a certain question is dealt with in other cultural environments. When parents agree that their son may be circumcised for religious reasons, the question arises whether that is an expression of the parents’ autonomy or a physical injury perpetrated against the child. On this point there is an intense polarizing debate in Germany.

One could say that it actually depends on the cultural environment…

Yes, exactly. At first glance one thinks that everything is quite clear and that, for example, circumcision is a question of physical harm that is difficult to conceptualize in relation to autonomy. But is that really so clear? Why do we not ask the same question when parents let their two-year-old daughter have her ears pierced, or when parents fail to feed their children nutritiously? The question thus depends on the socio-cultural context. Therefore, it is so important not only to deal with autonomy in the law within the confines of the discipline of law, but also to converse with other disciplines and sciences. Nevertheless, we must make clear, again and again, that there is no final, clear answer.

How is Bucerius Law School continuing with its work on this theme?

The topic will definitely keep us busy. Our volume “Autonomy in the Law”, which I released with Prof. Christian Bumke, has just been published. The book sets out an initial, preliminary position in this difficult field. It was not easy to find consensus among the many different perceptions and perspectives. However, what makes autonomy in the law so difficult is the same thing that attracts me as a researcher to the topic. It has always been so dear to me because it is so contentious and at the same time so relevant. The topic is quite a productive area of legal thought. I also imagine that it is a good fit for our doctoral candidates as well.