This book explores the importance of autonomy in family law. It argues that traditional understandings of autonomy are inappropriate in the family law context and instead recommends the use of relational autonomy. The book starts by explaining how autonomy has historically been understood, before exploring the problems with its use in family law. It then sets out the model of relational autonomy which, it will be argued, is more appropriate in this context. Finally, some examples of practical application are presented. The issues raised and theoretical discussion is relevant to any jurisdiction.
This book is an examination of how the law understands human identity and the whole notion of `human being'. On these two notions the law, usually unconsciously, builds the superstructure of `human rights'. It explores how the law understands the concept of a human being, and hence a person who is entitled to human rights. This involves a discussion of the legal treatment of those of so-called "marginal personhood" (e.g. high functioning non-human animals; humans of limited intellectual capacity, and fetuses). It also considers how we understand our identity as people, and hence how we fall into different legal categories: such as gender, religion and so on.The law makes a number of huge assumptions about some fundamental issues of human identity and authenticity - for instance that we can talk meaningfully about the entity that we call `our self'. Until now it has rarely, if ever, identified those assumptions, let alone interrogated them. This failure has led to the law being philosophically dubious and sometimes demonstrably unfit for purpose. Its failure is increasingly hard to cover up. What should happen legally, for instance, when a disease such as dementia eliminates or radically transforms all the characteristics that most people regard as foundational to the `self'? This book seeks to plug these gaps in the literature.
This book is an assault on the notion that it is empirically accurate and legally and philosophically satisfactory to see humans as atomistic entities. It contends that our welfare is inextricably entangled with that of others, and accordingly law and ethics, in determining our best interests, should recognise the central importance of relationality, the performance of obligations, and (even apparently injurious) altruism.
The idea of the Good Life - of what constitutes human thriving, is, implicitly, the foundation and justification of the law. The law exists to hold societies together; to hold in tension the rights of individuals as against individuals, the rights of individuals as against various types of non-humans such as corporations (and vice versa), and the rights of individuals individuals as against the state (and vice versa). In democratic states, laws inhibit some freedoms in the name of greater, or more desirable freedoms. The only justification for law is surely that it tends to promote human thriving.
But what is the Good Life? What does it mean to live a thriving life? There has been no want of discussion, at least since the great Athenians. But surprisingly, since human thriving is its sole raison d'etre, the law has been slow to contribute to the conversation.
This book aims to start and facilitate this conversation.
It aims to:
-make lawyers ask: `What is the law for?', and conclude that it is to maximise human thriving
-make lawyers ask: `But what does human thriving mean?'
-make judges and advocates ask: `How can a judgment about the best interests of a patient be satisfactory unless its basis is made clear?
This book examines the controversial and repercussive contention that an objective of the law should be to promote personal morality - to make people ethically better. It surveys a number of domains, including criminal law, tort law, contract law, family law, and medical law (particularly the realm of moral enhancement technologies) asking for each: (a) Does the existing law seek to promote personal morality? (b) If so, what is the account of morality promoted, and what is the substantive content? (c) Does it work? and (d) Is this a legitimate objective?