Introducing, Defining and Balancing 'Autonomy vs. Paternalism'

Autonomy is generally regarded as the fundamental right of individuals to shape their own future through voluntary action. In private law, it is associated with freedom of contract and the concept of casum sentit dominus (the loss lies where it falls). As such, it is opposed to legal paternalism, briefl y defi ned as instances in which legislation or the courts interfere with the individual’s decision-making process on the grounds that otherwise decisions will not be made in the individual’s own best interests. Traditionally, legislation protecting the estate of minors and mentally disabled individuals against the consequences of their actions is considered the prime example of paternalism. However, such protection against the risks of succumbing to weakness and extortionary practices is nowadays ubiquitous in Western society. The level of protection differs from domain to domain. The prohibition of trading in humans as a commodity – ranging from slavery to prostitution and selling organs – seems to have little in common with restrictions on freedom of contract in marital and family issues or with gambling regulation, but the essential commonality is the substitution of voluntary individual decision-making with the decision that the legislator or court finds the most appropriate. Obviously, there is no strict definition of paternalism. Indeed, the definitions used may provide an indication of the author’s own views. If paternalism is defined in terms of governments assuming the power to determine what is best for citizens because the latter cannot be trusted to make decisions in their own best interests, it may be concluded that the author is somewhat sceptical of such state intervention. Some define paternalism as coercive intervention with the behaviour of individuals in order to prevent them from causing harm to themselves. Some authors focus on the grounds of justification for intervention as the defining element in paternalism: state intervention is paternalistic if it purports to increase the individual’s welfare and happiness or to further his or her interests, needs and values. The authority for interfering is thought by some to lie in the mere coercive powers of the state, whereas others take a more sophisticated approach by arguing that paternalism may be founded on a hypothetical contract with the individual.