Constructing Autonomy
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 counter productive. 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.
