Transversal Dimension B: Human Rights and Autonomy

Human rights are concerned with protecting human beings from abuse, particularly by political and economic forces, for example the challenging of fundamental rights by authoritarian regimes or the use of dehumanising practices in the pursuit of commercial profit. At the same time, these human rights are highly contested not only in terms of their philosophical foundations, but also and most especially with regard to their legal nature, and should potentially be interpreted as more of a hybrid combination of law, political programming and morality in which the tension between universalism and particularism emerges. Consequently, human rights cannot be addressed as an autonomous field of law; rather they lie to some extent transverse to it and touch on key issues of the concept of the individual in the legally constituted community, political participation, economic securities and distributive justice, and community building.
Human rights transport established key social principles, for example through the protection of religious freedom or the recognition of indigenous rights. At the same time, the appeal to culture is part of the argumentative arsenal when seeking to loosen ties to human rights. But how does an understanding of law as culture deal with the fact that human rights are also relativised “in the name of culture”, even though it is questionable whether there is a valid philosophical rationale in terms of material ethics or the universal validity of the values? Are the jurists right in the end who consider human rights debates to be completely uninteresting in terms of legal dogma if the political issue of implementation is not resolved? Is it not ultimately the case that we are repeatedly “thrown back” into “bare survival/existence mode” and a community-based “right to have rights” (H. Arendt) in a civil context, and does not Durkheim’s theory of the sacredness of the individual lead us out of the dilemma of a religious strategy of reasoning that examines the diversity of religious orientations in the global modernity of culturalistic relativism of universally intended claims of validity? What role is played by the derivation of human rights from an experience of suffering (U. Baxi), and to what extent can we trust suffering as an emotive foundation of human rights which simultaneously involves empathy, a topic which was examined systematically by the Center’s namesake? The refugee crisis provides Europe with an opportunity to redefine empathy in a human rights context. This crisis is highlighting the links between the economy, culture, politics and empathy, creating potential for the emergence not only of a new system of ethics, but also of a new approach to putting human rights into practice.
Given the issue of how the “person” should be viewed in the tension between the individual and the community, and against the backdrop of competition between social fields and normative orders, “autonomy” arises as a basic term with multiple layers in a history of ideas context. In Greek antiquity, “autonomy” was linked to the political appeal for self-determining city-states free from interference by external powers. For his part, Kant turned the term into a key concept in enlightenment philosophy when referring to the moral legislative capacity of the rational individual which also serves as the basis for the right of that individual to be respected. In a human rights context, the political, philosophical and juridical facets of the issue of autonomy intermesh with one another, while at another level the differentiation theory perspective raises the question of the autonomous protection of the legal sphere against competing claims to validity.
Autonomy and self-determination are considered to be and employed as the foundation of modern constitutional states. Even beyond the nation state level, postulates of autonomy are protected in basic and human rights legislation, in particular through the ECHR, as well as by UN conventions at international level. The fundamental freedoms within the European Union guarantee rights across national borders. These rights remove the relevance of territorial borders in the autonomous decisions of individuals. Having now moved far beyond economic integration and entered other political fields, these freedoms are designed to facilitate the establishment of a supranational legal system which shows the basic conditions of a European legal culture guaranteeing autonomy to be an important field of research.
The freedom of choice of law, enshrined in national and supranational law as party autonomy, is the key expression of private autonomy. This freedom is guaranteed in the area of legal business relations and, increasingly, also in matters of family and inheritance law. Its boundaries are marked out by the ordre public of the forum state as the classic gateway to fundamental and human rights which may be opposed, for example, to divorce by talaq or to the requirement for women to repay the bride price in order to divorce under Islamic and Jewish law. Traditionally, parties are not limited to the choice of state law when appearing in arbitration courts. As a result, religious law can be chosen, even beyond state application, and then enforced by the state. Turning to conflicts of legal cultures, it is necessary to pay particular attention to the application of religious law by arbitration courts, increasingly common in family law disputes as well, in order to sound out the tension between religious freedom, individual autonomy, cultural identity and women’s rights and to address issues of legitimacy and acceptance in dialogue between the different disciplines. In all of these current cases of conflict, it is evident that not only is personal autonomy coded differently culturally speaking, but also fundamental rights are fleshed out differently, depending on whether the focus is on individual or communal autonomy.
Autonomy is brought to bear in a whole range of areas, of which only a few examples can be provided here. To differing extents in different legislation and legal cultures, private autonomy is safeguarded as the cornerstone of private law and guaranteed beyond death with the freedom to make a will. Patient autonomy refers a person’s right to make decisions about his or her own body and life, and also relates to the limitations placed by legal cultures on euthanasia. Self-determination also manifests itself as reproductive autonomy. Finally, individual autonomy has recently been extended to gender and sexual identity. While autonomy in a family context is primarily linked to the emancipation of women, children’s rights are increasingly finding protection under fundamental and human rights legislation at national and international level. At the same time, the rights of elderly and disabled persons and individuals suffering illness represent an important area for examination as part of the “Law and Community” thematic field.