Taking Raz Seriously: On the Value of Autonomy and its Relation to Private Law

Abstract

In this chapter I raise some general considerations about the relevance of Raz’s theory of autonomy to private law. I hope to show that Raz’s theory of autonomy meshes pretty seamlessly with what I shall call a Kantian instrumentalist account of private law, pointing out an aspect of his theory which I don’t think has been given sufficient attention, that is, the ‘independence’ condition for autonomy. I shall then provide reasons for proceeding with caution if we aim to show that private law gives effect to the ‘range of options’ condition for autonomy Raz identifies. I shall turn to Dagan’s and Heller’s conception of autonomy, distinguish it from Raz’s, and raise some questions about its nature and effectiveness in explaining private law.

Keywords: autonomy, private law, Raz