Чому індивідуальна свобода та автономія права існують і зникають разом

Abstract

This paper considers law as a practical art that should be autonomous so to better fulfill the law’s primary goal, which is about the settlement of conflicts, be it inside or outside a courtroom. The dominant views, today, all understand law as fulfilling a certain instrumental role, normally linked to the values of justice or efficacy. Yet something will inevitably be amiss, we argue, if the law is understood only in instrumental terms. Once we begin to understand the law purely in instrumental terms, notwithstanding how noble are the objectives pursued, it is then our autonomy as individuals that will soon be compromised. There is indeed a parallel between individual autonomy and the autonomy of law – these two kinds of autonomy stand or fall together. Individuals cannot truly be free if the law is a playfield for heteronymous forces, even if these forces are democratically elected lawgivers. We therefore oppose the classical model equating lawgivers with the law, or saying that lawgivers speak for their communities. It is imperative that the people themselves own the law. This, we think, can be best be realized with strong lawyers and with procedural constraints, permitting lawyers to force judges and the offices of the lawgivers in general to bend under the autonomy of law.