Florence (Year 13)
Editor’s note: Year 13 student Florence, applying to study Law at university, wrote this insightful piece exploring the extent to which law should intervene in personal autonomy. Florence carefully concludes that whether or not the law should intervene is a complex issue that is largely based on the individual case – there is a delicate balance to be struck. CPD
In order to assess the extent to which the law should intervene in personal autonomy two contradicting principles are involved which must be weighed up – the principle of autonomy and the welfare principle. The principle of autonomy being where the needs of the individual are prioritised over the needs of society. The welfare principle being where the needs of society are prioritised over the individual. A balance is necessary in order to prevent anarchy and at the same time an authoritarian dictatorship, therefore the law must intervene in personal autonomy but not to the extent where all freedom is abolished. Therefore, the law shouldn’t intervene in personal autonomy to a large extent or to a minimal extent as a balance must be achieved based on the case. Scenarios where the law must intervene are when it’s necessary to ensure stability exists in society orderly and to protect vulnerable individuals. However, at the same time the law should not intervene to the extent that the right to a private life in article 8 of the ECHR is undermined.[1]
The law examined will be that of the England and France in order to form the argument taking the meaning of personal autonomy to be the ability to make independent decisions freely.[2]
One reason why the law should intervene is to ensure law and order exists which results in the restriction of individual autonomy. This is emphasised in the case of R v Brown [1993] where a group of more than 40 men engaged in sadomasochism. Some in the group were masochists who actively wanted pain to be inflicted on them and others were sadists who enjoyed inflicting the pain. The activities the group engaged in were varied but some include, branding, piercing and beating. It is important to note that the activities weren’t carried out in public; consent was given; the police weren’t contacted; the injuries didn’t lead to infection and ‘safety words’ existed in order to ensure the pain inflicted wasn’t too extreme. The police found videos of the sadomasochistic activities and individuals within the group, were charged under section 20 and 47 of the Offences Against the Person Act 1861. The criteria under these two acts were fulfilled by the individuals but the fundamental issue was the element of consent. As all individuals consented to the sadomasochism, this can act as a defence. The law in England accepts that when an individual consents to harm then this is a legitimate defence. For example, one consents to harm when getting a tattoo or piercing and the inflictor of the harm is not charged with a criminal offence. The ruling of the case was that the activities of Brown were unlawful as consent in not a valid defence to bodily harm. The court determined that inflicting harm for the purpose of sexual gratification was against public interest and therefore was unlawful. The basis of this ruling was that it is within the best interests of society that sadomasochists are convicted for inflicting pain. HLA Hart and John Stuart Mill argue that the criminal law should intrude only to ensure that people’s interests are not ‘adversely affected’ and therefore if consent if given for pain it does not adversely affect the individuals.[3] However, due to the doctrine of precedent, it would undermine societal stability if it was legally and morally acceptable to harm other individuals to such the great extent in Brown. Therefore, consent does not justify the crime and it was necessary for the law to intervene in personal autonomy in order to uphold stability.
However, on the other hand the protection of social stability at the expense of individual rights can be abused as shown in the principle of laicité in France. In these instances, the law shouldn’t intervene in personal autonomy to the extent it does. This is highlighted in the Journal of Law and Religion which highlights the extent to which the state under the ECHR, ‘can impose restrictions on garments associated with religious beliefs.’ The Journal argues that personal autonomy should be the guiding principle in these religious matters. Yet, in France, laïcité bans the outward expression of religion in public places.[4] This included the 2004 law which prohibits students from wearing headscarves in public schools.[5] The UN Special Rapporteur on Religion and Belief argues that this French law, ‘appears to mainly target girls from a Muslim background wearing the headscarf.’[6] Therefore, this intervention into personal autonomy through laïcité disproportionately disadvantages a certain minority and in this way the defence of laïcité to give equality to all religious groups under the law[7] is not sufficient as it severely inhibits the right to freedom of expression a prominent element of personal autonomy. This therefore proves that in cases such as laicité, the law should not intervene in personal autonomy to the extent that it does.
The law should also intervene in individual autonomy in order to protect vulnerable individuals from self-harm. The law can override personal autonomy to prevent persons from harming themselves and in this way protect vulnerable individuals through the principle of paternalism. Under the Mental Health Act (1983,) a person can be detained without their agreement (a clear infringement on personal autonomy) in order to reduce the risk of harm to themselves and to others on the grounds of a lack of capacity when there is an urgent need for treatment.[8] In cases such as this the law should intervene in personal autonomy in order to protect vulnerable individuals such as those with mental health conditions.
Despite the recognised European Human Right of respect for your private and family life, there are limitations to the extent of this aspect of personal autonomy in the interest of protecting:
- National security
- Public safety
- The economy
- Health or morals
- Disorder or crime
- The rights and freedoms of other people[9]
As highlighted, the law does intervene in personal autonomy and should as it protects many other aspects of society which on balance following the principle of utility, it is more important to prioritise for example national security rather than the right to a private life which is a clear and necessary intervention of the law into personal autonomy.
Overall, is it evident that the whether the law should intervene in personal autonomy is a complex issue that is largely based on the individual case. The law cannot fully intervene in personal autonomy as this would create a restricted totalitarian society where human rights aren’t present. And on the other hand, the law cannot not limit personal autonomy through intervention as this would create a chaotic society and pure anarchy. The balance can be achieved through the principle of utilitarianism where the interests of the majority are prioritised in certain cases and the principle paternalism is prioritised in others where the state restricts personal autonomy to act in the best interests of the individual. However, as shown in laicité, the law shouldn’t intervene to the extent it does in prohibiting the wearing of the burqa and in mental health cases the law should intervene to a large extent in order to protect vulnerable individuals. This illustrates how a balance is necessary and the law should intervene in personal autonomy to a great extent in some cases and a minimal or lesser extent in others.
Bibliography
Barnard, Catherine, Janet O’sullivan, and Graham Virgo. 2021. What about Law? : Studying Law at University. Oxford England ; Portland, Or: Hart Pub, 40-57.
Cumper, Peter, and Tom Lewis. “‘TAKING RELIGION SERIOUSLY’? HUMAN RIGHTS AND HIJAB IN EUROPE—SOME PROBLEMS OF ADJUDICATION.” Journal of Law and Religion 24, no. 2 (2008): 599–627. http://www.jstor.org/stable/25654331.
Cambridge Dictionary. 2019. “AUTONOMY | Meaning in the Cambridge English Dictionary.” Cambridge.org. 2019. https://dictionary.cambridge.org/dictionary/english/autonomy.
EHRC. 2021. “Article 8: Respect for Your Private and Family Life.” Equality and Human Rights Commission. June 24, 2021. https://www.equalityhumanrights.com/human-rights/human-rights-act/article-8-respect-your-private-and-family-life.
Fornerod, Anne. 2023. “French Secularism: ‘the 2004 Law Banning Religious Symbols in Schools Was Ambiguous from the Outset.’” Le Monde.fr, September 20, 2023. https://www.lemonde.fr/en/opinion/article/2023/09/20/french-secularism-the-2004-law-banning-religious-symbols-in-schools-was-ambiguous-from-the-outset_6138098_23.html.
Institute, UCL European. 2021. “Lessons from Laïcité.” UCL Europe Blog. January 28, 2021. https://ucleuropeblog.com/2021/01/28/lessons-from-laicite/.
NHS. 2022. “Mental Health Act.” Nhs.uk. NHS. September 7, 2022. https://www.nhs.uk/mental-health/social-care-and-your-rights/mental-health-and-the-law/mental-health-act/.
[1] EHRC. 2021. “Article 8: Respect for Your Private and Family Life.” Equality and Human Rights Commission. June 24, 2021. https://www.equalityhumanrights.com/human-rights/human-rights-act/article-8-respect-your-private-and-family-life.
[2] Cambridge Dictionary. 2019. “AUTONOMY | Meaning in the Cambridge English Dictionary.” Cambridge.org. 2019. https://dictionary.cambridge.org/dictionary/english/autonomy.
[3] Barnard, Catherine, Janet O’sullivan, and Graham Virgo. 2021. What about Law? : Studying Law at University. Oxford England ; Portland, Or: Hart Pub, 40-57.
[4] Cumper, Peter, and Tom Lewis. “‘TAKING RELIGION SERIOUSLY’? HUMAN RIGHTS AND HIJAB IN EUROPE—SOME PROBLEMS OF ADJUDICATION.” Journal of Law and Religion 24, no. 2 (2008): 599–627. http://www.jstor.org/stable/25654331.
[5] Fornerod, Anne. 2023. “French Secularism: ‘the 2004 Law Banning Religious Symbols in Schools Was Ambiguous from the Outset.’” Le Monde.fr, September 20, 2023. https://www.lemonde.fr/en/opinion/article/2023/09/20/french-secularism-the-2004-law-banning-religious-symbols-in-schools-was-ambiguous-from-the-outset_6138098_23.html.
[6] Asma Jahangir, UN Econ & Soc. Council, Commn, on Human Rights, Civil and Political Rights, Including the Question of Religious Tolerance U.N. Doc. https://digitallibrary.un.org/record/563080?ln=en. Cited in:Cumper, Peter, and Tom Lewis. “‘TAKING RELIGION SERIOUSLY’? HUMAN RIGHTS AND HIJAB IN EUROPE—SOME PROBLEMS OF ADJUDICATION.” Journal of Law and Religion 24, no. 2 (2008): 599–627. http://www.jstor.org/stable/25654331.
[7] Institute, UCL European. 2021. “Lessons from Laïcité.” UCL Europe Blog. January 28, 2021. https://ucleuropeblog.com/2021/01/28/lessons-from-laicite/.
[8] NHS. 2022. “Mental Health Act.” Nhs.uk. NHS. September 7, 2022. https://www.nhs.uk/mental-health/social-care-and-your-rights/mental-health-and-the-law/mental-health-act/.
[9] EHRC. 2021. “Article 8: Respect for Your Private and Family Life.” Equality and Human Rights Commission. June 24, 2021. https://www.equalityhumanrights.com/human-rights/human-rights-act/article-8-respect-your-private-and-family-life.
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